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State v. Rufus

June 25, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0990.

Per curiam.


Submitted May 10, 2010

Before Judges Lisa and Alvarez.

Defendant Kyle Rufus appeals his conviction by a jury for certain drug distribution offenses. For the reasons that follow, we affirm.

The following facts were adduced during the trial. On October 23, 2006, Officer Noberto Sanchez of the Newark Police Department was conducting street surveillance, with the aid of binoculars, from an unmarked police car when he observed defendant reach down and remove an object from his sock. Defendant then exchanged the object for currency with co-defendant Ben Allen. As Allen walked away, the take-down unit was alerted and he was arrested. A glass vial of cocaine with a red top was found on Allen's person.

Defendant was simultaneously arrested and police seized thirteen additional red-topped vials of cocaine from inside defendant's sock and $53 in cash from defendant's pocket. The $53 consisted of a twenty-dollar bill, two ten-dollar bills, a five-dollar bill, and eight one-dollar bills. Although Sanchez had not seen the dollar amounts of the paper currency Allen exchanged for the object, he saw that the items were indeed "paper currency."

Detective Michael Alexandre, a second surveillance officer, also testified. Like Sanchez, Alexandre said there were several operating street lights illuminating the area where the transaction occurred, including a light stanchion located fifteen to twenty feet in front of the undercover vehicle.

When Detective Macchia*fn1 of the Newark Police Department testified, he described the field testing of the cocaine confiscated from defendant, Allen, and a second drug dealer, Quincy Lewis. Additionally, the State introduced into evidence laboratory reports substantiating the subsequent testing of the contents of the remaining vials found in defendant's sock, which also proved to be cocaine.

Defendant was found guilty of the following: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count seven); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) (count eight); and third-degree cocaine distribution, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (count ten). The school zone charges contained in the ninth count and eleventh count were dismissed.

The judge merged the drug possession offense, count seven, with count eight, drug possession with intent to distribute, for purposes of sentencing. On count eight, as well as count ten, the charge of drug distribution, defendant was sentenced to extended concurrent terms of nine years with four and one-half years of parole ineligibility. Defendant was sentenced to extended terms because he was a prior drug distributor, pursuant to N.J.S.A. 2C:43-6(f). Fees and penalties on the various offenses were also imposed.

Defendant's trial was conducted in absentia. We have only been supplied with copies of the transcripts of the trial and the sentence hearing. References to defendant's absence were scant. The court gave the appropriate instruction relevant to defendant's absence. See Model Jury Charge (Criminal), "Defendant's Absence From Trial" (2004). It bears noting that defendant's trial ended on April 17, 2008, and he was not sentenced until November 12, 2008, after he had been arrested on the warrant issued for his failure to appear at trial.

Defendant first contends that it was error to conduct the trial in his absence. On appeal, it is the responsibility of the moving party to provide us with sufficient information "to make unnecessary an independent examination of the record by the court . . . even though the court inevitably undertakes to review the record for itself." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (citing R. 2:6-9). It is the appellant's burden to provide us with the facts and the record references in support thereof, as well as the legal argument which flows from the facts, in order for us to be able to independently assess the merits of the arguments being made.

Ibid. We do not even know if any transcripts of proceedings prior to the trial and sentence were reviewed before defendant formulated his legal argument. In this case, we have not been provided ...

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