June 7, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ORLANDO CORNEJO,  a/k/a EL CHINO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-06-1210.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Following a jury trial, defendant Orlando Cornejo was convicted of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1), -b(1) (count two); and first degree manufacturing, distributing or dispensing a CDS, N.J.S.A. 2C:35-5a(1) (count three). The charges stemmed from an undercover investigation of defendant's involvement in narcotics distribution. During a six-month period, defendant sold over six ounces of cocaine to a police informant.
The trial judge merged counts one and two with count three, and sentenced defendant on count three to a fifteen-year term of imprisonment with seven and one-half years of parole ineligibility. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION BY NOT GRANTING [DEFENDANT'S] MOTION FOR A MISTRIAL DUE TO JURY MISCONDUCT.
POINT II: [DEFENDANT'S] SENTENCE IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
We reject these contentions and affirm.
Defendant moved for a mistrial based on alleged juror misconduct. On the second day of trial, a juror reported that some jurors had been discussing the case. The trial judge questioned each juror individually on the record in defendant's and defense counsel's presence. Of the twelve jurors, eleven said there were no discussions about the facts of the case. They also said they could be fair, remain open-minded, and wait until deliberations to discuss the case. Juror No. 12 said that one juror was very opinionated and had made comments about certain witnesses. She also said, however, that the jurors did not discuss witness credibility or defendant's guilt or innocence, and that her ability to be fair was not compromised by what she heard. She, too, agreed she could remain open-minded until the end of trial. The trial judge found there was no juror taint and denied defendant's motion for a mistrial.
"A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J.Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action[, ]" it should deny a request for a mistrial. Id. at 281.
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court[.]" State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it is an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). We discern no abuse of discretion in the denial of defendant's motion for a mistrial.
The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.
"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality."
R.D., supra, 169 N.J. at 557-58; see also State v. Maisonet, 166 N.J. 9 (2001) (holding that "'the court has an independent duty to act swiftly and decisively to overcome the potential bias of a jury from outside influences'" (quoting
Williams, supra, 93 N.J. at 63)). As we have held,
The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct [like juror exposure to outside influences] is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.
[State v. Scherzer, 301 N.J.Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]
Where it becomes apparent at trial that a juror may have been exposed to extraneous information or outside influences, the trial "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby."
R.D., supra, 169 N.J. at 558. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2013) (citations omitted) pertinently states that:
[a]lthough the rule is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted. In that situation the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel to determine if there is a taint. If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint. The court is then obliged to determine, assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. . . .
If the trial court fails to so proceed and the circumstance is indeed one which is apparently tainting, the taint must be presumed and a new trial ordered.
See State v. Bisaccia, 319 N.J.Super. 1, 13 (App. Div. 1999) ("[W]here, as here, there is the possibility of actual juror taint or exposure to extraneous influences (including jury misconduct and 'comments made to jurors by outside sources'), the judge must voir dire that juror and, in appropriate circumstances, the remaining jurors.").
Here, there was no evidence a juror was exposed to extraneous information or outside influences that may have impinged on his or her impartiality. The alleged misconduct concerned an opinionated juror who had allegedly made comments about certain witnesses. In compliance with the requirement set out in R.D., as explained in Rule 1:16-1, the judge questioned each juror to determine if any misconduct had occurred that could have possibly impinged on their impartiality or prejudiced defendant. The judge evaluated the jurors' responses and determined there was no taint. We are satisfied that the record supports that determination. Accordingly, the judge properly denied defendant's motion for a mistrial.
Defendant contends his sentence is excessive because the judge failed to properly weigh aggravating and mitigating factors. Defendant does not challenge the judge's finding and application of aggravating factor three, "[t]he risk that the defendant will commit another offense, " N.J.S.A. 2C:44-1a(3), aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law, " N.J.S.A. 2C:44-1a(9), and mitigating factor seven, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense, " N.J.S.A. 2C:44-1b(7). He argues the judge should have found and applied mitigating factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur, " N.J.S.A. 2C:44-1b(8), and factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents, " N.J.S.A. 2C:44-1b(11). He asserted that he had two young daughters and because he was an illegal immigrant likely be deported after serving his sentence, it was unlikely his conduct would recur.
The judge found that defendant was likely to commit another offense given that he was involved in drug distribution from his home and business and sale of drugs on six different occasions over the course of several months. The judge determined that the hardship on children was an ordinary result in the sentencing of every defendant who has children.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of "discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence"[;] (2) "require that the factfinder apply correct legal principles in exercising its discretion"[;] and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
We discern no abuse of discretion in defendant's sentence. The record does not support mitigating factors eight and eleven. The fact that defendant sold such a large amount of cocaine from his home and business over several months indicates his conduct was not the result of circumstances unlikely to recur. Defendant's possible deportation would not reduce the likelihood that he would re-offend in the United States and New Jersey.
The record also does not support mitigating factor eleven. Defendant was arrested and incarcerated on October 7, 2009, and remained incarcerated thereafter. There is no competent, credible evidence that he supported his family. Rather, defendant's pre-sentence report, which he agreed was accurate, indicates that he and his wife separated in 2010, and he did not have primary care of the children or pay spousal or child support.