June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTONIO L. ARROYO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-03-0714.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen William Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Reisner and Yanotti.
Defendant Antonio Arroyo was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and fourth-degree charges of obstructing the administration of law, N.J.S.A. 2C:29-1, and resisting arrest by flight, N.J.S.A. 2C:29-2a(2). The trial court sentenced defendant on the CDS conviction to an extended term of eight years in prison, half to be served without parole. After merger, the court sentenced defendant to a concurrent term of eighteen months for obstructing the administration of law.
Defendant appeals from the conviction and the sentence, raising the following arguments:
1. THE JUDGE BOTH INAPPROPRIATELY FAILED TO ENFORCE A SUBPOENA ON A DEFENSE WITNESS AND APPEARS TO HAVE SCARED THAT WITNESS AWAY FROM COURT WHEN HE DEMANDED THAT THE WITNESS SHOW UP WITH A DRIVER'S LICENSE AND SOCIAL SECURITY CARD BEFORE BEING ALLOWED TO TESTIFY. (Partially Raised Below).
2. THE JUDGE IMPROPERLY INSTRUCTED THE JURY THAT HE HAD DECIDED THE ISSUE OF THE PROPRIETY OF THE POLICE ACTION IN THIS CASE. (Not Raised Below).
3. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a supplemental pro se brief, defendant presents the following additional arguments: (1) he was denied the right to confront the State's chemist at trial in violation of the Sixth Amendment; (2) the trial court erred in admitting the State's laboratory certificate without showing pre-trial reliability of the methodology underlying the report because there was no live witness; (3) his due process right was violated when the State did not provide the laboratory certificate in discovery; and (4) the laboratory report was improperly admitted because the State did not establish chain of custody.
Having reviewed the record we find no merit in any of defendant's appellate arguments, and we affirm the conviction and the sentence.
The trial was brief, and the evidence can be summarized as follows. At about eleven o'clock at night on September 23, 2009, the Atlantic City police approached defendant on the street, identified themselves, and directed him to stop. Instead of stopping, defendant ran away and, according to the police, during his flight he threw away a green cigarette box. The police arrested defendant, who struggled and resisted being handcuffed. The police retrieved the green box, which was found to contain 7.21 grams of cocaine. After the State presented evidence establishing the chain of custody, the green box, the cocaine, and the laboratory report were all admitted in evidence without objection.
On this appeal, defendant argues that the trial judge "scared off" one of his witnesses by demanding that the witness produce identification before he would be allowed to testify. Defendant further contends that when the witness failed to appear on the next trial day, the judge should have granted a continuance to enforce a subpoena, instead of ordering counsel to give their summations. Our review of the record convinces us that defendant's arguments are without merit.
This is what happened. After the State rested, defense counsel advised the court that he intended to present two witnesses whom his client's girlfriend, Maria Mendes, was insisting he ask to testify, despite his reservations about doing so. After discussing the State's objections, defense counsel conceded that presenting the witnesses would open the door to the State eliciting evidence about defendant's prior criminal record, which would be highly prejudicial to his client. Accordingly, defense counsel stated that he would not present testimony from those witnesses, his client would not testify either, and the defense rested. The court then conducted the charge conference.
However, after the lunch break, defense counsel indicated he would call a surprise witness, who was not on defendant's witness list. The court held a N.J.R.E. 104 hearing, outside the presence of the jury, during which the defense presented testimony from this witness, Luis Rojas-Colon. He testified that he saw the police approach defendant, who ran from them. Rojas-Colon later saw that the police had arrested defendant and were searching him; he observed they did not find anything. The police then asked Rojas-Colon and other bystanders if they picked anything up from the ground. They said they did not. He did not see the police pick up anything from the ground.
During his testimony, the judge asked Rojas-Colon to recite his social security number; the witness responded by reciting all but two digits, which he said he could not remember. In response to the judge's question, he also stated that he had a driver's license from Puerto Rico but had left it at home.
After the N.J.R.E. 104 hearing, the trial judge announced that he would permit Rojas-Colon to testify the next day. However, the judge stated that he would require the witness to bring identification with him to court. Defense counsel did not object to that direction and, in fact, suggested that the judge give the witness that instruction on the record. Noting that Rojas-Colon was a surprise witness, as to whom the State had no opportunity to "check on him or interview him, " the judge also stated that he would waive the sequestration order and allow one of the State's law enforcement witnesses to be present in court during his testimony. The State could then "decide whether or not they want to provide any rebuttal." The judge permitted defense counsel to fill out a notice in lieu of subpoena and hand it to Rojas-Colon in the courtroom, so he could prove to his employer that he had to be in court the next day. However, when the trial resumed the next morning, Rojas-Colon did not appear in court. Defense counsel did not request an adjournment, nor did he ask the judge to enforce the notice in lieu of subpoena.
In light of the record, we find no error, plain or otherwise, in the judge's handling of this witness. Defendant's reliance on State v. Fort, 101 N.J. 123 (1985), State v. Garcia, 195 N.J. 192 (2008), and similar cases, is misplaced, because the judge neither intimidated the witness nor prevented him from testifying. As the Court recognized in Garcia, "[t]he right to compulsory process, . . . does not mean that a defendant may violate with impunity rules of court that require the production of a witness list." Garcia, supra, 195 N.J. at 203. Here, despite defendant's eleventh-hour production of a surprise witness, the judge granted a short continuance to allow the witness to testify. See State v. Bellamy, 329 N.J.Super. 371, 378 (App. Div. 2000); State v. Dimitrov, 325 N.J.Super. 506, 511-12 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Instead, the judge made every effort to accommodate the defense, without unfairly prejudicing the State. Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
For the first time on appeal, defendant also argues that in charging the jury, the judge should not have directed the jurors to ignore the issue of whether the police acted legally or illegally in stopping defendant in the first place. He argues that the judge should not have told the jury that the court had decided the issue in pretrial proceedings because, he asserts, the judge thereby implied that he thought the police were credible. We are not persuaded.
The judge gave that portion of the charge sua sponte, rather than in response to comments from either attorney. However, there was no objection to the charge, which suggests that defense counsel did not believe it was prejudicial. State v. Macon, 57 N.J. 325, 333 (1971). Moreover, during the trial, both sides avoided discussing or presenting testimony as to why the police tried to stop defendant. Therefore, the jurors might have speculated as to the reason for the stop, and the judge correctly charged them that the legality of the stop was not an issue in the case. The judge also charged the jurors that during the trial he had made "certain rulings" concerning legal issues, either in their presence or outside their presence, but they were not to infer that his rulings were "an expression or opinion by [the judge] on the merits of the case." On this record, we cannot find that the challenged instruction had a clear capacity to produce an unjust result, and hence we find no plain error in the charge. See R. l:7-2; R. 2:10-2.
Defendant next argues that the sentence was "manifestly excessive." He contends the judge failed to find that the extended term was necessary to protect the public; that the judge failed to "segregate" the two convictions that made him extended term eligible, to be sure there was no double counting; and the court failed to focus on the offense, which was simple possession of cocaine. The record does not support any of those contentions.
The judge specified which two of defendant's prior CDS convictions rendered him extended-term eligible, and then considered defendant's many other convictions in deciding the length of the sentence. The judge also issued an extensive oral opinion explaining the reasons for imposing the sentence and the period of parole ineligibility. The judge further noted that defendant had previously violated probation a number of times, thus rendering a probationary term inappropriate.
We conclude that the sentence is not shocking to the conscience, in light of defendant's eight prior felony convictions, which included violent crimes as well as drug offenses. See State v. Roth, 95 N.J. 334, 364-65 (1984). We find no abuse of the judge's discretion and no basis to second guess the sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Pierce, 188 N.J. 155, 166-67 (2006). We affirm substantially for the reasons stated in the trial judge's oral opinion placed on the record on December 16, 2011. Defendant's additional arguments on this point do not warrant discussion here. R. 2:11-3(e)(2).
Finally, defendant's pro se brief raises several challenges to the laboratory certification (lab report) identifying the substance in the cigarette box as cocaine. Those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add this comment. The State included a forensic expert on its witness list. However, his testimony was not required because the defense did not object to the lab report See NJSA 2C:35-19c; State v Miller 170 N.J. 417 429-31 (2002) At a conference on the record just prior to the trial defense counsel asked that certain portions of the report be redacted a request the judge granted but defense counsel raised no other objection Since the lab report was admitted in evidence without objection defendant's pro se arguments are without merit Further even if admission of the report were erroneous the doctrine of invited error would preclude defendant from challenging its admission on appeal See N.J. Div Youth & Family Servs v MC III 201 N.J. 328 340-41 (2010); State v Corsaro 107 N.J. 339 345-46 (1987)