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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
Defendant Alexis Martinez, along with co-defendants Jose F. Rodriguez, 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), -5b(1) (count two); first-degree distribution of CDS, N.J.S.A. 2C:35-5a(1), -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, 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-one-half year term of imprisonment with a thirty-month period of parole ineligibility.
Defendant and co-defendant Rodriguez were tried together before a jury. Defendant was found guilty on all counts and sentenced, as a persistent offender, to a four-year period of incarceration on count one, to run concurrently to the sentence imposed on counts two, three and four; concurrent twenty-year terms of imprisonment with a mandatory one-third parole ineligibility period on counts two and three, and a seven-year period of incarceration on count four, to run concurrently with the sentence imposed on counts one, two and three. Applicable fines and penalties were imposed.
Defendant presents the following points on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE DURING THE STATE'S PRESENTATION TO THE GRAND JURY.
IT WAS ERROR TO HAVE ADMITTED THE AUDIOTAPE INTO EVIDENCE BECAUSE IT WAS NOT PROPERLY AUTHENTICATED.
THE STATEMENTS OF CO-CONSPIRATORS WERE ADMITTED HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE WITHOUT INDEPENDENT PROOF OF A CONSPIRACY INVOLVING APPELLANT [ ].
THE ADMISSION INTO EVIDENCE OF THE PLEA ALLOCUTION TRANSCRIPT OF SALVADOR AUGUSTINE VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE TRIAL JUDGE ERRED IN NOT ALLOWING A CLAWANS CHARGE AGAINST THE STATE REGARDING THE ABSENCE OF MESSRS. FIORINO AND AUGUSTINE FROM TRIAL.
IT WAS ERROR TO DENY DEFENDANT'S TWO MOTIONS FOR A JUDGMENT OF ACQUITTAL AND A NEW TRIAL.
IT WAS ERROR FOR THE TRIAL JUDGE NOT TO DISMISS THE INDICTMENT IN VIEW OF THE STATE'S SPOLIATION OF A POST-ARREST STATEMENT BY APPELLANT.
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT[S] A REVERSAL ...