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State of New Jersey v. Jose M. Rosario

December 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE M. ROSARIO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-1385.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2012

Before Judges Yannotti and Hoffman.

Defendant Jose W. Rosario was tried before a jury and found guilty of first-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1), and other offenses. He appeals from the judgment of conviction entered by the Law Division on October 30, 2009. We affirm.

I.

Defendant was charged with second-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count one); first-degree possession of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count four); third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count five); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count six); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count seven); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count eight); and fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count nine).*fn1

At the trial of this matter, the State presented evidence which established that on January 16, 2003, Detectives Israel Brown (Brown) and Michael Perez (Perez) of the Bergen County Narcotics Task Force went to a restaurant in North Bergen with a confidential informant for a pre-arranged purchase of cocaine from defendant. After receiving a call from a back-up unit, Brown, Perez and the informant exited the restaurant and observed defendant in a green minivan. Perez and the informant approached and entered the van.

Perez and defendant discussed the purchase of an ounce of cocaine. Defendant told Perez that he would "like the quality of cocaine," he could provide him "with anything that [he] wanted" and that they "could engage in other narcotics transactions in the future." The confidential informant handed defendant $700 in cash. Defendant counted the money, confirmed that he had received $700, and hit a series of buttons on the dashboard, which opened a secret compartment in the vehicle where the cocaine was stored. Perez retrieved the cocaine.

After further discussions, defendant agreed to sell Perez three kilograms of cocaine for $69,000 the following day. After exiting the van, Perez and the confidential informant returned to the restaurant. A field test confirmed that the ounce of cocaine Perez purchased from defendant was cocaine. Brown then secured the cocaine.

On January 17, 2003, at about 4:00 p.m., Brown received a call from defendant. Defendant told Brown he would be willing to sell him three kilograms of cocaine for $69,000. Defendant asked Brown whether he liked the cocaine and Brown replied that he did. Defendant and Brown agreed to complete the sale at a motel in Hackensack later that day.

Brown testified that he observed defendant arrive at the motel in the green van. The confidential informant exited a car and entered the van. Defendant was sitting in the driver's seat and Larregui was in a passenger seat. Brown was standing in front of a door to a motel room when he observed Larregui holding a rectangular, taped package. Brown believed the package contained a kilogram of cocaine.

Brown gave a pre-arranged signal to the backup units, who moved in and arrested defendant and Larregui. Brown said that, after the arrest, he observed the hidden compartment in the van and found three kilograms of cocaine there along with two firearms. One of the weapons was loaded with four 45-caliber, hollow point bullets, and the other handgun was loaded with five 32-caliber bullets. The State Police laboratory confirmed that the package retrieved from the van contained three kilograms of cocaine.

Detective David Anthony DeLucca (DeLucca) questioned defendant after his arrest. DeLucca read defendant his Miranda rights*fn2 and provided defendant with a form that explained those rights in Spanish. Defendant signed the form acknowledging that he understood his rights.

Defendant stated that he recently became unemployed, and he borrowed money from his family and friends to purchase the cocaine. Defendant said he intended to sell the cocaine, turn a profit and repay the persons from whom he borrowed the money. Defendant admitted to selling the cocaine to Perez.

The court granted the State's motion to dismiss count nine, and the jury found defendant guilty on all other counts. The court sentenced defendant to an aggregate term of twenty-four years in State prison, with a nine-and-one-half-year period of parole ineligibility. The court also imposed appropriate fines and penalties.

Defendant appeals and raises the following issues for our consideration:

I. DENYING [DEFENDANT] HIS RIGHT TO CONFRONTATION, THE TRIAL JUDGE ADMITTED LABORATORY CERTIFICATES IN EVIDENCE, OVER DEFENSE COUNSEL'S OBJECTION, AND WITHOUT EXPERT TESTIMONY OF THE ANALYST WHO PERFORMED THE FORENSIC TESTS.

A. Because the Laboratory Certificates Are Testimonial, the Confrontation Clause Demanded the ...


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