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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...