October 17, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN D. SANES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-2970.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant Juan Sanes was found guilty after a bench trial of possessing a controlled dangerous substance (CDS), third degree, N.J.S.A. 2C:35-10a(1), count one; doing so with the intent to distribute, third degree, N.J.S.A. 2C:35-5a(1), -5b(3), count two; doing so within 1000 feet of a school, third degree, N.J.S.A. 2C:35-7, count three; conspiracy to distribute CDS, third degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3), count four; and employing a juvenile in a drug distribution scheme, second degree, N.J.S.A. 2C:35-6, count five. After accounting for merger and denying a motion for an extended term as a persistent offender, a different judge sentenced defendant to ten years, with a five-year minimum period of parole ineligibility on the conviction for employing a juvenile, concurrent to a five-year term and a three-year period of parole ineligibility on the school zone offense. We affirm as to counts one through four, and reverse as to count five, employing a juvenile in a drug distribution scheme.
Defendant's conviction arose out of a narcotics surveillance operation on the morning of June 7, 2007 in the 700 block of North 8th Street in Camden, a high crime area within 1,000 feet of an operating elementary school. Camden County Prosecutor's Office Investigators Jeff Dunlap and Randall MacNair were primarily responsible for the operation.
At about 8:00 a.m., MacNair entered an abandoned two-family row-home at 718 North 8th Street and climbed to the second story front window of 716. The city block is bounded on the north by State Street, on the south by Vine Street, on the west by 8th street, and on the east by Raymond Street. The house, situated in the middle of the block on 8th street, is bordered by an alley on the upper side and another alley on the lower side - both running east to west. The upper alley runs through the block, east-west, between 8th and Raymond Streets, and the lower alley also runs east-west from 8th street, but terminates at the rear of a Raymond Street house. Another alley runs north-south from Vine Street to the rear of a State Street house intersecting with the lower and upper alleys.
Once on the second floor of number 716, MacNair unbolted the front window facing 8th Street and lowered so he could see through it and the boards that covered it. MacNair observed J.A., then seventeen years old. He appeared to be an Hispanic male wearing a white hat, black t-shirt, and blue jean shorts loitering on the block. MacNair radioed that information to Dunlap, who had set up surveillance in a dilapidated garage to the rear of an 800-block State Street house. When peering out through gaps in doors, Dunlap could view the center of the block, the rear of number 718 to his right, as well as portions of the two east-west and the north-south alleys.
MacNair saw defendant drive a gray pick-up truck on 8th Street, and park a few houses down from number 718 and on the same side of the street as MacNair. Defendant exited his truck and talked with J.A. for a few minutes. He returned to his truck and left. Although he did not hear the conversation, MacNair told Dunlap that he suspected J.A. and defendant planned to distribute drugs.
Soon thereafter, Dunlap observed defendant park his truck on Vine Street and walk north towards State Street (directly toward the garage) using the north-south alley. As he walked toward Dunlap, defendant was on his cell phone instructing the listener to "come to the back." Defendant was carrying a black bag. The listener was apparently J.A., who almost immediately arrived to meet defendant, who was then near the garage.
Defendant handed the bag to J.A. and J.A. turned to run away. After a few strides, defendant stopped J.A., and J.A. returned the bag to defendant. Defendant gave J.A. one or more items from the bag. Defendant then buried the bag in a hole he dug near a fence line in the center of the block. J.A. placed the items he received under an exposed slab of concrete at the rear of number 718.
MacNair then saw J.A. and defendant emerge from the alley and stand around 8th Street. MacNair saw a white male approach them. J.A. gestured to the white male to enter the upper alley and defendant warned the man to not "come back to the same alleyway you get it in." The white male and J.A. entered the alley approaching Dunlap's location. Defendant remained on 8th Street, serving as a lookout. J.A., joined by the white male, went to the concrete slab and handed the white male an object that was under the slab in exchange for paper money. Dunlap observed the white male depart toward Raymond Street.
MacNair saw J.A. return to 8th Street. MacNair heard defendant "raising his voice" towards J.A. instructing him not to "take the buyers down [the] same alleyway, use different ones. Don't come back the alleyway you . . . went in."
Then, a black male arrived, and Dunlap observed J.A. and the black male engage in a similar transaction. Defendant remained on 8th Street while J.A. escorted the male to the alleyway. The black male departed toward Raymond Street. Dunlop next saw J.A. return to the concrete slab and retrieve the items he placed there and transferred them to the rear of 716 8th Street in a hole near its plywood-boarded rear door.
MacNair and Dunlap testified that they observed two or three more suspected drug transactions in which J.A. engaged the buyers, while defendant remained in the vicinity on the 700 block of 8th Street. Dunlap then ordered defendant's and J.A.'s arrest. Afterwards, Dunlap retrieved the buried black bag, and found sixteen bags of heroin. Nothing was found under the concrete slab, but an additional nine bags of heroin were found near the rear door of 716 8th Street.
The defense presented a diametrically opposed version of events that morning. Defendant, who was on parole, testified that he left his home at approximately 8:15 a.m., shortly after his parole-imposed curfew ended, to pick up his daughter from her mother's house and take her to daycare. While at his daughter's home, her mother asked defendant to pick up her sister and the sister's daughter and drive them to school. They lived in the 700 block of North 8th Street. When he arrived to pick up the children, he parked his pick-up truck on Vine Street and walked to the house. He encountered J.A., whom he described as an acquaintance whom he had not seen in four or five years. They chatted briefly. Defendant waited a short time for the children to come out of the house and at that point he and the children returned to his pick-up truck. As defendant drove to the school, police stopped and arrested him.
Defendant denied that he had possessed the black bag, entered the alley, or was otherwise involved in the possession or distribution of drugs that morning. Defendant insisted that despite his testimony that he previously lived at 710 North 8th Street for many years, he never walked the alleys on the block and only stayed in his backyard.
J.A. admitted that he possessed and sold heroin that morning. He also admitted that he and defendant met that morning, but claimed they only exchanged pleasantries and talked about family. He denied that defendant was his heroin supplier, or was involved in J.A.'s drug-related activities. He denied that the heroin seized by the police and introduced in evidence was the same heroin that J.A. had possessed.
The trial judge conducted a view of the garage and the second floor window where Dunlap and McNair conducted their surveillance. In his decision, he stated he was convinced that Dunlap and McNair were able to see and hear what they claimed at trial. He credited the officers and discredited J.A. and defendant. In short, there was sufficient credible evidence to support the court's finding of guilt, beyond a reasonable doubt, as to: count one, possessing a controlled dangerous substance (CDS), third degree, N.J.S.A. 2C:35-10a(1); count two, doing so with the intent to distribute, third degree, N.J.S.A. 2C:35-5a(1), -5b(3); count three, doing so within 1000 feet of a school, third degree, N.J.S.A. 2C:35-7; and count four, conspiracy to distribute CDS, third degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3).
Defendant raises the following points on appeal:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF CDS POSSESSION WITH INTENT TO DISTRIBUTE, THUS, THE VERDICT OF GUILTY WAS AGAINST THE WEIGHT OF THE EVIDENCE.
A. The Testimony Relied On By The Trial Judge Was Vague And Contradictory, Requiring Reversal As A Matter Of Law.
B. The State Failed To Establish That The Defendant Employed J.A., A Juvenile, In A Drug Distribution Scheme.
THE DEFENDANT DID NOT EFFECTIVELY WAIVE HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL (NOT RAISED BELOW).
THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
THE EXCESSIVE TIME DELAY OF ONE YEAR BETWEEN DEFENDANT'S CONVICTION AND HIS SENTENCE VIOLATED DEFENDANT'S RIGHT TO A SPEEDY TRIAL AND TO DUE PROCESS (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PAR. 10; R. 3:21-4).
We first address defendant's second point regarding his waiver of his right to a jury trial; then review his weight-ofthe-evidence arguments; and then briefly address his points pertaining to sentencing.
Having reviewed the record and the applicable standards, we are satisfied that there was ample support in the record for the court's determination that defendant voluntarily, knowingly, and intelligently waived his right to a jury.
Several days before jury selection, defendant expressed on the record his desire that the jury in his case be permitted to conduct a site visit to test the veracity of the surveillance officers. The court broached the subject of a jury waiver. Defendant responded, "I want 12 members to decide but I would like them to go there[.]" The court took the request for a jury view under advisement. The next day, however, defendants two attorneys, Anthony Rizzo and Andrew DuClair, advised the court that defendant intended to waive his right to a jury trial. The following colloquy then took place:
THE COURT: Mr. Sanes, I have in front of me a waiver of trial by jury and it has your signature on it. Let me just hold it up sir. Is this the form that you just signed, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Did you have an opportunity to meet with both attorneys with regard to this issue?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And you have been advised of the charges against you, which are - because I prepared the jury charge last night - it's a possession of drugs, CDS; possession with intent to distribute; possession with intent to distribute within 1,000 feet; conspiracy to distribute CDS; and employing a juvenile to distribute CDS. Do you understand the five charges?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And you understand that you have an absolute constitutional right to a trial by jury; and, in fact, you and I were chatting about that yesterday, is that accurate?
THE DEFENDANT: Yes, sir.
THE COURT: And it's my understanding, after consulting with your attorneys, it is your decision to waive that right and to proceed with a non-jury trial, where I will decide your guilt or innocence, as it relates to all five charges. Am I correct?
THE DEFENDANT: Yes, [y]our Honor.
THE COURT: Are you doing so freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Did -
THE DEFENDANT: I'm going with your word, what you promised me, you're going to give me a fair trial and that's what I'm looking for.
THE COURT: Well, I'm going to give -
THE DEFENDANT: I know you're going to the best of your knowledge.
THE COURT: You'll get it. The promise is, you'll get a fair trial. There are no other promises; you understand that?
THE DEFENDANT: I understand that, but we talked about something about
MR. DUCLAIR: Judge, if I may? I indicated to Mr. Sanes that we will be making an application - because we're not going to a jury - to make - but still make an application to have the alleged crime scene viewed
THE COURT: Yeah, and -
THE DEFENDANT: - but no promise.
THE COURT: And as I indicated, you know, if the application is made, if it's a jury trial, I will deal with it at the time and under the standards; and if it's a non-jury, I will deal with the same standard.
THE DEFENDANT: Mm-hmm.
THE COURT: What I did say in chambers - and it's not to entice him one way or another, so it's clear and I'm saying it in front of him now - is, in the event - well listen. I'm only human. It's a heck of a lot easier for one person to go out and look than it is taking a jury out.
THE DEFENDANT: Mm-hmm.
THE COURT: But that should not sway him - and I'll repeat it - that should not sway him one way or another. Do you understand that, Mr. Sanes? I'm not guaranteeing it. When the application is made, if I'm doing a non-jury, I very well may decide not to go. Do you understand that? (Extended pause)
THE COURT: Yes or no?
THE DEFENDANT: Yes.
THE COURT: Okay. And you understand that I will decide your guilt and innocence in this matter, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And there are no promises, other than what you say, you'll get a fair trial. Do you understand that? THE DEFENDANT: Yes, sir.
THE COURT: Under these circumstances, are you waiving or giving up your right to a jury trial?
THE DEFENDANT: Yes, sir. I go with you. THE COURT: Okay. Are you doing so freely and voluntarily?
THE DEFENDANT: Yes, sir.
THE COURT: Are there any promises that have been given to you, other than what you and I just discussed?
THE DEFENDANT: No, sir.
THE COURT: Okay. Did anyone threaten, force or coerce you?
THE DEFENDANT: No.
THE COURT: All right. Did you have ample opportunity to speak to both attorneys with regard to this issue?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with their recommendations to you?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions of Mr. Sanes?
MR. ARONOW (the assistant prosecutor): No.
THE COURT: All right. And you understand you can't go back on it at this - you know, come Monday afternoon when we start?
THE DEFENDANT: I know. I already know.
Defendant argues on appeal that his waiver was neither voluntary nor knowing. He asserts that the record does not reflect that he had discussed the advantages and disadvantages with his attorneys, nor that he was aware of the implications of his waiver. He argues that his waiver was involuntary because it was made in return for an implicit promise to conduct a site visit. We are unpersuaded.
A defendant charged with a crime has a constitutional right to a trial by jury. U.S. Const. Amend. VI; N.J. Const. art. I, ¶ 9-10. He does not have a correlative right to a non-jury trial. State v. Dunne, 124 N.J. 303, 312 (1991). Rule 1:8-1a expressly authorizes the court to grant a non-jury trial, but requires that defendant make his request in writing, on notice to the prosecutor, who has an opportunity to be heard. The record reflects that the procedural prerequisites were met. Although not made a part of the record, the colloquy between the court and defendant referred to a written waiver. And, the State was indisputably on notice and permitted to object.
As for the substantive standards governing a request to waive a jury, the Supreme Court in Dunne, supra, set forth three general areas of inquiry:
[W]hen reviewing a request to waive a jury trial, a court should:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant's request in the circumstances of the case. [124 N.J. at 317.]
Although the trial court here should have expressly set forth its findings and reasons for granting defendant's request, there is no doubt, from our review of the record, that defendant's waiver was knowing and voluntary, and the trial court implicitly so found. Defendant agreed that he consulted with his attorneys and he preferred that the court, and not a jury, decide the case. He agreed that he was neither threatened nor coerced. We reject defendant's argument that his waiver was involuntary because the judge allegedly implicitly promised to conduct a view of the surveillance locations. The court clearly advised defendant that it would apply the applicable standard to a request for a view, whether the fact-finder was a jury or the court. In short, defendant's waiver was knowing and voluntary.
Defendant's argument that the verdict as to counts one through four was against the weight of the evidence lacks merit and warrants little discussion. Defendant failed to move for a new trial before the trial court and therefore waived the argument. See R. 2:10-1 ("In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."); State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). While we may choose to consider the argument in the interests of justice, State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990), we find no "miscarriage of justice under the law," R. 2:10-1, that would justify disturbing the verdict as to counts one through four.
However, we reach a different result with regard to count five, charging employing a juvenile in a drug distribution scheme. We begin our analysis of this issue by reviewing the elements of the offense, N.J.S.A. 2C:35-6, and the court's obligation to set forth sufficient findings. R. 1:7-4. We will then apply those principles to the court's decision.
N.J.S.A. 2C:35-6, entitled "Employing a juvenile in a drug distribution scheme," states: "Any person being at least 18 years of age who knowingly uses, solicits, directs, hires or employs a person 17 years of age or younger to violate N.J.S. 2C:35-4 or subsection a of N.J.S. 2C:35-5 is guilty of a crime of the second degree." We have construed the statute to require more than mere joint involvement of an adult and juvenile; the adult must control the juvenile. "The statute does not permit a jury to convict merely because a juvenile and adult were involved in the transaction. The use of the active verbs in the statute requires that the adult control the juvenile." State v. Laws, 262 N.J. Super. 551 (App. Div.) (reversing conviction where court failed to instruct jury that statute implicitly required adult's control over juvenile, and evidence could support finding that juvenile employed adult defendant), certif. denied, 134 N.J. 475 (1993).
The statute focuses on the actions of the adult, not the juvenile. Thus, it is a crime for an adult to use a child who is passively involved in the drug offense. See State v. S.C., 289 N.J. Super. 61, 66-69 (App. Div.) (holding that bringing a three-year-old on a heroin pick-up to avoid police suspicion constituted use of a juvenile), certif. denied, 145 N.J. 373 (1996). The term "use" should be broadly interpreted in accord with ordinary meaning. Id. at 67.
In a bench trial, the court's findings, as required by Rule 1:7-4, should be sufficient to enable the reviewing court "to evaluate what elements the judge considered, just as instructions are reviewed in a jury trial to determine legal error." State ex rel. L.W., 333 N.J. Super. 492, 498 (App. Div. 2000) ("[I]n a criminal, quasi-criminal, or juvenile bench trial, a judge should . . . make specific findings of fact regarding elements of the offense. . . ."). See also State v. Locurto, 157 N.J. 463, 470 (stating that Rule 1:7-4 "requir[es] a trial court sitting without a jury to 'state clearly its factual findings and correlate them with the relevant legal conclusion.'") (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). Where a judge omits mention of a specific essential element and findings related thereto, a court must remand for further findings. L.W., supra, 333 N.J. Super. at 499. See also State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992) (remanding for further findings after determining that the court in a bench trial failed to make necessary findings regarding essential elements of offense).
Applying these principles, we are compelled to find that the court failed to find the element of control that is essential to a conviction of employing a juvenile in a drug distribution scheme. In finding defendant guilty of conspiracy, the court found that defendant "was working along with [J.A.] in the distribution of CDS." However, the court did not expressly find that defendant used or controlled J.A. Yet, when considering the employing-a-juvenile count, the court presumed that the only additional element that it needed to assess pertained to J.A.'s age. The court concluded that proof that the two were "working together" satisfied the requirement of proving that defendant "use[d], solicit[ed], direct[ed], hire[d] or employ[ed]" J.A. as required by N.J.S.A. 2C:35-6. However, as we found in Laws, supra, proof only that the adult and juvenile were working together, without more, is insufficient.
The judge who presided over the trial has retired. Consequently, we cannot remand for the purpose of obtaining additional findings of fact and conclusions of law. A new trial is necessary on count five of the indictment.
Defendant argues that the delay in his sentence - from the March 6, 2008 verdict to a March 26, 2009 sentence - violated his right to a speedy trial. See U.S. Const. Amend. VI, N.J. Const. art. I, ¶ 9-10. We disagree. The record reflects the delay in sentence was occasioned by the trial judge's unavailability, and defendant's desire to delay sentence until the judge's return. Once defendant decided to proceed before a different judge, sentencing occurred with reasonable promptness. A speedy trial violation may not be grounded in delays resulting from defendant's own request. State v. Farrell, 320 N.J. Super. 425, 446 (App. Div. 1999); State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996).
Defendant's remaining argument that his sentence was excessive because the sentencing judge failed to properly consider a mitigating factor is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, and reversed and remanded as to count five.
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