On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1427.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Nugent and Kestin.
Defendant, Juan Pablo Ortiz, appeals from a February 3, 2010 judgment convicting him of three crimes involving a controlled dangerous substance (CDS): first-degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) (count 2); third-degree possession, N.J.S.A. 2C:35-10a(1) (count
1); and third-degree possession with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and -5a (count
3). In respect of the sentence, the judgment, among its other provisions, provides for a merger of the third-degree possession conviction into the other two convictions. On the first-degree crime, the court sentenced defendant to a prison term for twelve years, with six years to be served before defendant would be eligible for parole. On the third-degree school zone conviction, the court imposed a concurrent sentence of imprisonment for five years, with three years to be served before parole eligibility.
The indictment named both defendant and Melvin Mendez-Rodriguez in all three crimes charged. By the time of trial, Mendez-Rodriguez had fled.
During the five-day trial, the court heard four witnesses on behalf of the State; defendant testified on his own behalf. Before each of the two police fact witnesses testified, the officer was cautioned by the court, out of the jury's presence, in accordance with a stipulation noted on the record before opening statements were delivered, to avoid any reference to "an informant's tip" the police had received that a quantity of drugs would be coming to the area from New York in a vehicle of a particular description with two occupants.
The facts depicted by the State's witnesses disclose that, on Tuesday, July 17, 2007, at about 11:30 p.m., a group of sheriff's officers were conducting narcotics-related patrols in a Paterson neighborhood, within 1,000 feet of a public school. They observed a Plymouth minivan bearing New York license plates, with two occupants, come into the area and stop, blocking a driveway in front of a residence. "The vehicle's lights were turned off, but nobody entered or exited." As the officers approached, another vehicle pulled up and stopped between the police and the minivan. The officer who was describing the scene noted:
[O]nce the car pulled away, we realized that there were now two people standing between us and the parked van, and there was a . . . third now actually on the passenger-side of the van. So, the two males had gotten out [on] the driver's side or the passenger side, but we weren't sure where the third male came from.
The officer identified defendant as the person who was "standing at the passenger side of the minivan." He stated that defendant had been in the minivan a moment earlier, along with one of the other two men, Mendez-Rodriguez, the driver and registered owner of the vehicle who, later inquiry disclosed, had an address in the Bronx. Defendant also had a New York address, in Manhattan.
As the police approached the three men, commanding "stop, police[,]" defendant ran south from the scene. The other two men were detained. One of the officers pursued defendant, stopped him, detained him, and returned with him to the scene. After questioning the third male -- who had alighted from the vehicle that had driven up as the police approached -- and others in the area who identified him, the police determined that he was not involved with the two from the minivan and had legitimate personal business in the adjacent house; and he was released.
The testifying officer then looked into the minivan and saw "on the floor, in front of the passenger seat . . . a package that was suspected to be cocaine, a kilogram of narcotics." Another witness, qualified by the court as an expert in the field of forensic science, who had tested the contents of the package in the State Police laboratory, opined that the package contained a kilogram (35.27 ounces) of cocaine. The police also recovered four cell phones from the vehicle.
Cross-examination of the officer revealed that the drugs were packaged in [a] green cellophane plastic wrapper, and it was partially in a black plastic bag, like a small bag . . . . like little small ones, if you ever go to a grocery store, the smaller -- like maybe one quart, two quart. Not like a shopping bag you would get from a grocery store that would contain a lot of items.
The officer was "not sure if [the bag] was transparent or not." He had answered in the affirmative to a question whether "the kilo of cocaine was partially in a black plastic bag?" and added:
It wasn't concealed or folded over. It was visible from the outside. It was like half in the bag. . . . The whole package wasn't concealed inside the bag. The bag was open, or like partially out, I'm not sure exactly how it was displayed but it was visible from the driver-side window.
On further cross-examination, the officer testified that the black plastic bag had not been retained by the police, and nothing was found in the minivan that had an apparent connection to defendant. Counsel's questions to the officer concerning the possibility that the bag could have been tested for fingerprints produced no acknowledgement that that was possible.
At the conclusion of the officer's testimony, defendant moved as follows:
Judge, it appears that we have a destruction of evidence issue here. So, under State v. Clawans, 38 N.J. 162 (1962), I think that at the very least there should be an adverse inference given for the destruction of the plastic bag. It is material. They failed to preserve it. Apparently failed to preserve it, it hasn't been produced. It is material because whether or not the passenger in the vehicle would have been able to know it was cocaine would depend on the packaging to a certain extent. So, at the very least[,] I think there should be an adverse inference. But I must also move to dismiss the case for destruction of such an important piece of evidence.
The State responded "that there was nothing of evidential worth of that particular bag." The argument emphasized that "[t]his particular case is about a kilo of cocaine and the bag doesn't add or take away from it."
In reflecting on the argument, the judge stated his understanding of the Clawans decision:
[It] relates more to the failure to call a witness, and I think what [defense counsel] was driving at, because the focus of his argument was the failure to preserve the black bag, and, therefore, I believe the focus of his argument would be more along the lines of destruction of evidence or spoliation of evidence. And there are other cases that deal with that issue . . . .
I know there is like a four-pronged, a five-pronged analysis, and I know that when evidence is not properly preserved, it could be in a criminal or a civil case among the remedies that are available to the court, depending on the degree of the violation, it could range from nothing to an adverse inference charge to an outright dismissal.
So, I am going to look into that, and I'm going to ask each of you to look into the law, and prior to your arguments, some time [after the intervening weekend], I will make a ruling on that.
The thrust of your argument is clear that the black bag may have contained important evidence, it may have theoretically contained exculpatory evidence, and it is crystal clear at ...