May 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARYAM MOJICA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-03-0232.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2012
Before Judges Parrillo and Alvarez.
Tried by a jury, defendant Aryam Mojica was convicted of three third-degree drug crimes: possession of heroin, N.J.S.A. 2C:35-10a(1); with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and in a school zone, N.J.S.A. 2C:35- 7. After appropriate mergers, defendant was sentenced to a five-year term with a three-year period of parole ineligibility. Defendant appeals, arguing, among other things, that the court's failure to sua sponte instruct the jury on identification amounted to plain error. We agree and reverse.
According to the State's proofs, on a "plain clothes" assignment on November 5, 2007 at around 11:00 a.m., Officer James Diorio and his partner were traveling in an unmarked police car near the intersection of Fifth and Marshall Streets in Elizabeth. From about 100 feet away, Diorio saw a group of four men standing on the sidewalk to the right of the intersection where the officers' car was stopped at a stop sign. Two of the men, later identified as Armand Padrone and defendant, the latter of whom Diorio recognized "from the neighborhood[,]" were facing each other. As Diorio drove towards them, he saw Padrone hand money to defendant, who put the money in his right pant pocket and then reached into his left pocket. While this was happening, one of the other two men standing only ten or fifteen feet away, Jonathan Nunez, yelled "policia" as Diorio approached them. Defendant turned, walked in the opposite direction, removed his hand from his left pant pocket and extended his hand out. Diorio saw "items fly out of [defendant's] hand and land . . . separate in air and land on the sidewalk and in the street." Diorio ran and grabbed defendant. When he recognized the items on the ground to be glassine envelopes containing a suspected controlled dangerous substance, Diorio arrested defendant. A search uncovered $325 on his person in his right pocket. The items retrieved from the ground consisted of three loose envelopes and a "bundle" of ten envelopes held together with a rubber band. Their contents tested positive for heroin.
The State's expert opined based on a hypothetical set of facts similar to Diorio's account that such drugs would have been possessed with the intent to distribute. Additionally, Diorio, referring to a comprehensive drug reform map of Elizabeth that had been admitted into evidence by stipulation of the parties, testified that the incident occurred within 1000 feet of school property.
Three witnesses testified on defendant's behalf. His former girlfriend, Andrea Gutierrez, testified that around 10:30 a.m. on the day of his arrest, she drove defendant to a Dunkin' Donuts for breakfast from where he then walked to work, about ten minutes away. Defendant worked for Beatrice Camacho, who testified that defendant, who was her husband's cousin, would show up for work on weekdays, around noontime, accompanied by his cousin Armand. Her office was three blocks from Marshall Street.
Finally, Nunez testified that on November 5, 2007, he encountered defendant and his cousin Armand on 5th and Marshall Streets, approaching from the direction of the Dunkin' Donuts, with chocolate and bread. According to Nunez, the bags of heroin on the ground were his. He had thirteen bags of heroin in his sweater pocket and when he heard defendant yell "Police[,]" he threw all the bags to the ground. When initially questioned by police, Nunez admitted having "fourteen" glassine envelopes in his possession, but did not remember the brand stamped thereon because he does not read English well and had just found the heroin earlier that morning.
Evidently crediting the State's version, the jury convicted defendant of the three drug offenses charged. On appeal, he raises the following issues:
I. THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY ON IDENTIFICATION WHEN MR. MOJICA'S SOLE DEFENSE WAS MISIDENTIFICATION. (Not Raised Below).
II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MR. MOJICA'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT THREE, POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE WITHIN 1000 FEET OF A SCHOOL ZONE.
III. THE PROSECUTOR COMMITTED MISCONDUCT AND DENIED MR. MOJICA'S RIGHT TO A FAIR TRIAL WHEN HE TOLD THE JURY DURING HIS OPENING STATEMENT THAT "JUST BECAUSE A CASE IS IN COURT DOESN'T MEAN IT'S CLOSE, AND THIS IS NOT ONE OF THOSE CASES." (Not Raised Below).
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Other than the first, we find no merit to defendant's remaining arguments. R. 2:11-3(e)(1)(E).
Defendant's principal contention is that the failure of the court to sua sponte give a specific and discrete jury instruction on identification, when identification was a key issue in the case, constitutes reversible error. Because defendant neither requested such an instruction nor objected to the charge given at trial, we view the present challenge under the "plain error" standard, Rule 1:7-2; Rule 2:10-2. Plain error is
[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Jordan, 147 N.J. 409, 422 (1997) (citation omitted).]
Measured against this standard, we conclude the omission amounted to reversible error.
It is axiomatic that "[a]ppropriate and proper charges to the jury are essential for a fair trial." State v. Davis, 363 N.J. Super. 556, 560 (App. Div. 2003); see also State v. Afanador, 151 N.J. 41, 54 (1997). A court is obligated to "explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990). Even absent a specific request by counsel, when the facts so warrant, a court is obligated to instruct the jury on all relevant law. State v. Grunow, 102 N.J. 133, 148 (1986).
It is equally well-settled that "when identification is the crucial issue in the case, the defendant is entitled to a discrete and specific instruction, providing 'appropriate guidelines' and 'focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness of [the eyewitness's] in-court identification.'" State v. Middleton, 299 N.J. Super. 22, 32 (App. Div. 1997) (quoting State v. Green, 89 N.J. 281, 292 (1981)). Thus, "as a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." Davis, supra, 363 N.J. Super. at 561; see also State v. Copling, 326 N.J. Super. 417, 434 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000). The failure to give such a charge or to give an adequate charge is most often reversible error.
See State v. McNeil, 303 N.J. Super. 266, 275 (App. Div. 1997) (holding that the omitted identification charge along with other errors in the jury charge amounted to reversible error); State v. Frey, 194 N.J. Super. 326, 329-30 (App. Div. 1984) (finding reversible error when the trial judge failed to properly advise the jury on the identification issue).
In Davis, supra, the defendant was found guilty of selling drugs to an undercover officer. 363 N.J. Super. at 558-59. Although the buyer/officer had never seen the defendant before, his back-up officer recognized him as someone he had previously known. Id. at 560. The defendant fled before the officers could arrest him, and the buyer/officer identified him after being shown a single photograph. Id. at 559. The defendant was arrested four months later. Ibid. The defendant did not testify, but his defense was "squarely one of misidentification." Ibid. Defense counsel did not request a charge on identification. Id. at 560.
We reversed the defendant's convictions, finding that
[a]lthough the trial court gave general instructions on such things as credibility and the elements of the crimes charged, there was no specific instruction on the State's burden to prove identification beyond a reasonable doubt. The defense's claim of misidentification, although thin, was not specious. A jury is at liberty to reject a meritless defense, but trial courts are not at liberty to withhold an instruction, particularly when that instruction addresses the sole basis for defendant's claim of innocence and it goes to an essential element of the State's case. An extended instruction on identification was not necessary on the present facts, but at the very least the jury should have been told, in the words of the present standard Model Jury Charge on identification:
The defendant as part of [his/her] general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it. [Id. at 561-62 (quoting Model Jury Charge, (Criminal) "Identification" (1999).]
That is the situation here, as defendant was clearly entitled to a specific identification charge. Contrary to the State's position, identification was an essential and fundamental issue, substantially and materially disputed at trial. Officer Diorio, who said he knew defendant, identified him in court as the individual seen engaging in an aborted drug transaction and later discarding the heroin to the ground. Indeed this testimony was presaged in the prosecutor's opening argument to the jury that "Officer Diorio knew who Aryam Mojica was from the community. He knew who the individual was, and there is zero issue in terms of his identification."
In stark contrast to this account, however, the defense presented Nunez, who admitted possessing the drugs and throwing them to the ground. Other facts and circumstances, including the presence of four individuals in close proximity to each other and the officer's observation from a moving vehicle 100 feet away, also suggest the possibility of misidentification. And, to refute the State's proof of defendant dealing drugs, the defense offered other witnesses who testified to defendant's rather benign and routine activity that morning in buying breakfast and walking to work.
As in Davis, defense counsel reinforced the defense of misidentification during opening, cross-examination, and closing arguments. In his opening statement, defense counsel told the jury that Nunez possessed the drugs and challenged Officer Diorio's ability to observe defendant with the drugs. And on cross-examination of Officer Diorio, defense counsel did just that. In summation, counsel referenced Officer Diorio's mistakes and emphasized Nunez's testimony that he dropped the drugs.
Thus, the primary issue in this case was whether defendant was in fact the person who attempted to sell drugs on the Elizabeth Street corner and then discarded them when the police arrived. As such, the absence of a specific instruction on identification, as the essential issue in dispute was improper.
The State, however, argues that the court's detailed instruction on credibility, without mentioning the possibility of misidentification, sufficed because the ultimate resolution depended on whom the jury believed. We think not.
The critical issue of identification could not be submitted to the jury wholly within the framework of a charge on credibility generally. This is because "[t]he Model Jury Charge of identification instructs the jury on how to determine identification and the reliability of that identification" in ways and in detail in which the general credibility charge falls short. Frey, supra, 194 N.J. Super. at 330. For instance, the identification charge specifically instructs that it is solely the State's burden to prove beyond a reasonable doubt that it was defendant who possessed the drugs; reinforces the principle that it is not defendant's burden to prove otherwise or to identify the culprit; and advises that the State's case depended on the eyewitness identification by Officer Diorio, setting forth the respective factual contentions relative to this dispute. See Green, supra, 86 N.J. at 293. By comparison, the general credibility charge does not cover identification, does not guide the jury's evaluation of eyewitness testimony, and does not allow for the possibility of misidentification. In these respects, the charge is inadequate, and fatally so in this case.
That is not to say that it was necessary to present an extended charge on identification, there being no out-of-court identification, but only that the complete absence of a discrete identification instruction, under these circumstances, prejudiced defendant's right to have the jury focus its attention on his claim of innocence and therefore deprived him of a fair trial. The error is plain.
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