December 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERNANDEZ ESTELUS, A/K/A ESTELUS HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Fisher and Baxter.
Defendant Hernandez Estelus appeals from his May 5, 2006 conviction following a trial by jury on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count three). After the jury returned its verdict, but prior to sentencing, defendant entered a guilty plea to an unrelated indictment, No. 05-11-1261, which charged fourth-degree contempt, N.J.S.A. 2C:29-9. At sentencing, the judge merged count one of the drug indictment with count two and sentenced defendant on count two to a four-year term of imprisonment, which was concurrent to a five-year term of imprisonment on count three. That sentence was ordered to be served concurrently with the one-year term of imprisonment on the contempt charge. Appropriate fines and penalties were imposed. We affirm.
On November 18, 2004, at approximately 9:00 p.m., Elizabeth police officers Vincent Napoli and Rense Schalen were conducting undercover surveillance of Jefferson Park from their post on the third floor of an apartment building across the street. According to Napoli's testimony, by using binoculars the two were able to see an unidentified male wearing a white hat approach defendant and engage in what the officers believed was a hand-to-hand narcotics transaction. By radio, Napoli contacted backup officers DeMarco and Geddes and provided them with a description of defendant and his location. As DeMarco and Geddes drove toward defendant, he dropped a brown paper bag. DeMarco retrieved the bag, in which he found seventeen vials of cocaine. Defendant was arrested and charged with the offenses we have described.
Defendant called as a witness Hughes Brun, whom he had known for eleven years. Defendant was the godfather of Brun's child. According to Brun's testimony, on the night in question, the two walked from East Broad Street to Jefferson Park where they sat at one of the chess tables while Brun awaited a cab. As the cab approached, a police car entered the park at a high speed and stopped. Two officers emerged from the police vehicle, handcuffed defendant and put him in the back of their vehicle. Brun testified that no one in a white hat approached defendant in the park that night, defendant had no drugs in his possession that Brun knew of, and defendant did not interact with anyone in the park other than police.
On cross-examination, Brun was asked without objection whether he had ever contacted police to tell them he had information regarding the incident. Brun answered "nope." He acknowledged knowing where police headquarters and the prosecutor's office were located. He said he had never contacted law enforcement because he knew "nothing [was] going to be done about it. So it's a waste of time."
Defendant's testimony mirrored that of Brun. He denied having CDS in his possession or selling it. He asserted that the first and only time he had ever seen the brown paper bag containing the vials of cocaine was when police showed it to him while he was seated in the back seat of the police car in handcuffs.
The judge instructed the jury using the model jury charges for the three offenses in question. Defendant did not object to the charge. The jury deliberated, returning the verdict we have described. On appeal, defendant raises the following claims:
I. THE PROSECUTOR'S QUESTIONING OF HUGHES BRUN CONCERNING WHY HE DID NOT COME FORWARD EARLIER WITH HIS TESTIMONY EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA AND DEFENDANT'S CONVICTION MUST BE REVERSED. (NOT RAISED BELOW)
II. INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW)
II. THE DEFENDANT'S GUILTY PLEA TO INDICTMENT 05-11-1261 MUST BE VACATED AS IT WAS NOT VOLUNTARILY ENTERED AND DEFENDANT WOULD LOSE ANY BENEFITS TO HIS PLEA IF THIS COURT REVERSES HIS CONVICTION ON THE INDICTMENT.
We turn first to defendant's argument that the prosecutor's questioning of Brun concerning his failure to come forward earlier with exculpatory evidence exceeded the permissible scope of cross-examination. Relying on State v. Silva, 131 N.J. 438, 447-48 (1993), defendant argues that the State failed to lay a proper evidentiary foundation before cross-examining Brun about his pre-trial silence. Because defendant failed to object at trial to the cross-examination of Brun regarding his pre-trial silence, we will not reverse on this ground unless such cross-examination was error that was clearly capable of producing an unjust result. R. 2:10-2.
In particular, quoting from Silva, defendant maintains that evidence of pre-trial silence is only admissible if the State first establishes "'the witness was aware of the nature of the charges pending against the defendant, had reason to know that he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities.'" Silva, supra, 131 N.J. at 447-48 (citation omitted). Defendant further argues that before a trial court can allow such questioning, the court must hold a hearing outside the presence of the jury. We begin with this latter issue.
We agree with the State's argument that Silva contains no requirement of an N.J.R.E. 104(a) hearing. In fact, the Court recognized that the requisite evidentiary foundation can be laid during cross-examination itself. The Court observed, "During routine cross-examination, a proper foundation will either exist or not depending on the circumstances of each case and the . . . witness's answers to the questions." Id. at 449. The Court further noted that "[d]efense counsel can object to any questions or argument that fails to follow from that foundation." Ibid.
Moreover, we are satisfied that the prosecutor laid a foundation that fully satisfies the requirements of Silva. Specifically, Brun acknowledged that he was aware of the nature of the charges pending against defendant, knew that he possessed exculpatory information, understood how to convey such information to law enforcement and, by reason of his longstanding friendship with defendant, had a motive to act to exonerate him. Thus, the cross-examination of Brun amply satisfied the requirements of Silva. We reject the argument defendant raises in Point I. There was no error, much less plain error.
In Point II, defendant maintains that although the trial judge used the model jury charges, defendant is nonetheless entitled to a new trial because the judge erred by failing to mold the model charge to the specific facts of the case. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. Contrary to defendant's argument, State v. Concepcion, 111 N.J. 373, 379 (1988), did not establish an across-the-board requirement of "explain[ing] the law to the jury in the context of the material facts of the case." In fact, in Concepcion the Court recognized that in many trials the model charges are sufficient and it is not necessary to weave the facts of the case into the instructions. Ibid. Moreover, defendant's trial was straightforward and uncomplicated. Defendant has pointed to nothing concerning this trial or the testimony presented that would require the judge to tailor the charge to the particular facts of this case. Consequently, we reject the argument defendant raises in Point II.
In Point III, defendant argues that his guilty plea on the contempt charge was predicated on the expectation that the two sentences would run concurrently. He maintains that if we reverse his conviction on the drug charges, the expectation upon which he based his guilty plea on the contempt charge would thereby be eliminated. He argues that if such were to occur, his guilty plea on the contempt charge should be vacated and the matter remanded for further proceedings. Because we have affirmed his conviction on the drug charges, we need not address this argument.
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