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State v. Montano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EZEQUIEL MONTANO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-00164.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2008

Before Judges Winkelstein and Yannotti.

Defendant Ezequiel Montano was charged under Union County Indictment No. 03-02-00164 with possession of a controlled dangerous substance (CDS), specifically cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); and possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three). Andrea Slawinski also was charged in counts one and two.*fn1

While these charges were pending, defendant was charged under Union County Indictment No. 04-06-6691 with conspiracy to distribute or possess with intent to distribute heroin, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count one); and conspiracy to distribute or possess with the intent to distribute cocaine in a quantity of five ounces or more, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count two).

On January 25, 26, and 27, 2005, defendant was tried to a jury on the charges in Indictment No. 03-02-00164, and found guilty on all counts. Thereafter, on February 28, 2005, defendant pled guilty to count two in Indictment No. 04-06-6691.

On April 29, 2005, the court sentenced defendant on the convictions arising from the two indictments.

With regard to the convictions under Indictment No. 03-02-00164, the judge merged the convictions on count one with the conviction on count two, and sentenced defendant on count two to a fifteen-year term of incarceration, with a 60-month period of parole ineligibility. The judge sentenced defendant to a four-year term of incarceration on count three, to run concurrently with the sentence on count two. Defendant's driving privileges were suspended for twenty-four months. The judge additionally imposed fees, penalties and assessments.

On Indictment No. 04-06-6691, the judge sentenced defendant to a seven-year custodial term, with a twenty-eight month period of parole ineligibility, to be served concurrently with the sentences imposed on Indictment No. 03-02-00164. The court also imposed fees, penalties and assessments. Defendant appeals from the convictions and sentences imposed under Indictment 03-02-00164.

Defendant raises the following issues for our consideration:

POINT I.

THE CO-DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE OFFICER'S ENTRY INTO THE HOME WITHOUT A SEARCH WARRANT CONSTITUTED AN ILLEGAL SEARCH AND SEIZURE PURSUANT TO THE NEW JERSEY CONSTITUTION.

POINT II.

THE MOTION COURT COMMITTED ERROR IN FINDING DETECTIVE SMITH'S TESTIMONY AT THE SUPPRESSION HEARING TO BE CREDIBLE, THEREBY VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT III.

DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not raised below).

POINT IV.

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTTION'S EXPERT WITNESS TO TESTIFY TO FACTS NOT CONSISTENT WITH INFORMATION IN HIS REPORT, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT V.

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO REVIEW DETECTIVE MOONEY'S PERSONNEL RECORD IN CAMERA.

POINT VI.

THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING DEFENADNT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW (Not raised below).

POINT VII.

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

POINT VIII.

THE SENTENCE IMPOSED BY THE COURT VIOLATED DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

For the reasons that follow, we find these contentions to be without merit, and therefore affirm.

I.

We turn first to defendant's arguments that the trial court erred by denying co-defendant Andrea Slawinski's motion to suppress and by finding that the testimony given at the suppression hearing by Detective Lawrence Smith was credible.

Smith testified that he is a detective in the narcotics unit of the Elizabeth Police Department. On July 26, 2002, Smith was assisting Detective James Mooney, who also was assigned to the department's narcotics unit, with surveillance of a single-family residence at 1113 Seib Avenue. According to Smith, Mooney had previously received information that drugs were being sold from the premises.

Mooney radioed Smith and said that he had observed someone purchase drugs from a male who left the house, and the male had gone back into house. Smith testified that he observed a female pull up to the house and he saw a male approach the vehicle. Smith did not see the drug transaction. Mooney left the scene to follow the purchaser, and he told Smith to go to the side door, along the driveway, and knock on the door.*fn2

Smith went to the door and knocked. Slawinski answered the door and Smith identified himself. Smith was in plain clothes but his badge was exposed. Smith told Slawinski that he was a policeman and he asked Slawinski if he could come inside. Slawinski said that he could. Smith entered on the landing, which was midway between the basement and the first floor. Slawinski was in front of Smith. Slawinksi went downstairs towards the basement and Smith followed him.

At the bottom of the stairs, to the right, Smith observed a "a soft . . . large lunch box size cooler." Smith stated that the lid was "unzipped, but folded down." Smith said that, on the top of the cooler, he observed "a large bag with several other smaller bags in it[.]" He suspected that the bags contained cocaine. To his left, Smith saw defendant. Smith indicated that he was surprised because he did not expect to see another person. Smith ordered Slawinski and defendant to show their hands. At this point, two other uniformed officers arrived to provide assistance.

Slawinski and defendant were placed under arrest. A search warrant was obtained, and the basement was searched. Smith said that, in the search, the officers found several bags of cocaine, some money, a scale, a cell phone, a bulletproof vest, as well as other items related to the distribution of cocaine.

Slawinski testified that on the afternoon of July 26, 2002, he and defendant were playing chess in his bedroom in the basement of the residence at 1113 Seib Avenue. Slawinski said that defendant received a phone call, went outside and came back about two minutes later. Thereafter, Slawinski heard someone knocking at the door. It was Detective Smith. He was with two other uniformed police officers.

According to Slawinski, defendant opened the door. The officers handcuffed Slawinski and defendant and put them in the kitchen for "[m]aybe an hour and a half, [or] two hours." Slawinski said that Smith searched the premises while he and defendant were in handcuffs. Slawinski indicated that Smith's testimony was not a fair representation of what had occurred. He said that defendant's lunch box was in the basement but it was not at the bottom of the stairs.

On cross-examination, Slawinski testified that he kept the door to his bedroom shut and locked because he knew that defendant had drugs in there. Slawinski did not want his parents or sister to enter his bedroom. Slawinski also said that he knew defendant for about six years and he would store the drugs for him. Slawinski indicated that he kept the drugs in his apartment but he claimed that he did not sell them.

The motion judge placed his decision on the record. He noted that Smith and Slawinski had provided different versions of what had occurred when Smith entered the house. The judge found that Detective Smith's testimony was more credible than Slawinski's testimony. He noted that Slawinski had a motive to "tailor [his] testimony in a light favorable to his" position because he was facing "a substantial criminal charge[.]"

The motion judge also found that Smith was justified in conducting an investigation based on the information that Mooney had provided to him. The judge noted that Smith had entered the door to the landing and, from that spot, he could observe the area at the bottom of the steps. The judge stated that Smith was able to see the cooler or lunch box at the bottom of the steps. The judge found "as a fact that Detective Smith indeed did see what, based upon his training and experience, appeared to be a quantity of CDS."

The motion judge additionally found that Smith was legally in a position to view the evidence. Smith had been invited by Slawinski into the house and his discovery of the CDS was inadvertent. Moreover, the judge pointed out that Smith did not take any steps to uncover the drugs because the drugs "were out in the open, sitting on top of the cooler[.]"

The judge determined that Smith had probable cause to associate the property with criminal activity. He concluded that the seizure of the CDS in plain view did not violate the Fourth Amendment. The judge additionally determined that there was probable cause for the issuance of the search warrant after the initial seizure of the narcotics. Accordingly, the judge denied the motion to suppress the evidence.

Defendant argues that the judge erred by finding that Smith lawfully entered Slawinski's home and that the CDS at the bottom of the basement stairs was in plain view. Defendant contends that Smith did not have a legal basis for entering the home without a search warrant and any CDS found in plain view was improperly seized as the "fruit of the poisonous tree." We are convinced that these arguments are entirely without merit.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens from unreasonable searches and seizures. State v. Bruzzese, 94 N.J. 210, 216 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). A warrantless search is presumed to be invalid unless it comes within one of the recognized exceptions to the warrant requirement. Id. at 218. The "plain view" doctrine is one such exception.

The "plain view" exception applies if three conditions are satisfied. First, the officer "must be lawfully in the viewing area." Id. at 236 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 2037-39, 29 L.Ed. 2d 564, 582-84 (1971)). Second, the officer must find the evidence "inadvertently," which means that the officer "did not know in advance where [the] evidence was located nor intend beforehand to seize it." Ibid. (citing Coolidge, supra, 403 U.S. at 470, 91 S.Ct. at 2040, 29 L.Ed. 2d at 585). Third, it must have been "immediately apparent" to the officer that the items found in plain view were evidence of a crime. Ibid. (citing Coolidge, supra, 403 U.S. at 466, 91 S.Ct. at 2038, 29 L.Ed. 2d at 583).

We reject defendant's contention that Smith was not lawfully on the premises. In our view, the judge properly found that Smith had a reasonable basis to undertake an inquiry at Slawinski's house residence. As Smith explained, Mooney had informed him that he observed a person leave the residence, engage in a drug transaction, and return inside. In furtherance of his investigation, Smith knocked on the door, identified himself, and was given access to the home. Smith's actions were reasonable and appropriate.

The judge's decision to deny the motion to suppress was entirely in accord with the principles set forth in State v. Stanton, 265 N.J. Super. 383, 386 (App. Div. 1993). In that case, the police received a call from an anonymous informant who advised that narcotics were being sold from a certain motel room. Id. at 384. The informant also said that there were weapons in the room. Ibid. That evening, several officers went to the motel to investigate the tip. Id. at 385. One of the officers knocked on the door and identified himself as a police officer. Ibid. A person in the room pulled back a curtain at the window and, from the hallway, the officer observed a plastic bag containing a white powdery substance, which the officer recognized as cocaine. Ibid. The other officers were summoned to the room and they seized the drugs. Ibid.

We held that the officer's entry into the motel room was the result of a reasonable police investigation. Id. at 386. We noted that the information provided to the police was not adequate to support the issuance of a search warrant. Ibid. We added, however, that there was: nothing constitutionally offensive in the decision of the police to proceed to the scene and investigate. Indeed, the officers would have been derelict in their duty had they failed to do so. We also perceive nothing unreasonable in the officers' decision to knock on the motel room door and identify themselves. Whether or not this conduct was intended to detect criminal activity, it was not unreasonable or inconsistent with Fourth Amendment principles. We assume that the police routinely respond to complaints of criminal conduct by proceeding to the scene, announcing their presence and making reasonable inquiries. That is their job.

We know of no constitutional prohibition barring such conduct. [Ibid.]

The judge's decision in this case also was consistent with State v. Padilla, 321 N.J. Super. 96 (App. Div.), certif. denied, 162 N.J. 198 (1999). There, the police received an anonymous tip that a person was seen entering a certain motel room carrying a handgun. Id. at 102-03. The police went to the motel and knocked on the door. Id. at 103. One of the occupants opened the door and the police entered. Ibid. An officer observed cash on top of a bag. Id. at 104. The officer lifted the bag and found ammunition. He also observed the handle and hammer of what appeared to be a gun. Ibid. The officer picked up the gun and saw that it was loaded and cocked. Ibid.

We upheld the denial of the defendant's motion to suppress the evidence found in the motel room. Id. at 107-10. We noted that that police went to the motel room, not to conduct a search, but to investigate the anonymous tip. Id. at 107. We stated that, while the anonymous caller did not give the police sufficient information for the issuance of a search warrant, "the police had the right, if not the obligation, to proceed to the scene in order to investigate the report that a person with a gun was in the motel room." Ibid.

We added that, once inside the room, the officers "acted reasonably in making visual observations to assure themselves that no weapons were present or that none of the occupants reached for a weapon." Id. at 108. We held that the items in the room "were properly seized under the plain view exception to the search warrant requirement." Ibid.

Defendant argues that the record does not support the judge's finding that Smith undertook a reasonable inquiry because he did not immediately begin to ask Slawinski questions when he entered the home. Defendant maintains that, instead of conducting a reasonably inquiry, Smith merely followed Slawinski to the bottom of the stairs. Defendant further argues that Smith's stated intention of conducting an investigation was a pretext to search the residence without a search warrant because the officers arguably had probable cause to obtain a warrant. We are convinced that these arguments are without merit. In our view, the record fully supports the trial court's finding that Smith undertook a reasonable inquiry based on information provided to him by a fellow police officer.

Defendant additionally contends that the judge erred by finding Smith's testimony to be more credible that Slawinski's testimony. However, we must defer to the judge's findings of fact because they are "'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "Due deference must be given to the judge's assessment of credibility since he heard the case, saw and observed the witnesses, heard them testify, and had the best opportunity to assess their credibility." Padilla, supra, 321 N.J. Super. at 107 (citing Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

II.

We next consider defendant's argument that he was denied his right to a fair trial because the assistant prosecutor made certain allegedly improper comments in his summation.

We consider these contentions in light of several well-established principles. "The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Although a prosecutor has a duty to use every legitimate means to bring about a just conviction, the prosecutor must refrain from improper methods which are calculated to produce a wrongful conviction. State v. Farrell, 61 N.J. 99, 104-5 (1972) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 2d 1314, 1321 (1935)). Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).

We must determine whether the prosecutor's comments were improper and, if so, whether the comments were "so egregious that [they] deprived the defendant of a fair trial." Id. at 83 (citing Ramseur, supra, 106 N.J. at 322; State v. Siciliano, 21 N.J. 249, 262 (1956)). In doing so, we consider "the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Ibid. (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). However, if defense counsel did not object to the remarks, the comments ordinarily "will not be deemed prejudicial." Ibid. (citing Ramseur, supra, 106 N.J. at 323).

Here, defendant contends that the following comments by the prosecutor were improper:

Even if you believe that . . . this operation was Andrew Sslawinski's, the defendant is still guilty of all the crimes charged. He is down there. He is in possession just as much as Andy is even if you do believe their story that it [was] Andy's operation.

Defendant argues that the assistant prosecutor's remarks were a misstatement of the law and improperly shifted the burden to defendant to prove his innocence. Defendant contends that mere presence around contraband is not sufficient to establish possession.

However, the judge specifically charged the jury that the State had the burden to prove beyond a reasonable doubt all elements of the charged offenses. Moreover, the judge explained that, under the law, possession: means that a defendant must knowingly procure or receive the item possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chooses to do so. A person may possess cocaine or, indeed, any item even though not physically on his person at the time of his arrest if he had, in fact, at some time prior to his arrest had control and dominion over it.

Now, when we speak of possession, we mean a conscious, knowing possession. The law recognizes two kinds of possession. They are actual possession and constructive possession. A person is in actual possession of a particular thing or article when he knows what it is; that is, he has knowledge of its character and he knowingly has it on his person at a given time. The law recognizes that possession may also be constructive instead of actual. A person with knowledge of its character knowingly has direct physical control over a thing at a given time is in actual possession of it.

Constructive possession means the possession in which the person does not have it physically on his person but though not physically on his person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.

We note that there was no objection by defense counsel to the prosecutor's statements. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. In any event, we are satisfied that, even if the prosecutor's comments are considered to be a misstatement of the law, in light of the judge's thorough charge on the issue of possession, the prosecutor's remarks did not deprive defendant of a fair trial.

Defendant also argues that the following statements by the assistant prosecutor in his summation were improper:

Not only that, this is Mr. Slawinski's operation, according to defendant, he was limping at the time. Let's get it straight. This is all Andrew Slawinski's stuff, somebody who admittedly can't read or write. He has over $5,000 worth of cocaine in his basement with these scales that he packages up for delivery and he sells for profit, that's all Andrew Slawinski['s] but not only that, I guess he uses and tells the defendant to go upstairs and make a sale. Go out, take this knot and make a sale for me. The defendant who says he was limping at the time.

Defendant did not testify at trial. He concedes that the prosecutor properly mentioned his disability because defense counsel had relied upon that fact to contest the identification of defendant as the person who emerged from the house and engaged in the drug transaction with Vasquez. However, defendant contends that by referring to "defendant" rather than to "defense counsel," the assistant prosecutor improperly shifted the burden of proof to defendant.

We disagree. The prosecutor's two passing references to "defendant" did not shift the burden of proof in this case. Moreover, as we stated previously, the judge properly charged the jury that the State had the burden to prove all of the elements of the charged offenses beyond a reasonable doubt. The judge also instructed the jury that defendant had elected not to testify and it was his constitutional right to remain silent. The judge told the jury that it may not "consider for any purpose or in any manner in arriving at [its] verdict the fact that the defendant did not testify." We note that there was no objection at trial to the prosecutor's comments. We conclude that the prosecutor's statements did not deprive defendant of a fair trial.

III.

We turn to the arguments raised by defendant regarding his sentences.

Defendant first argues that the sentences are excessive. Here, the trial court found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge merged counts one and two and imposed a fifteen-year custodial sentence on count two, with a sixty-month period of parole ineligibility. The judge also imposed a concurrent four-year term on count three.

Defendant contends that the judge erred by failing to find additional mitigating factors under N.J.S.A. 2C:44-1b(7) (defendant has no prior criminal record, and has led a law-abiding life for a substantial period of time before the commission of the present offense); N.J.S.A. 2C:44-1b(8) (defendant's conduct was the result of circumstances unlikely to recur); N.J.S.A. 2C:44-1(9) (defendant's character and attitude indicate that he is unlikely to commit another offense); N.J.S.A. 2C:44-1b(10) (defendant is likely to respond to probationary treatment); and N.J.S.A. 2C:44-1b(11) (defendant's imprisonment would entail excessive hardship to himself or his dependents).

Defendant notes that he enrolled in a school to get a commercial drivers license so that he could support his wife and children. He says that he moved to Pennsylvania to change his environment. Defendant also expressed remorse for his wrongdoing. Defendant contends that, in light of these facts, the judge's failure to find these mitigating factors was clearly unreasonable and resulted in an unduly excessive sentence.

Again, we disagree. We are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant additionally argues that the imposition of his sentence violates his right to a jury trial under the Sixth Amendment to the Constitution of the United States and he is entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005). There, the Court held that imposition of a sentence longer than the then-applicable presumptive terms violates the Sixth Amendment if the sentence is based on judicial findings other than a prior criminal conviction. Id. at 495. However, defendant did not receive a sentence longer than the presumptive term on either count two or three. Therefore, re-sentencing under Natale is not required.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.


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