November 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDGAR L. PARADA, A/K/A EDGAR ESTRADA, EDGAR LEONEL PARADA, EDGAR PARADA, EDGAR PARADO, EDGAR RARAPA, EDITH RODRIQUEZ "ELGADO", DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2010
Before Judges Parrillo and Espinosa.
Defendant appeals from his sentence and convictions for first-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(1), and second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:29-3(b)(4). We affirm.
On the evening of November 27, 2006, Sergeant Kevin O'Brien of the Plainfield Police Department was conducting surveillance at a residence on Greenbrook Road in Greenbrook when he observed defendant arrive at the residence in a white Lincoln Navigator. Defendant and a male passenger walked to a side door of the house, where Adan Pena-Gonzalez let them in.
On the following day, Sergeant O'Brien observed Pena-Gonzalez leave the Greenbrook Road residence at approximately 1:30 p.m. and get into a taxi. Sergeant O'Brien followed the cab to an intersection in Plainfield, where Pena-Gonzalez exited the taxi and made several calls on his cell-phone. A short time later, defendant arrived in his Navigator. Pena-Gonzalez got into the Navigator. The two circled the block for less than five minutes and then defendant dropped Pena-Gonzalez off in the same spot where he had picked him up. Pena-Gonzalez returned to the Greenbrook Road residence in another taxi.
Later that day, at 6:00 p.m., Sergeant O'Brien saw defendant drive a white van to the Greenbrook Road residence. Marvin Lopez-Aval got out of the passenger side of the van and approached the side door of the house carrying a white shopping bag. Pena-Gonzalez met Lopez-Aval at the side door and took the bag from him. Lopez-Aval returned to the van and left the area with defendant.
At about 6:40 p.m., Pena-Gonzalez left the house, walked to a gray Acura in the driveway, and motioned with his hand. As he did, the occupant of the Acura opened the trunk. Pena-Gonzalez placed what looked like the same shopping bag he had received from Lopez-Aval into the trunk. Pena-Gonzalez then entered the passenger side and the car left the area.
A few minutes later, marked patrol units stopped the Acura. Sergeant O'Brien arrived and identified the driver as Denton Black and the passenger as Pena-Gonzalez. Black consented to a search of the vehicle. Sergeant O'Brien searched the trunk, where he found the same bag he had seen earlier and detected a strong smell of cocaine emanating from the bag. He opened the bag and found cocaine in a sandwich bag that was inside another plastic bag. Pena-Gonzalez was arrested.
Pena-Gonzalez told the police that he had arranged with defendant to have 400 grams of cocaine delivered and would pay defendant after it was sold. A lab report confirmed that the bag seized from the gray Acura contained three hundred ninety-one grams of cocaine.
The police went to defendant's home and asked for consent to search his home, storage facility and vehicles. He consented to all searches. The searches turned up no drugs, drug paraphernalia, suspicious amounts of currency or any other objects that would suggest drug trafficking.
The parties entered into a stipulation at trial as to the following: that at the time of the offense, Lopez-Aval was a juvenile and defendant was an adult, and that the cocaine had a street value of $12,000.
Defendant testified at trial. He stated that Lopez-Aval worked for his cleaning company, J&M Cleaning. He also stated that Pena-Gonzalez contacted him by phone looking for work and that he eventually hired him for some snow removal. Defendant denied any knowledge as to the cocaine seized. He explained that he went to Pena-Gonzalez's house on November 27 to get a copy of insurance papers for Pena-Gonzalez's truck for the snow removal and that he put the papers in a bag so that they would be protected from the dirt in his van.
Defendant was convicted of both charges against him, first-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(1) (count one), and second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:29-3(b)(4) (count two). After trial, defendant moved for a new trial based on newly discovered evidence, which consisted of a letter in English and Spanish purportedly written by Lopez-Aval:
My name is Marvin Lopez[-Aval,] I was the one accused along with Mr. Parada. I would like to express my feelings. Mr. Parada is a good person. He was my boss and it hurts me to see how he's being [accused] of something that wasn't even true. I saw that there were papers in the bag when I handed it over [to Pena-Gonzalez]. There was only one bag (white) not four as I saw in trial. I wanted to testify but my lawyer said that it would hurt my case in some way.... I beg you, if there's a way you can help Mr. Parada that you do so. I know God will bless you and if there is anything I can do to help then I will be more than happy too [sic].
The trial court denied defendant's motion for a new trial, and sentenced him to a term of fifteen years with a six year period of parole ineligibility on count one, a concurrent term of eight years with a five year period of parole ineligibility on count two, and appropriate fines and penalties.
In this appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE
DEFENDANT'S CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE AND THEREFORE DENIED DEFENDANT DUE PROCESS AS REQUIRED UNDER THE FEDERAL CONSTITUTION AND NEW JERSEY STATE LAW
DUE TO THE FAILURE OF DEFENSE COUNSEL TO MAKE A MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND THE COURT IMPROPERLY BALANCED AGGRAVATING AND MITIGATING FACTORS AS REQUIRED BY LAW
After considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
To warrant a new trial pursuant to R. 3:20-1 based on new evidence, defendant must show that new evidence is:
(1) material to the issue and not merely cumulative or impeaching or contradictory;
(2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted. [State v. Carter, 85 N.J. 300, 314 (1981).]
See also State v. Feaster, 184 N.J. 235, 276-77 (2005); State v. Ways, 180 N.J. 171, 187 (2004); State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008). Such evidence must be reviewed with "a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Ways, supra, 180 N.J. at 188. "[P]ost conviction statements of persons who did not testify at trial... are 'inherently suspect.'" Allen, supra, 398 N.J. Super. at 258 (quoting State v. Robinson, 253 N.J. Super. 346, 366 (App. Div. 1992), certif. denied, 130 N.J. 6 (1992)). A "mere exculpatory statement of a co-defendant cannot by itself give rise to a new trial if that statement is clearly false or merely designed to give an accomplice a second chance for acquittal." Robinson, supra, 253 N.J. Super. at 366-67.
In this case, the information contained in Lopez-Aval's letter was not "new;" it merely duplicated defendant's explanation of the events observed by the police officers. See e.g., State v. Coburn, 221 N.J. Super. 586, 600-01 (App. Div. 1987) (court rejected defendant's contention that a toxicology report supported his defense that the shooting was an accident that occurred when he attempted to grab the gun from his girlfriend's hand, finding such evidence cumulative and unlikely to have altered the jury's verdict), certif. denied, 110 N.J. 300 (1988). See also State v. Bey, 161 N.J. 233 (1999). As a result, the trial court did not abuse its discretion in denying defendant's motion.
Defendant's argument that the verdict is against the weight of the evidence is procedurally barred since his counsel did not make a motion for a new trial based upon the insufficiency of the evidence before the trial court. R. 2:10-1. However, the evidence here included the observations of a police officer conducting surveillance who was able to identify defendant and describe his movements as they related to the Greenbrook Road residence and the seizure of cocaine. In addition, the evidence included the testimony of an insider, Pena-Gonzalez, who testified that defendant was the owner of the cocaine and had given him the drugs on consignment for him to sell. There was also a stipulation that included an acknowledgment that Lopez-Aval was a juvenile. Taking the evidence in its entirety and giving the State the benefit of all favorable inferences that could be reasonably drawn, the evidence was sufficient to permit a jury to find defendant guilty beyond a reasonable doubt.
Therefore, there were insufficient grounds to grant a motion for a judgment of acquittal, State v. Reyes, 50 N.J. 454, 458-59 (1967), if one had been made. Because "there is [no] reasonable probability that... the result of the proceeding would have been different[,]" if the motion had been made, Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), trial counsel's failure to make such a motion also does not constitute ineffective assistance of counsel. See also State v. Fritz, 105 N.J. 42, 60-61 (1987). Finally, we discern no abuse of discretion warranting our intervention regarding the trial court's determination of aggravating factors and the non-existence of mitigating factors and the sentence imposed.
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