On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Tried to a jury, defendant was convicted of fourth-degree possession of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-10(a)(3), and first-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a). He was sentenced to a term of fourteen years in prison and assessed the appropriate fines and penalties.
On appeal, defendant raises numerous claims of trial error; he also argues that his sentence is excessive. For the reasons discussed below, we affirm.
The evidence adduced at trial may be summarized as follows. On March 4, 2003, Detective Warren Hodges, of the Port Authority Police Department assigned to the Drug Enforcement Administration, received information "that there was a shipment at a cargo area in [Newark International Airport] that was similar to a shipment that was investigated earlier, that possibly contained a controlled dangerous substance." By "similar[,]" he meant "the size of the boxes, the packaging, the sender and receiver were the same, and the fact that it had 'hold for pickup' and no address or phone number to where it was going to go." En route to the cargo area, Hodges notified other officers and requested a "narcotic[s] canine dog [sic]."
Upon arrival at the cargo area, Hodges examined the air bill which was marked "prepaid as arranged[,]" and identified "Protech Garment Incorporated" as the recipient, which was "familiar" to Hodges "because it was on an earlier shipment." The contents of the package were described as "[g]arments[,]" and no value was declared on the air bill. Hodges testified that when he lifted the boxes they "felt solid[,]" which he considered as "similar to the way narcotics is usually packaged and shipped."
Hodges "set up surveillance" along with Special Agent Mark Russin in the cargo area; two other officers were stationed outside the cargo area. Through cell phone communication with the officers outside, Hodges learned that a white rental van entered the lot of the cargo area. The driver "circled the parking lot several times[,]" and then parked and entered the building. This individual was later identified as defendant.
Hodges observed defendant "walk up to the Guest Control desk and speak to the woman behind the desk." The officer was then advised that defendant "was there to pick up the shipment that [the police] were watching." Hodges described observing defendant pick up the shipment:
The boxes were on three different pallets and the pallets were brought over to his vehicle, and the first two pallets were put inside the van, and the next pallet was unable to fit, so [defendant] had to physically move the boxes and get the last seven boxes into the van.
Hodges observed defendant "to be unusually nervous. . . . He was unable to stand still."
Once all the boxes were loaded in the van, Hodges approached defendant, identified himself and displayed his badge. The narcotics canine arrived at this point as well. Hodges stated:
After identifying myself, I asked [defendant] if I could speak with him, and he stated that I could. And I then asked him if the shipment that was in his vehicle, was that his, and he stated that it was. I asked him if he knew what was in the boxes, and he said he did. I asked him if I could search the boxes and take a look inside, and he said yes, I could.
Hodges also asked defendant if the narcotics canine "could go inside of the van and examine the boxes also." Defendant consented to that as well. The canine examined the boxes and gave a "positive indication" that narcotics were present. Hodges thereupon opened one of the boxes and retrieved a "cellophane bundle of alleged marijuana." Hodges testified that "each one of the boxes that were later seized" contained the same items.
Hodges then placed defendant under arrest, advised him of his Miranda*fn1 rights "verbally" and transported him to the "Port Authority police detective office in Newark Airport."
Hodges testified that he advised defendant of his rights by reading to him from a "Miranda warning card used by the Port Police[,]" and that Hodges wrote out the answers defendant gave him; defendant then signed the card. Hodges asked defendant if he would "write down actually what happened in his own words and have it part of the record, and he stated that he would."
Defendant's written statement was moved into evidence and read to the jury; it contained the following:
I got laid off, and it got harder . . . to pay my bills, my rent, light, heat. I went [to] look for work, but without luck. . . .
I was offered a job to pick up . . . "garments." I was at Newark airport . . . on several occasions. I pick up. And to my knowledge, it was clothing. However, over a period of time, more boxes came, and I figure it was clothing no more. But I needed the money. They were just [a] few more, after I realized. I didn't know what was the content, however, I know something wasn't right. I am sorry for what I did, but please understand where I are [sic] coming from. I have a lot of people depending on me.
Detective Reginald Leon Holloway of the Essex County Sheriff's Department's Bureau of Narcotics, testified as an expert in the field of narcotics trafficking and distribution. Asked to estimate the "street value" of the 1024 pounds of marijuana seized, Holloway opined that the value was "in . . . excess of millions of dollars." Holloway was presented with a hypothetical based on Hodges' testimony and asked whether he had "an opinion . . . as to whether [defendant] is engaged in illegal narcotics trafficking[.]" Holloway responded:
It is my opinion as to your hypothetical that the individual was taking part in an illegal distribution networking scheme, whereas the man, the subject, him or herself, the overall ring leader [sic] or part of the ring, or the individual is acting in the capacity as I indicated, a mule . . . . Just getting paid to make said pickup, to make a delivery to another location, and the subject's job is completed . . . .
Holloway defined a "mule" as "an individual or individuals that their role in the distribution of narcotics are [sic] they are the pickup person. They are the transporter, an individual that . . . they are getting paid to transport narcotics from one location to another."
Defendant was tried in absentia.*fn2 He failed to appear at any time during trial, and his attorney did not "know where he [was]." Immediately prior to the jury charge, defense counsel asked the judge to instruct the jury regarding defendant's election not to testify "in addition to the defendant's election ...