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State of New Jersey v. Jose A. Kovacs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 16, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE A. KOVACS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-08-0624.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2011 - Decided Before Judges R. B. Coleman and J. N. Harris.

Defendant Jose Kovacs appeals from his conviction and sentence for a single count of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). We affirm.

During the course of a plain clothes surveillance assignment relating to a juvenile who was wanted on an arrest warrant, Franklin Township Detective Sergeant Darrin Russo was stationed to watch as Kovacs and the juvenile approached a parked Acura motor vehicle. Detective Sergeant Russo continued to observe Kovacs as he scanned the neighborhood, opened the trunk, and placed a white and green cigarette box in that compartment. When defendant and the juvenile drove away, their vehicle was pulled over and the juvenile was placed under arrest based upon the arrest warrant. After Kovacs refused to permit the police to search the trunk of his vehicle, it was impounded and towed to a garage under the control of the police. Defendant was not placed under arrest at that time and he was allowed to leave the scene.

At the garage, a trained narcotics canine was brought to the Acura. Based upon the dog's reactions, which indicated contraband was located inside, an application for a search warrant was prepared, seeking permission for the police to enter the vehicle and conduct a search. After the warrant was obtained and the car searched, approximately two grams of cocaine was discovered inside the cigarette box that Detective Sergeant Russo had observed Kovacs place inside the trunk.

Kovacs was arrested several days later, and ultimately indicted by a Somerset County grand jury for possession of the cocaine.

The matter was tried before Judge Robert B. Reed and a jury. After the jury convicted Kovacs, and upon the State's motion, Judge Reed imposed an extended term sentence of five years imprisonment with two years and six months of parole ineligibility. This appeal followed.

Kovacs presents the following two arguments for our consideration:

POINT I: THE TRIAL JUDGE ERRED IN PERMITTING A POLICE OFFICER TO OFFER EXPERT TESTIMONY WITHOUT FIRST BEING PROPERLY QUALIFIED AS AN EXPERT IN DRUG DISTRIBUTION. POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We are satisfied that Kovacs's arguments are sufficiently without merit that they do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Detective Sergeant Russo, a twenty-four-year veteran of the Franklin Township Police Department, testified about his suspicions concerning the cigarette box as follows:

Q. Based on your training and experience, observing the conduct by Mr. Kovacs, did that cause you to have some suspicions?

A. His actions were definitely suspicious to me.

Q. Why?

A. Scanning the area, the cigarette box, and placing it in the trunk of the vehicle.

Q. But what about that?

A. Well, it's consistent with transporting any type of narcotics. In my experience and what I have found --

DEFENSE COUNSEL: Objection, your Honor.

A. cigarette boxes are used --

THE COURT: Wait. Hold on. Yes, sir. Side bar?

THE COURT: Objection overruled. That is all in accordance with our Rules of Evidence. So Detective Sergeant Russo will be permitted to give [the jury] an opinion [pursuant to N.J.R.E. 701] as to what he thought was going on.

A. Again, in my experience, I have found a cigarette box is used to transport contraband and narcotics. And the scanning around, looking if anybody is near, placing it into the trunk of the vehicle, distancing yourself from the drugs or whatever you have, placing it in the trunk of the vehicle to more or less have it on your person or have it on your seat or something like that in the vehicle.

A trial court's evidentiary rulings are accorded substantial deference on appeal, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and may be reversed only if the trial judge committed a "clear error of judgment." State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). We find sufficient evidence from the totality of the circumstances that Judge Reed did not misapply N.J.R.E. 701 when he permitted Detective Sergeant Russo to explain his experiential basis for being suspicious of Kovacs's conduct. The testimony was not intended to portray Kovacs as a drug dealer or to suggest the intricacies of the means of distributing controlled dangerous substances. Instead, its purpose was limited to the relevant considerations of the states of mind of both Detective Sergeant Russo (why his suspicions were aroused) and Kovacs (whether the cocaine was knowingly possessed). The challenged testimony was properly presented to the jury.

Kovacs's challenge to his sentence is informed by familiar principles. Appellate review of sentences examines whether the sentencing court followed lawful sentencing guidelines and determines if the sentence imposed could have been reasonably reached based upon the evidence presented. State v. Roth, 95 N.J. 334, 365-366 (1984). However, the reviewing court "may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). New Jersey law prescribes a "system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010).

From our review of the record we do not agree with Kovacs's contention that his sentence must be overturned because Judge Reed violated the extended term principles of State v. Pierce, 188 N.J. 155 (2006). While the judge did not perform a close Pierce analysis or state he could impose a sentence from the bottom of the ordinary term to the top of the extended, the ultimate sentence substantially comports with Pierce and its progeny. In light of Kovacs's extensive prior criminal history, we do not subscribe to the view that there was an abuse of discretion in sentencing him to five years with a parole disqualifier of two and one-half-years.

Affirmed.

20110216

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