March 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YOAN PERALTA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges Parrillo and S.L. Reisner.
Following a trial by jury, defendant Yoan Peralta was convicted of fourth-degree possession of marijuana in a quantity less than one ounce with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count 1); two counts of third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (counts 2 and 6); third-degree possession of PCP, N.J.S.A. 2C:35-10(a)(1) (count 4); and second-degree possession of PCP in a quantity of less than 10 grams with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-(b)(3) (count 5).*fn1 At sentencing, the court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed, after appropriate mergers, an aggregate twelve-year term subject to a four-year parole bar. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on May 20, 2005, at 9:30 p.m., three members of the Passaic Police Department's street crimes unit -- Officers John Vaccaro, Raymond Rodriguez and Marvin Eugene -- were on routine patrol in an unmarked police car near the intersection of Martha Place and Monroe Street, within 1000 feet of Public School #11. The officers were in uniform with a police insignia on the front, and the word "police" on the back. As they approached, Eugene noticed three men and a woman standing on the corner drinking beer. Vaccaro stopped the car and the three officers got out to issue summonses for the municipal ordinance violation of drinking alcoholic beverages in public. Defendant was in the group, as was co-defendant Rolon, and two others.
As the officers approached the group, Vaccaro observed defendant, who was leaning on the hood of a parked pick-up truck eating tacos, crumble a brown paper bag and toss it to the ground behind him. At the same time, Rolon turned around and started walking away. Eugene followed him and saw Rolon throw a clear plastic bag to the ground. When Eugene recognized the contents as crack cocaine, he picked up the bag, placed Rolon under arrest, and alerted his fellow officers to his discovery.
This prompted Vaccaro to pick up the brown paper bag he had earlier seen defendant discard. Inside the bag was a large bundle of marijuana, nine small baggies of marijuana, and six baggies of marijuana laced with PCP. Immediately upon Vaccaro's discovery, Rodriguez placed defendant under arrest and patted him down, finding eighty-three small unused small plastic baggies in defendant's jacket pocket. The unused baggies found in defendant's pocket were identical to the baggies containing marijuana which were in the brown paper bag that defendant had discarded.
Both defendant and his mother, Eduarda Silverio, testified on his behalf. According to Silverio, on the evening in question, defendant accompanied her to her sister's house for dinner but remained outside, eating a taco from a corner restaurant on the hood of a car parked in front of the restaurant. Meanwhile, Silverio was standing outside her sister's house, four houses away, waiting for defendant to finish eating. She watched defendant the entire ten minutes and never saw him throw a bag to the ground.
Defendant also denied throwing a bag to the ground. While the other individuals in the group were drinking beer in public, he was eating tacos on the hood of a truck, standing with Rolon when the police arrived. According to defendant, Eugene found the paper bag behind him on the ground and Rodriguez then said, "If you don't say anything, we've got to take . . . everybody down for this." Although defendant admits being patted down, he denies that Rodriguez found the eighty-three empty baggies in his jacket pocket. Evidently crediting the State's version, the jury convicted defendant of all drug-related offenses charged save for the two counts (counts 3 and 7) not moved for trial by the State.*fn2
On appeal, defendant raises the following issues:
I. THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. DEFENDANT WAS FORCED TO GO TO TRIAL WHEN HIS DEFENSE WAS NOT READY AND, THEREFORE, WAS DENIED A FAIR TRIAL.
We find no merit in either contention.
Defendant first contends the verdict was against the weight of the evidence. Since it appears that defendant never moved below for a new trial on this ground, the issue is not cognizable on appeal. R. 2:10-1; State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993).
But even if we proceed to the merits in the interest of justice, defendant's contention fails. In considering whether a jury verdict is against the weight of the evidence, our task is to decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must sift through the evidence to "determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). But we may not overturn the verdict "merely because [the jury] might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). Appellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." Ibid.
Here, defendant seems to be arguing, essentially, that because there was no evidence of defendant's fingerprints on the brown paper bag, the verdict must be set aside. We disagree. Officer Vaccaro observed defendant crumble a paper bag and toss it to the ground and, once recovered, that bag contained one large quantity of marijuana, nine smaller baggies of marijuana, and six baggies of marijuana laced with PCP. In addition, Officer Rodriguez found eighty-three unused baggies, identical to the baggies in the paper bag, inside defendant's jacket pocket. This evidence, in conjunction with the testimony of the State's expert, as well as defendant's stipulations and the city map, clearly formed a sufficient basis for a reasonable jury to conclude that the State established each element of the charged offenses beyond a reasonable doubt. Although defendant denied possessing the drugs and offered a different version at trial, where, as here, the jury's verdict is grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced. State v. Haines, 20 N.J. 438, 446-47 (1956). We are satisfied that the jury here was neither mistaken nor prejudiced.
Lastly, defendant contends that the trial judge improperly denied his adjournment request to allow defense counsel more time to locate and prepare his witnesses. Specifically, defendant asserts that his mother was unavailable at the time because she was out of the country; that more time was needed to locate a taco vendor who witnessed defendant's arrest; and that denial of his postponement request prevented defendant from calling his former girlfriend, with whom he was speaking on the telephone during the incident.
Significantly, during the pre-trial conference, defense counsel advised the court that he was "prepared to go forward with the trial . . . ." Moreover, each of the witnesses identified at that time was available to the defense. Although defendant complains that his mother had not yet then met with counsel, the fact is Silverio testified on his behalf at trial, and defendant has simply failed to demonstrate any ensuing prejudice to his defense by her purported unavailability earlier. Nor was any prejudice demonstrated with respect to the taco vendor who supposedly witnessed the incident. Defense counsel represented that he had actually located "Ralph" and that after speaking to him, decided not to call him as a witness. The following colloquy at trial clearly establishes the witness' availability:
MR. HIRSCHORN [DEFENSE COUNSEL]: Just for the record, Mr. Peralta, you and I have further discussed what the judge just indicated to you, that [t]he [c]court, through me, could force this individual from the taco stand to come by way of a subpoena. After discussing this with me you understand that, correct?
THE DEFENDANT: Yes.
MR. HIRSCHORN [DEFENSE COUNSEL]: And despite that fact, and whatever relationship you have with this individual, you do not feel comfortable, based upon his representation to you, forcing him to come here to court, is that correct?
THE DEFENDANT: Yes.
THE COURT: Okay. So it's your decision that you don't want to have him testify, is that right?
THE DEFENDANT: Yes, Your Honor.
Thus, an adjournment was not required to secure the production of this witness, who was otherwise available, but evidently not considered a favorable witness to testify on defendant's behalf. Nor was a postponement necessary to produce defendant's former girlfriend, who was not an eyewitness to the event. Indeed, defense counsel twice acknowledged her availability on the record.
It is well-settled that the granting of an adjournment is within the discretion of the trial judge. State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000); State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962). Under present circumstances, absent a demonstration of any prejudice to defendant's ability to present a viable defense, State v. Middleton, 299 N.J. Super. 22, 33 (App. Div. 1997), we discern no abuse of discretion in the trial judge's denial of the defense's adjournment request.