On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-05-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Carchman, Parrillo and Lihotz.
Defendant Jose F. Rodriguez, along with co-defendants Alexis Martinez, Salvador Augustine, and Johanny Guzman were charged under Morris County Indictment No. 06-05-0688 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5a(1), b(1) (count two); first-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count three); and second-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 (count four).
On October 20, 2006, co-defendant Salvador Augustine entered a guilty plea to first-degree distribution of CDS. Pursuant to the plea agreement, Augustine was to testify truthfully against his co-defendants in exchange for a recommendation that he be sentenced as a second-degree offender, N.J.S.A. 2C:44-1f(2), and receive a seven-and-a-half year term of imprisonment with a thirty-month period of parole ineligibility.
Defendant was tried with co-defendant Martinez. Following a jury trial, defendant was found guilty on all counts. The court sentenced defendant to a four-year flat term of incarceration on count one, to run concurrently to the sentence imposed on counts two, three and four; twelve years with a six-year period of parole ineligibility on counts two and three, to run concurrently; and a seven-year flat term on count four, to run concurrently to the sentence imposed on counts one, two, and three. Applicable fines and penalties were imposed.
Appellant presents the following points on appeal:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
THE DEFENDANT WAS INDUCED TO COMMIT THIS OFFENSE BY A POLICE OFFICER WHICH CREATED A SUBSTANTIAL RISK THAT THE OFFENSE WOULD BE COMMITTED BY THE DEFENDANT RATHER THAN ONE WHO WAS READY TO COMMIT IT; THE DEFENDANT'S CONDUCT WAS A DIRECT RESULT THEREOF. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE RESULTS OF THE LAB TESTS WITHOUT EVIDENCE OF THE CHAIN OF CUSTODY.
IT WAS ERROR ON THE PART OF THE TRIAL COURT IN NOT GIVING THE JURY A CLAWANS CHARGE.
THERE WAS A DISCOVERY VIOLATION RELATING TO THE TESTIMONY THAT THE DEFENDANT INDICATED TO THE UNDERCOVER OFFICER THAT THE CDS WAS IN THE PACKAGE HE WAS HOLDING; THE TESTIMONY SHOULD NOT HAVE BEEN PERMITTED.*fn1
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18 AND MOTION FOR A NEW TRIAL PURSUANT TO RULE 3:20 AS THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF HIS SENTENCE.
After consideration of these arguments, review of the record, and applicable law, we affirm.
On April 1, 2005, the Morris County Prosecutor's Office conducted an undercover narcotics investigation. Detective Earl Harrison Dillard, a detective working in the Special Enforcement Unit, met with a cooperating witness, Gregory Fiorino, who agreed to assist the police with a narcotics investigation. Fiorino informed Dillard he had previously purchased cocaine from an individual, identified as "Alex," who was in the business of distributing large quantities of cocaine. Fiorino believed he could arrange to introduce Dillard to Alex for the purchase of a kilo of cocaine. Fiorino called Alex from his cell phone. Dillard recorded the conversation. The deal was arranged as follows: Dillard and Fiorino would purchase and split a kilo of cocaine, with Dillard paying $12,000 for his half. The transaction was set to take place in the parking lot of T.G.I. Friday's restaurant in Roxbury. Alex would be accompanied by "Sal" and "Van, or Vanilla."
Dillard held a pre-operational briefing with approximately twenty officers and detectives. He laid out the operational plan and informed each officer of his responsibility. During the course of the meeting, Dillard provided electronic equipment to assist the team and created a "take down" signal. It was established that Fiorino would introduce Dillard, who would engage the parties in drug-related conversation and purchase the cocaine. The $12,000 was placed in a secure location in the event Alex asked to see the money. However, the transaction was not to be completed: Dillard planned to negotiate the transaction, ensure the parties had the drugs, then give the take down signal, and call in the assisting officers.
Around 8:30 p.m., Fiorino placed a second call to determine Alex's location. Alex revealed he was coming over the George Washington Bridge. Dillard did not record the call. Shortly thereafter, Dillard and his team left to go to T.G.I. Friday's.
Dillard instructed Fiorino to place another call to Alex at approximately 9:30 p.m. Around 10:00 p.m., Fiorino received a call from Alex stating he had exited Route 80 and was looking for T.G.I. Friday's. Fifteen minutes later, Alex called Fiorino stating he had arrived.
As Dillard instructed, Fiorino greeted Alex and his associates, then returned to Dillard and the two walked toward Alex's car, a Mitsubishi Montero. Five individuals were inside the car. Martinez was sitting in the driver's seat, defendant in the front passenger seat, and Augustine sat in the rear passenger seat with two women.
Fiorino introduced Dillard to the individuals, and they engaged in casual conversation. Dillard asked about the cocaine, and Augustine reached between his legs and retrieved a black plastic bag, which he then handed to defendant. The contents of the bag were not visible, so Dillard squeezed the bag to ensure the object was consistent with a powdery substance and about the size of a kilo. Once Dillard was confident the drugs were in the bag, he dropped the bag onto defendant's lap, stepped back from the car, and pretended to make a call to get the money.
After a few minutes, Martinez asked Fiorino if he would take the bag. Dillard testified, "[i]t seemed to me that [Martinez] wanted to get . . . the cocaine out of his vehicle." At that point, Dillard gave the take down signal. The arrest team came in and took Fiorino, along with the occupants of the Mitsubishi, into custody. To maintain his cover, Dillard was also "arrested."
While Dillard was being led away by Sergeant Mike Rogers, he told Rogers the drugs were inside the Mitsubishi in a black plastic bag. Rogers went to the car, recovered the bag and examined its contents. He then took the black bag to special enforcement headquarters and examined its contents a second time. Rogers observed the black plastic bag contained two separate plastic bags that held the cocaine. Based upon the appearance, smell of the white powdery substance, and a chemical field test, Rogers confirmed the bag, in fact, contained cocaine.
Rogers submitted the substance to the New Jersey State Police for forensic examination. At trial, Lowell Mark, a forensic chemist employed by the New Jersey State Police, was qualified as an expert in forensic chemistry and related that his testing revealed the ...