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State v. Hernandez

March 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARCOS HERNANDEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-11-01042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2010

Before Judges Rodríguez, Reisner and Yannotti.

Defendant Marcos Hernandez was tried before a jury, which found him guilty of distribution of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(b)(2); and distribution of CDS, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(a)(1). The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant to an aggregate fifteen years of incarceration, with a seven-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered on November 30, 2007. For the reasons that follow, we affirm defendant's conviction and sentence.

I.

We begin with a summary of the relevant facts. Drug Enforcement Administration (DEA) agent James Kerrigan (Kerrigan) arrested Faustino Fuentes (Fuentes) on certain drug charges and Fuentes agreed to cooperate with the Cumberland County Prosecutor's Office (CCPO) in its investigation of the sale of illegal drugs. Fuentes informed Kerrigan that he could provide information about defendant, who he said was selling large quantities of cocaine in the Cumberland County area.

With the assistance of persons in the CCPO, Fuentes set up a controlled purchase of CDS. On January 14, 2004, Fuentes met with defendant. He was wearing a Kell transmitter, which allowed Kerrigan to record Fuentes' conversations. A detective gave Fuentes $680 to purchase CDS. Fuentes drove to a pre-arranged location in the City of Vineland in his silver pick-up truck.

A red or maroon colored van arrived and parked behind Fuentes' truck. Defendant was driving the van and he had one passenger. Kerrigan and other law enforcement officers maintained surveillance of the scene. Defendant exited the van and Fuentes got out of his truck. They met between the two vehicles and spoke briefly.

Defendant entered the driver's side of the van and Fuentes entered the passenger side. After about five minutes, Fuentes exited the van, went back to his vehicle and left the scene. Defendant also departed. Kerrigan met Fuentes in a parking lot and recovered three bags containing twenty one grams of a substance, later determined to be cocaine. Fuentes was not in possession of any money.

At the trial, Kerrigan played the tape recording of the conversations in the van. Kerrigan identified Fuentes' voice as one of the voices heard on the recording. At one point on the recording, a voice stated "[t]his way doesn't work for you? Because, really, I am giving it to you pure and I am going to give it to you - I am also giving it to you for ten bucks." Kerrigan testified that "pure" is a slang term for cocaine.

On April 14, 2004, Fuentes met defendant for another pre-arranged controlled purchase of CDS. He was again wearing a Kell transmitter. Kerrigan provided Fuentes with $2000 in cash. Fuentes drove to a residence in Vineland. Kerrigan and other law enforcement officers again maintained surveillance of the scene. Fuentes exited his vehicle. Defendant drove up, got out of his car and greeted Fuentes. They went into the garage, where they remained for a few minutes. Fuentes left the garage, got back into his truck and drove away.

Fuentes thereafter met Kerrigan at a parking lot and gave him a package of a substance, which was later determined to be cocaine. The recording of the conversations in the garage was played at the trial. Kerrigan testified that Fuentes' voice was one of the voices heard on the recording. Kerrigan also testified that the other voice on the recording was "very distinctive." Kerrigan said that the same voice had been recorded during the meeting between defendant and Fuentes on January 14, 2004.

The State called Fuentes as a witness but he refused to testify. Outside the presence of the jury, the court discussed the matter with counsel. Fuentes then was called to the stand and the following colloquy between Fuentes and the prosecutor ensued:

Q: Before we broke and had the jury go out, you had turned to the judge and you had said to him - well, tell us what you said to him.

A: Well, I said to him that I spoke to you and to the other prosecutor and to the detective many times that [I'm] not going to testify. And, you know, I was not going to testify. You still subpoenaed me without . . . letters to tell my boss that I was going to come to Court. I'm this close to losing my job, and you still subpoenaed me here for four days, don't care that I lose my job or not, knowing that [I'm] not going to testify.

Q: Okay. So, to that end, - and I think you're making it perfectly clear, regardless of what I show you, what I ask you, if I played tapes for you, and tried to ask you questions about any of this material that we have, your answer would be the same, and you refuse to testify about it.

A: Yes, sir.

The court then asked Fuentes to explain his reasons for refusing to testify. Fuentes stated:

. . . the DEA agent told me that the deal was off, that [they're] not satisfied with my work. Nobody was - he made it seem there was nobody [who] was happy with me. And, he don't [sic] need my help no [sic] more. I believe the last time I was here. I got ten years out of that deal. I went. I came on, and I speak. I got four months left. I'm working, doing what I'm supposed to do. And now, they send me back. So, for me, it was

- I want all that behind. I just want to work and do what I'm supposed to do. And, I told him many times that I want this all behind, and the deal was off. They told me the deal was off. And, I still got my ten years. I went to jail. I came back. And, I'm doing what I'm supposed to do. So, I just ask the Court please let me be and . . . I'm trying to do good.

II.

On this appeal, defendant raises the following issues for ...


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