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State v. Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 28, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM A. BROWN, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-0463, 05-03-0339 and 05-05-0549.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2009

Before Judges Carchman and Sabatino.

Following a 2006 jury trial, defendant William A. Brown, Jr., was found guilty of several offenses arising out of his constructive possession of heroin, a controlled dangerous substance ("CDS"), in Elizabeth in January 2004. After the verdict was rendered, defendant entered into a plea agreement. Pursuant to that agreement, defendant pled guilty to specified counts of two separate Union County indictments charging him with CDS offenses committed on other dates, in exchange for the dismissal of another CDS-based indictment against him. Defendant failed to appear at his ensuing sentencing, and the court imposed an aggregate term of fifteen years, plus various fines and penalties.

On various grounds, defendant now appeals the convictions resulting from the jury trial. Defendant also contends that the trial court erred in imposing a harsher aggregate sentence than the one contemplated in his plea agreement, claiming that his absence at sentencing was justified by medical reasons. We affirm.

I.

The present appeal relates to four indictments returned by the Union County grand jury. All of them charged defendant with possessory CDS offenses.

First, Indictment 04-04-00303-I, returned on April 8, 2004, charged defendant with third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; fourth-degree possession of less than one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of less than one ounce of marijuana with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Elizabeth on September 9, 2003.

Second, Indictment 04-05-00463-I, returned on May 21, 2004, charged defendant with third-degree possession of CDS (heroin), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Elizabeth on January 28, 2004.

Third, Indictment 05-03-00339-I, returned on March 17, 2005, charged defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. The possession was said to occur in Union Township on November 18, 2004.

Fourth and finally, Indictment 05-05-00549-I, returned on May 3, 2005, charged defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The possession was alleged to have occurred in Elizabeth on January 25, 2005.

We need only discuss the proofs relating to the second Indictment, 04-05-00463-I, the one that went to trial. The case involved the discovery by Elizabeth police officers of twenty-eight envelopes of heroin stuffed inside a knit glove. The officers had spotted the glove resting on top of a trash can situated next to an alleyway, in close proximity to defendant, who was found with a matching glove.

More specifically, the State's evidence at trial included the following details relevant to our analysis. At approximately 1:00 p.m. on January 28, 2004, Elizabeth police officers Thomas Bellomo and Herec Colon were on patrol in an unmarked vehicle. It had snowed the previous night. The officers were driving down Fullerton Street when they saw defendant standing in front of an alley next to 629 Fullerton.

According to Officer Bellomo, he saw defendant place an object on top of a lidless garbage can at the mouth of the alley. Bellomo then saw defendant slowly walk east on the sidewalk, in the same direction of the patrol car. The officers pulled over to the curb. Displaying their badges, they got out of their car to speak with defendant. As they approached, Bellomo said to defendant, "hi, we're the police."

The officers asked defendant whether he lived at 629 Fullerton Street. Defendant replied that he did not, but was there to visit his cousin, Ashley Stewart. Officer Bellomo then asked defendant what he had been doing in the alley. Defendant responded that when his cousin did not greet him at the front door, he had walked down the alley and knocked on her window, again not receiving an answer.

As Colon stood with defendant, Bellomo went down to inspect the alley. In spite of defendant's claim that he had just walked down the alley, Bellomo did not observe any footprints in the snow in the alley. The only footprints that Bellomo saw were around a plastic garbage can located at the mouth of the alley. The garbage can had no lid, and snow covered the trash inside of it.

According to Bellomo, he saw a dark knit glove "[r]ight on top of the snow which was on top of the garbage." The glove was dry with no snow on it. Bellomo looked inside the glove and discovered twenty-eight small glassine envelopes containing a powdery substance. The envelopes were wrapped with rubber bands in bundles, all marked "Hot 97" in red ink.

Bellomo walked back to his partner and defendant, who was then placed under arrest. The officers searched defendant, and found in his pocket a dark knit glove matching the one found on top of the garbage can. They also found a cell phone and $80 in cash on his person.

The officers then checked the names on the mailboxes for the premises, and also questioned a person in the apartment next to the alley, but could not locate a resident named Ashley Stewart.

Officer Colon substantially corroborated Bellomo's account of the stop, arrest and search of defendant. Colon testified that he did not speak with defendant when Bellomo went down the alley. Colon also noted that defendant did not speak after initially explaining to the officers that he was there to visit his cousin. After Bellomo took the knit glove with the glassine packages from the trash can and defendant was arrested, Colon found the matching glove in defendant's right front coat pocket. Colon noted that defendant also had a tan rubber band wrapped around his right index finger.

Subsequent laboratory testing confirmed that the powder inside the glassine envelopes was heroin. Detective Antonio Pino of the Union County Prosecutor's Office, who testified as a narcotics expert, opined that the twenty-eight stamped and banded packages of heroin were most likely intended for distribution, not personal consumption. Pino explained that the knit glove appeared to have been used to conceal the heroin, and that it had been placed in a readily-accessible "stash location" within the owner's plain sight.

In his own trial testimony, defendant reiterated his claim that he had come to 629 Fullerton Street to visit his cousin Ashley. Defendant stated that he had taken the bus there, and that when he arrived, he knocked on the front door but there was no answer. He then allegedly walked down the alley, knocked on the back window without getting a response, and returned to the front of the building. Defendant acknowledged that it had snowed the night before and that there was snow on the ground, but that the "little part of the sidewalk" near the trash can was "kind of shoveled." He denied putting anything on the trash can, and also denied ever possessing either of the knit gloves offered into evidence.

As to his encounter with the two officers, defendant contended that they had not been wearing their badges and that he did not initially realize they were police. He maintained that the officers searched him before, not after, they placed him under arrest. Defendant stated that they "jumped out at me and told me to come over right away," because he "came out of the alleyway suspiciously." The officers then "immediately started searching [my] pockets." He denied that Officer Bellomo showed him a glove, but he did recall being shown "the CDS."

After considering these proofs, the jury found defendant guilty of all remaining*fn1 counts of the indictment. Defendant then entered into a plea agreement concerning the other three pending indictments.

Pursuant to the agreement, defendant pled guilty to school-zone CDS offenses, N.J.S.A. 2C:35-7, charged in count three of Indictment 05-03-0339 and in count three of Indictment 05-05-0549, respectively. The remaining counts of these two Indictments were dismissed and Indictment 04-04-0303 was dismissed in its entirety. According to the plea agreement, the State would recommend a five-year "flat" sentence on Indictment 05-03-0339, and a three-year term with a fifteen-month parole disqualifier on Indictment 05-05-0549. Additionally, the State would recommend that defendant's aggregate sentence not exceed six years, with thirty months of parole ineligibility, provided that he fulfilled the conditions of his agreement.

Following the entry of his post-trial plea, defendant was released on bail, on various conditions. The conditions included that defendant had to register immediately with the wristlet program, appear at a presentence interview, and appear for sentencing on April 13, 2006. Pursuant to State v. Subin, 222 N.J. Super. 227, 238 (App. Div.), certif. denied, 111 N.J. 580 (1988), the plea agreement specified that if defendant failed to appear and satisfy these conditions, the State could seek a higher sentence. The trial judge specifically reviewed these Subin conditions with defendant on the record at the plea proceeding. Defendant acknowledged that he understood his obligations and would appear as required.

Despite the terms of his plea agreement and the court's admonishment, defendant failed to appear for his sentencing hearing. He was subsequently arrested on May 1, 2006, for possession of marijuana.

In light of these circumstances and the various applicable statutory factors, defendant was sentenced to four years flat on the case that went to trial, Indictment 04-05-0463; a consecutive term of seven years flat on Indictment 05-03-0339; and another consecutive term of four years with a twenty-four-month parole disqualifier on Indictment 05-05-0549. Various fines and penalties were imposed, and jail credits applied.

Defendant now appeals, raising the following arguments:

POINT I.

THE DENIAL OF DEFENDANT'S MIRANDA MOTION, ALLOWING THE STATE TO PRODUCE DEFENDANT'S ALLEGED STATEMENTS AT TRIAL, WAS IMPROPER

POINT II.

THE PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO REMAIN SILENT WHEN HE QUESTIONED DEFENDANT'S FAILURE TO COMPLAIN TO POLICE ABOUT POLICE VIOLATIONS OF HIS CIVIL RIGHTS

POINT III.

ALLOWING A CLAWANS JURY CHARGE AND A NEGATIVE INFERENCE AGAINST DEFENDANT FOR NOT CALLING ASHLEY STEWART, AND ALLOWING THE STATE TO COMMENT ON THE CHARGE AT SUMMATION, DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL

POINT IV.

DEFENDANT SHOULD NOT HAVE RECEIVED A SENTENCE HIGHER THAN THAT CALLED FOR IN THE PLEA AGREEMENT, AS DEFENDANT'S FAILURE TO APPEAR WAS EXCUSED BY A MEDICAL EMERGENCY, OR, IN THE ALTERNATIVE, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS AND PROCEED TO TRIAL

None of these arguments warrant reversal of defendant's convictions or his sentence.

II.

Defendant's first point challenges the trial court's denial of his pretrial motion to suppress his statements to Officers Bellomo and Colon on the sidewalk, in which he told the officers that he had come to visit his cousin and had gone down the alley to rap on her window. He contends that he made the statements as part of a custodial interrogation, without first receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). The trial judge rejected that argument, and so do we.

"Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 384, 444, 86 S.Ct. at 1612, 16 L.Ed. at 706; see also State v. Timmendequas, 161 N.J. 515, 613 (1999); State v. Lutz, 165 N.J. Super. 278, 283 (App. Div. 1979). Exculpatory or inculpatory statements made while a defendant is in custody are not to be used in the prosecution's case-in-chief if defendant was not advised of his Miranda rights. State v. Nyhammer, 197 N.J. 383, 387 (2009); State v. Stott, 171 N.J. 343, 365 (2002); State v. Brown, 352 N.J. Super. 338, 351 (App. Div. 2002).

The test employed to determine whether a custodial interrogation has taken place is an objective one. State v. Barnes, 54 N.J. 1, 6 (1969); State v. Cunningham, 153 N.J. Super. 350, 353 (App. Div. 1977). We consider the totality of the objective circumstances surrounding the police questioning, such as "the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances." State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987); see also Stott, supra, 171 N.J. at 367-68. The analysis looks to whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave. Stott, supra, 171 N.J. at 367-68; Coburn, supra, 221 N.J. Super. at 595-96.

A preliminary field inquiry by police officers does not amount to custodial interrogation. State v. Pineiro, 181 N.J. 13, 20 (2004). Such a field inquiry is permissible so long as the "questions '[are] not harassing, overbearing or accusatory in nature.'" Pineiro, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). Moreover, where the encounter comprises a more focused "investigatory stop" authorized by Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968), based upon reasonable suspicion of criminal activity, the police may conduct "general on-the-scene questioning of a suspect" without immediately giving Miranda warnings. State v. Toro, 229 N.J. Super. 215, 220 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). "Only when a suspect's freedom of action is curtailed to a degree associated with formal arrest will the safeguards prescribed by Miranda become applicable." Ibid.; see also Berkemer v. McCarty, 468 U.S. 420, 428, 104 S.Ct. 3138, 3144, 82 L.Ed. 2d 317, 327 (1984).

Here, the trial judge evaluated the totality of the circumstances of the police's initial questioning of defendant on the sidewalk, after hearing pretrial testimony from Officers Bellomo and Colon and from defendant himself. The judge concluded that no custodial interrogation occurred requiring Miranda warnings. The judge found that Officer Bellomo's inquiries of defendant------asking about what he was doing there------ were "simple questions" of a "community policing" nature. Finding the scenario here similar to the circumstances in Coburn, supra, the judge found "nothing coercive in the environment in which the questioning occurred." Moreover, the judge found that, at that initial point of the encounter, "defendant was never restrained in any manner," and "[n]othing was said or done to the defendant to suggest that he was not free to leave."

We agree with defendant that the police encounter thereafter escalated to a custodial situation when Officer Bellomo went down the alley to investigate defendant's claim about looking for his cousin while Officer Colon remained at the sidewalk with defendant. But there is no proof that Colon questioned defendant during that interval. Nor did Bellomo interrogate defendant after returning from the alley. The brief questions and statements at issue preceded the custodial phase of the events.

We also concur with the trial judge in rejecting defendant's claim that Officer Bellomo's alleged subjective intent to detain defendant when he first encountered him required the immediate issuance of Miranda warnings. The judge found that Bellomo's "subjective determination was never communicated to the defendant." The officer's unspoken state of mind is inconsequential to the objective analysis of custodial status called for under Miranda. See Stott, supra, 171 N.J. at 367-68; Coburn, supra, 221 N.J. Super. at 595-96.

In sum, we affirm the trial court's denial of the motion to suppress.

III.

Defendant next argues that the prosecutor pursued an improper line of questioning when cross-examining him at trial, in a manner that unconstitutionally faulted him for his post-arrest silence.

Here is the background pertinent to this issue. During his testimony at the pretrial suppression hearing, defendant asserted, among other things, that he felt his "rights were violated" when the police allegedly began searching him before arresting him. He contended that the police went "right into his pockets" without providing him with an explanation. Defendant further contended that Officer Bellomo refused to say why he was being stopped and searched, and that he would have to wait to find out by reading the written police report. The trial judge did not credit defendant's assertions of wrongdoing, and instead adopted the officers' version in denying the motion to suppress.

As we have already noted, defendant elected to testify at the ensuing trial. In his direct examination, defendant did not mention that he thought the police had violated his rights. However, on cross-examination, the prosecutor asked him the following series of questions, and elicited these corresponding answers:

Q: Did you ever call the police department and complain about this?

A: No, I didn't.

Q: You knew it was wrong, though, right?

A: Absolutely.

Q: Someone shouldn't search you before they place you under arrest, right?

A: I thought it was -- I thought to me it was profiling, a little bit of racial profiling because I didn't do anything.

Q: Okay. And because you thought that you did nothing about it, though, right?

A: My mother said I just -

Q: Not telling me what your mother said but I am asking you because you knew it was wrong and you felt that you were wronged here did you do anything about it? Did you call the Elizabeth Police Department to complain?

A: No, I didn't.

Q: Did you call the Union County Prosecutor's Office to complain?

A: No.

Q: Did you call anybody to complain?

A: I did speak to Miss Julie Peterman*fn2 but not about that case.

Defense counsel did not object to these questions or move to strike defendant's answers.

On appeal, defendant argues for the first time that the prosecutor's cross-examination infringed upon his constitutional right to remain silent after being arrested and receiving Miranda warnings. Because no objection was raised at trial, we evaluate that argument under a "plain error" standard of review.

See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). We discern no such plain error here.

The inquiry on this point must begin with a review of Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91, 96 S.Ct. 2240 (1976), where criminal defendants took the stand at trial and claimed that they were innocent and had been framed by a government informant. On their cross-examination, the prosecutor repeatedly asked the defendants why they had not told the police, either at the time of their arrest or thereafter, that they were innocent. The United State Supreme Court held that it was improper in those circumstances for the prosecutor to have called attention to the defendants' post-arrest silence. Id. at 617, 49 L.Ed. 2d at 97, 96 S.Ct. at 2244. The Court noted that because Miranda warnings issued at the time of arrest contain an implicit assurance "that silence will carry no penalty" . . . "'it does not comport with due process to permit the prosecution during the trial to call attention to [the defendants'] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.'" Id. at 618-19, 49 L.Ed. 2d at 98, 96 S.Ct. at 2245 (quoting United States v. Hale, 422 U.S. 171, 182-183, 45 L.Ed. 2d 99, 108, 95 S.Ct. 2133, 2139 (1975) (White J., concurring in the judgment)). The Court rejected the prosecutor's argument that it was permissible to raise defendants' post-arrest silence as a means of impeaching their trial testimony. Id. at 619, 96 S.Ct. at 2245, 49 L.Ed. 2d at 2245.

The Supreme Court reinforced these general principles from Doyle in Anderson v. Charles, 447 U.S. 404, 408, 65 L.Ed. 2d 222, 227, 100 S.Ct. 2180, 2182 (1980), observing that "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances." (Emphasis added) (citations omitted). However, in Fletcher v. Weir, 455 U.S. 603, 71 L.Ed. 2d 490, 102 S.Ct. 1309 (1982), and in Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed. 2d 86, 100 S.Ct. 2124 (1980), the Court clarified that a criminal defendant's testimony may be impeached on the basis of prior silence, "provided that the silence had not been induced by post-arrest Miranda warnings." Splunge v. Parke, 160 F.3d 369, 371 (7th Cir. 1998) (emphasis added), cert. denied, Splunge v. Anderson, 528 U.S. 833, 120 S.Ct. 91, 145 L.Ed. 2d 77 (1999). See also State v. Muhammad, 182 N.J. 551, 569 (2005) (applying the principles of Doyle and its progeny).

Defendant maintains that the prosecutor transgressed these principles by asking him on cross-examination about his failure to speak up after his arrest and to lodge a complaint that his rights had been violated. The State, in response, contends that defendant waived his protection from inquiry on these matters at trial because he had mentioned them in his testimony at the suppression hearing. The State also relies upon our opinions in State v. Elkwisni, 384 N.J. Super. 351, 373 (App. Div. 2006), aff'd, 190 N.J. 169 (2007), and in State v. Jenkins, 299 N.J. Super. 61, 68 (App. Div. 1997), as authority for its impeachment attack.

We reject the State's argument that defendant waived his right to have his post-arrest, post-Miranda silence not used against him at trial. Defendant's perception that he had been illegally detained and searched, and potentially a victim of racial profiling, was not raised by him on direct examination in the suppression hearing. Rather, the subject was broached in the prosecutor's cross-examination. The prosecution opened the door to the subject, not the defense. Defendant's protection from self-incrimination on this particular subject was not waived.

Jenkins, supra, 299 N.J. Super. at 68-69, is factually distinguishable because in that case the defendant opened the door to the prosecutor's inquiry about his post-Miranda silence by affirmatively testifying, in his direct examination at trial, that he had tried to explain to the arresting officers what had occurred, and they supposedly ignored them. Defendant went on to assert in his direct testimony that no police official asked him for his version of the events after his arrest. Ibid. By injecting these matters into his direct examination at trial, Jenkins "necessarily raised the issue of his post-arrest silence," so that the prohibition recognized in Doyle was not violated. Id. at 68.

Elkwisni, supra, 384 N.J. Super. at 351, is also not helpful to the State here. In Elkwisni, the defendant initially declined, after being arrested for robbery with another suspect, Samha, and receiving Miranda warnings, to speak with the police about his involvement in the crime. However, the defendant claimed that after the arresting officers placed Samha in a different police car, he told the officers that he had been coerced by Samha at gunpoint to assist him, and that Samha had stuffed money inside his pockets. The defendant provided this explanation in his direct examination at trial. On cross-examination, the prosecutor asked the defendant about his post-arrest assertions, and also his failure to have told the police immediately of his claim of coercion before he was separated from Samha.

Affirming a panel of this court, the Supreme Court held in Elkwisni, supra, 190 N.J. 169, that once the defendant had testified on direct examination "concerning statements he made to the police after his arrest about the coercion and intimidation he experienced in the store, the State may fairly cross-examine [the] defendant concerning those statements." Id. at 179. However, the Court expressed reservations about "the prosecutor's cross-examination of [the] defendant with regard to the silence at the time the police arrived and placed him under arrest." Id. at 180. As to that aspect of the cross-examination, the Court concluded, as it did in Muhammad, supra, 182 N.J. at 573-74, that "in the absence of testimony by the defendant that he told the police what happened immediately upon his arrest, it was improper for the State to comment on his silence at the time they placed him under arrest." Elkwisni, supra, 190 N.J. at 181. The Court held, however, that the error was harmless, given the brevity of the questioning. Ibid.

Here, the State's cross-examination of defendant about his post-arrest silence was not bounded by considerations of time. The prosecutor's questions, as they were broadly phrased, related not only to defendant's failure to complain at or around the time of his arrest that he was being treated wrongfully on the day of his arrest, but also his failure to make such a complaint until the time of his trial. Although inquiry about defendant's continued silence up through the time of trial may not raise the same immediate concerns as in Doyle, Muhammad, and Elkwisni, we cannot endorse the questions here in their entirety, given their unbounded temporal nature.

In any event, even if the State's cross examination was arguably improper in part, we perceive no error here of a sufficient magnitude to require reversal. No objection was made by defendant's trial attorney to the questioning. Defendant's credibility was separately impeached to a considerable degree by his prior criminal record, as well as by the lack of any corroboration that his cousin actually lived at the premises. The prosecutor made no mention of the elicited testimony in his summation. The incremental effect of the cross-examination about defendant's post-arrest silence could not have been substantial. In sum, we detect no "plain error clearly capable of producing an unjust result," Macon, supra, 57 N.J. at 336, and thus reject defendant's demand for a new trial on this issue.

IV.

Defendant contends that the judge committed reversible error in charging the jury that they could make an adverse inference about his failure to produce his cousin Ashley Stewart to corroborate why he was at 629 Fullerton Street, and in permitting the prosecutor to comment on the charge during his summation. We disagree.

Generally, the "failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." State v. Clawans, 38 N.J. 162, 170-171 (1962)(citing 2 Wigmore, Evidence, § 285 (3d ed. 1940)). Such an adverse inference can always be rebutted "by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure." Ibid.

To allow this adverse inference from a party's failure to produce a witness, there must be a reasonable assumption that the witness who was not produced was actually within the power of that party to produce. Ibid. Moreover, it must also be shown to be reasonable that the presumed testimony would have been "superior to that already utilized in respect to the fact to be proved." Ibid. (citations omitted).

"[B]efore authorizing an adverse inference against a defendant in a criminal trial, a court must evaluate the importance of the expected testimony in light of the State's burden of persuasion and any defense asserted." State v. Velasquez, 391 N.J. Super. 291, 297 (App. Div. 2007). The inference is more likely available in criminal cases where the defendant has "injected an issue such as an alibi or asserted a separate defense . . . [.]" Ibid. A so-called "Clawans" charge to the jury requires the court to be "satisfied that a sufficient foundation for drawing such an inference has been laid in accordance with the above-mentioned rules." Wild v. Roman, 91 N.J. Super. 410, 415 (1966). Where a court determines that a Clawans instruction is appropriate, i.e., that the jury may draw the adverse inference, the court must also instruct the jury about the limited weight of that inference. Ibid.

Here, the trial judge reasonably found that a Clawans charge was appropriate as to defendant's failure to produce his cousin, Ashley Stewart, as a witness. There was a natural basis to infer that defendant would have had the ability to secure the cooperation and assistance of his cousin, with whom he had a seemingly close relationship. For example, defendant testified that his cousin had requested him to purchase diapers for her infant child on the day he was found outside of her alleged residence. Conversely, the State apparently did not have particular access to Ashley Stewart other than through a formal subpoena process.

Substantively, Stewart would have been a key source of corroboration of defendant's claim that he had come to the premises to visit her and assist her with shopping that she needed to have done. Indeed, there is a strong argument that her corroboration would be superior to any other evidence in support of defendant's account of why he was standing outside of the premises. See Clawans, supra, 38 N.J. at 171.

Additionally, the judge provided the jury with an appropriate limiting instruction about the use of an adverse inference, which tracked the Model Jury Charges. We also perceive no harm in the prosecutor's brief comment in summation previewing that the court was going to issue an adverse inference charge.

Based on the foregoing reasons, the Clawans charge was proper and defendant's argument fails.

V.

Defendant's final arguments concerning his sentence require little discussion. The trial judge had ample grounds to impose a harsher sentence than the one called for in the plea agreement, in light of defendant's failure to honor his commitment to appear at sentencing. See Subin, supra, 222 N.J. Super. at 227.

Defendant contends that he had a medical justification for not appearing in court on his scheduled day for sentencing, claiming that he recently had an abscess surgically removed from his arm at Overlook Hospital. However, the documentation that he presented made no mention of surgery, and only indicated that defendant had been seen for an abscess or a boil some eleven days before his court date. The trial judge rejected defendant's medical justification as unpersuasive, and we sustain the judge's determination.

In Subin, we held that a plea agreement may contain a provision that triggers an increase in sentence if the defendant fails to appear for a sentencing hearing, so long as the increased sentence is not imposed for the sole reason of the non-appearance, i.e., it is only one of several factors to be considered. Id. at 238-39. A convicted defendant has an obligation to appear for sentencing. Id. at 240. A blatant disregard of this obligation, where no valid excuse exists, "demonstrates the defendant's disrespect for the law and gives rise to a reasonable inference that he is likely to commit another offense." Ibid. Therefore, a sentencing judge may properly consider defendant's non-appearance along with other aggravating and mitigating factors within the sentencing guidelines in determining a just sentence. Ibid.

Given these principles, the trial judge was justified in issuing the aggregate sentence that he imposed, despite the fact that it substantially exceeded the six-year presumptive maximum contemplated by the plea agreement. Although the judge did not explicitly discuss the pertinent statutory factors in the sentencing transcript, the judgment of conviction reflects the court's appropriate reliance on aggravating factors three, six and nine, and that no mitigating factors were present. See N.J.S.A. 2C:44-1(a)(3), (6) and (9). We need not comment much about this issue, except to note that defendant was convicted of other CDS offenses between 2000 and 2006, and that he was arrested on another CDS charge in the interval between his plea date and his ultimate sentencing. Obviously, defendant requires a significant deterrent from future criminal behavior, particularly CDS offenses.

The sentence does not shock the judicial conscience as unduly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984). Nor was the trial judge required to give defendant an opportunity, after he violated the Subin conditions, to withdraw his guilty pleas. The judge had gone to great lengths at the plea hearing to assure that defendant understood the ramifications of not appearing in court at his sentencing. No further accommodation was necessary.

Affirmed.


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