December 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANDREW J. CONTALDI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-0069.
Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles, of counsel and on the briefs).
Joshua D. Detzky, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Mr. Detzky, on the brief).
Before Judges Parrillo, Harris and Guadagno
Tried by a jury, defendant Andrew Contaldi was found guilty of fifty-five counts of third- and second-degree drug offenses and one count of first-degree being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. For the latter crime, defendant was sentenced to life imprisonment with a twenty-five year period of parole ineligibility. The remaining counts were merged with defendant's conviction for second-degree distribution of cocaine, N.J.S.A. 2C:35-5b(2), for which defendant received a concurrent seven-year term with a three-year parole bar. The court also imposed a single Drug Enforcement and Demand Reduction (DEDR) penalty of $3, 000, pursuant to N.J.S.A. 2C:35-15, although the judgment of conviction incorrectly reflects that two DEDR penalties, totaling $5, 000, were imposed. Defendant appeals, and we affirm save for a limited remand to correct the judgment of conviction to reflect only one DEDR penalty.
According to the State's proofs, in early December 2007, the Monmouth County Prosecutor's Office commenced an investigation of defendant based on a tip from a confidential informant (CI) that defendant was selling controlled dangerous substances. Over the course of a three month period ending on March 5, 2008, defendant and his associates engaged in eleven drug transactions with Sergeant Todd Rue, an undercover detective with the Monmouth County Prosecutor's Office Narcotics Strike Force.
In the first transaction on December 4, 2007, as Sergeant Rue listened in, the CI placed a telephone call to defendant to make arrangements to purchase cocaine. Defendant directed the CI to contact Philip Dorsi instead and provided a telephone number to reach Dorsi. The CI then arranged to buy cocaine from Dorsi and later met him to make the purchase. At that time, the CI introduced Dorsi to Sergeant Rue "very briefly."
On December 17, the CI, using the same contact phone number, bought more cocaine from Dorsi, who arrived at the prearranged location in the same green Nissan Maxima he had used during the previous transaction. Rue again accompanied the CI and was told by Dorsi that he could contact him directly from then on. As instructed, Rue bought cocaine directly from Dorsi on January 3, 2008. On January 9, Rue again called Dorsi, dialing the same phone number, but spoke instead to defendant, who answered the phone. Rue met with defendant at the same location where Rue had previously met Dorsi — the Shell gas station in Keyport — and purchased cocaine in the back of the gas station mini-mart where he was directed by defendant to go.
On January 11 and January 24, Rue again met with defendant and purchased more cocaine. On both occasions, they met at the same Shell gas station and transacted business in the back of the mini-mart. On the former occasion, defendant arrived in the same green Nissan Maxima that Dorsi had driven during previous drug sales with Rue, and on January 24, defendant arrived in a black 1999 Mazda Millennium registered to his girlfriend.
On January 30, 2008, Rue placed a recorded call to the same phone number. This time, Dorsi answered the phone and handed it to defendant, who explained that the phone number "was like a business number, " and its calls were being forwarded to his personal cellphone. Defendant then gave Rue his personal phone number. During the conversation, Rue told defendant that he wanted eight grams of cocaine and asked if defendant could "pump [the bags] up a little bit" because the previous bags were "a little short." To make up the difference, defendant agreed to give Rue a bag of cocaine for free. As arranged, the two met in the Shell gas station mini-mart and defendant gave Rue nine bags of cocaine in exchange for $400. During this transaction, Rue was wearing a recording device, and recorded defendant informing Rue that "he was going in on a thirty-day sentence in Middlesex, " and that Rue "would be dealing with [his brother Michael Maldonado] while he was away."
On February 4, defendant again confirmed that Maldonado was handling the business while defendant was unavailable:
I did tell [Maldonado] about you so don't even worry about it. I gave him a list of people that, for him to be able to deal with you know.
You have [my personal cellphone], . . . you have the other business number Phil's number. I'm gonna also give you my brother's personal number.
[J]ust call my brother and ahh you have all the numbers . . . . Alright, I'll see you in a month.
Rue's next three drug transactions were with Maldonado on February 4, 13 and 20, 2008. On the last date, Rue inquired how much an ounce of cocaine would cost, to which Maldonado replied probably about $1200 but that he would have to get back to him.
By the time of the next contact on February 29, 2008, defendant was out of the county jail and informed Rue to deal with him instead, stating "I can take care of all that, I'm home now." Rue's final drug transaction with defendant occurred one week later, on March 5, 2008, at the same Shell gas station mini-mart; Rue purchased ten bags of cocaine from defendant for $430.
Around the time that Rue's investigation of defendant ended, Red Bank Police Officer Robert Campanella, who was temporarily assigned to the Narcotics Strike Force, "was assigned to act in an undercover capacity in an attempt to purchase narcotics, specifically cocaine, from [defendant]." Over the course of the following two months, Campanella conducted an undercover investigation into defendant and his drug business.
On March 30, Campanella and his CI met with defendant to buy cocaine. Defendant did not have any immediately available so he apparently called a third-party and told them that Campanella was "okay to deal with." He then gave Campanella the same phone number that Rue had been using to contact first Dorsi and then defendant. During this conversation, defendant boasted about the quality of his cocaine, stating, "I don't play games with my coke. It's not cut with anything. You get it the same way I get it." Defendant also attempted to recruit Campanella to deal for him, asking if he could "move bricks of heroin for [him]."
Later that day, Campanella called the phone number and arranged to make a purchase with Dorsi, who instructed Campanella to meet him in the back of the Shell gas station mini-mart in Keyport. When Campanella expressed concern over security cameras in the store, Dorsi reassured him, explaining that "[w]e pay the store owner and employees good money, and they let us sell out of here whenever we want." Dorsi then handed Campanella four bags of cocaine in exchange for $200.
Campanella and his CI made another purchase of cocaine from Dorsi on April 28, 2008. On May 8, however, when the CI called the same phone number, Lance Schaller answered and informed the CI that he was "running [Dorsi's] packages for him." At the prearranged location that same day, Schaller told Campanella to get into his car, "a black Mazda, " where Campanella purchased three bags of cocaine for $120. Campanella's last drug transaction was on May 28, when Schaller arrived in the same black Mazda and sold Campanella $200 worth of cocaine.
As a result of these dual investigations, on June 19, 2008, defendant, Dorsi and Schaller were arrested and eventually indicted. Schaller subsequently expressed a willingness to cooperate in the police investigation. After being advised of his Miranda rights, he informed police that there was a motel room that defendant used to store and package the cocaine for sale, but that the room had been rented in Schaller's name. Schaller consented to a search of the motel room, which uncovered a "set-up" bag containing digital scales, latex gloves, a cutting agent, and Ziploc bags, as well as a piece of mail addressed to defendant.
Schaller subsequently provided a formal statement, detailing a cocaine distribution network, run by defendant, for which Schaller, Dorsi and Maldonado all worked. Maldonado would buy two hundred grams of cocaine in New York City once or twice a week and bring it to defendant at the motel. There, defendant would prepare and package the cocaine for distribution using the items contained in the "set-up bag." Once the cocaine was packaged, defendant would give it to his "runners" for street distribution. Defendant employed Schaller, Dorsi, and at one point, "some guy [named] Jamie, " as runners. Defendant provided Schaller with the drugs, as well as with a work phone and a car containing a hidden compartment to transport the drugs. The work phone had the same number that Rue and Campanella had been calling to arrange their purchases. Schaller agreed to testify at defendant's trial.
On appeal, defendant raises the following issues:
I. BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL OF THE ELEMENTS NECESSARY TO ESTABLISH THAT [DEFENDANT] WAS THE LEADER OF A DRUG TRAFFICKING NETWORK, THE DEFENSE MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED TO CORRECT A CLEAR ERROR BY THE JURY.
II. [DEFENDANT] WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE ASSISTANT PROSECUTOR'S COMMENTS IN SUMMATION, IN WHICH SHE ATTEMPTED TO DIVERT THE JURORS' ATTENTION AWAY FROM THE EVIDENCE BY URGING THEM TO "HOLD HIM ACCOUNTABLE, " AND STATED THAT THE ONLY VERDICT CONSISTENT WITH THE JURORS' OATHS WOULD BE ONE FINDING [DEFENDANT] GUILTY OF BEING A LEADER OF A NARCOTICS TRAFFICKING NETWORK. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1 PAR. 10 (Not Raised Below).
III.THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER AS SUBSTANTIVE EVIDENCE SCHALLER'S PRIOR INCONSISTENT STATEMENTS DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
IV. [DEFENDANT] WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT'S OMISSION OF AN INSTRUCTION TO THE JURY ON HOW TO EVALUATE THE DEFENDANT'S ORAL OUT-OF-COURT STATEMENTS AND TO USE CAUTION IN THAT EVALUATION. (Not Raised Below).
Following the verdict, defendant moved for a new trial on the "drug kingpin" count, arguing insufficiency of the evidence. The court denied the motion, reasoning:
[D]efendant did not suffer a manifest denial of justice by the jury's guilty verdicts. The jurors had the opportunity to assess the credibility of the State's witnesses, whom the defendant was afforded the opportunity to cross-examine, as well as the defendant's witnesses. As such, the jurors were given an opportunity to accept or reject the testimony. This Court believes that the jury was attentive throughout the trial and worked diligently during deliberations as evidenced by the length of the deliberations. Its verdict was consistent with the evidence it found credible. The Court is satisfied that the jurors did follow their oath by fairly judging the evidence as presented and the credibility of the witnesses.
Defendant now argues the court erred in denying relief because the State did not establish the elements of the "drug kingpin" crime beyond a reasonable doubt, specifically that there was insufficient proof of a structured organization or defendant's role therein. Rather, he claims the evidence, at most, established defendant was an independent seller of cocaine who occasionally cooperated with others for mutual benefit. We disagree.
A motion for a new trial is governed by Rule 3:20-1, which provides in part:
The trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
The object of the rule is "to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Thus, a trial judge cannot set aside a verdict merely because he would have reached a different result. Ibid.
Similarly, we only reverse a trial court's denial of a motion for a new trial where there is a "miscarriage of justice under the law." R. 2:10-1; see State v. Sims, 65 N.J. 359, 373-74 (1974). And, in making this determination, we must defer to the trial judge with respect to "witness credibility, demeanor, feel of the case, or other criteria which are not transmitted by the written record." Dolson, supra, 55 N.J. at 7 (internal citations omitted). If a trier of fact could have "rationally [found] beyond a reasonable doubt that the essential elements of the crime" were proven, no miscarriage of justice exists. State v. Jackson, 211 N.J. 394, 413-14 (2012) (quoting State v. Afanador, 134 N.J. 162, 178 (1993)). In other words, "[u]nless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Afanador, supra, 134 N.J. at 178.
The "drug kingpin" statute, N.J.S.A. 2C:35-3, defines the leader of a drug trafficking network as one who
conspires with two or more other persons in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State . . . any controlled dangerous substance classified in Schedule I or II, or any controlled substance analog thereof as a financier, or as an organizer, supervisor or manager of at least one other person.
Thus, a drug kingpin conviction requires that the defendant (1) conspired with at least two others; (2) was an organizer, supervisor, financier or manager; (3) engaged in a conspiracy for profit; and that (4) the conspiracy included a scheme or course of conduct to unlawfully manufacture, distribute, dispense or transport a controlled dangerous substance or analog. State v. Alexander, 136 N.J. 563, 568 (1994).
The statute contemplates "'an organization of persons who are collectively engaged in drug activities and operating within a structured framework, be it vertical or horizontal." State v. Ellis, 424 N.J.Super. 267, 275-76 (App. Div. 2012) (quoting Alexander, supra, 136 N.J. at 568) (requiring an acquittal where there was no proof that the participants had acted "collectively" even though defendant provided drugs and instructions to sellers). The drug trafficking conspiracy must involve at least three persons: the kingpin defendant and two others. Afanador, supra, 134 N.J. at 173.
"[A] defendant's position and status must be at a superior or high level in relation to other persons in the drug trafficking network and that the defendant's role must be that of a 'leader' in the drug organization or system. . . ." Alexander, supra, 136 N.J. at 574. In other words, the defendant's position must be significant and important within the organization, "wielding substantial authority and control over its operations." Ellis, supra, 424 N.J.Super. at 275. The defendant's role as leader "turns on the nature of that person's authority" and "the magnitude or extent of control." Alexander, supra, 136 N.J. at 575. A defendant can qualify as a leader "even at the street level." Ibid.
Based on the evidence in this matter, a rational jury could find that defendant was the leader of a drug trafficking network that sold thousands of dollars of cocaine a week. As to the first element of the offense, there is more than sufficient evidence that defendant had at least three people working for him: Schaller and Dorsi who sold the drugs, and Maldonado, who traveled to New York City every week to buy cocaine, helped defendant package the drugs at the motel for retail sale, and occasionally sold the drugs. Indeed, defendant referred Rue to Maldonado to purchase drugs when defendant was in jail and defendant himself referred to Dorsi as someone who worked "with him."
As to the second element pertaining to defendant's superior role in the organization, Schaller testified that he worked for defendant, whom he considered "to be [his] boss, " selling drugs for defendant and earning only ten dollars for every fifty-dollar sale, with defendant keeping the rest. Defendant also supplied the drugs to Schaller and gave him a work phone with the contact numbers of customers already programmed in. Moreover, defendant directed Maldonado to obtain the cocaine from New York and appointed his brother, who was the only other person to have access to the set-up room, to run the organization while defendant was incarcerated. Moreover, according to Campanella, defendant attempted to recruit him to sell drugs. Also, defendant paid for and held the key to the drug set-up room, where the cocaine was packaged and sold.
Defendant, as the supervisor of the drug network, also attempted to keep himself insulated from these activities: he directed customers to call the "business phone, " a cellphone he provided to his drug runners that contained the contact information for his customers; two of defendant's vehicles that were used to conduct drug transactions were not registered in defendant's name, but instead titled to either Schaller or defendant's girlfriend; and the "set-up room" at the motel where he packaged the drugs was registered to Schaller even though defendant paid for the room and had the only key.
Thus, substantial evidence demonstrated that defendant occupied a superior position in relation to the others in the drug network: he set the cocaine prices; had the calls coming in on the "business phone" forwarded to his personal phone; provided his subordinates with lists of authorized buyers; determined who the buyers should call to purchase his cocaine; and boasted about the quality of his cocaine.
As to the third element of engaging in a conspiracy for profit, Schaller testified that defendant retained most of the earnings for the drugs that Schaller sold. As noted, defendant appointed Maldonado to run the network when he was in jail and directed customers to him. Defendant also packaged the cocaine for retail sale in the motel room. He bragged about the quality of his product and tried to recruit Campanella into the organization. In fact, defendant met with the undercover officer at a Keyport bar to "talk about moving weight, " but when Campanella requested only $200 worth of cocaine, defendant "acted surprised" and directed Campanella to call "one of the guys who works with [him]." The evidence and the inferences reasonably drawn therefrom clearly establish that defendant engaged in a conspiracy for profit.
As to the final element, the proof also establishes that this conspiracy was a scheme to distribute cocaine. Indeed, defense counsel conceded at the beginning of closing arguments that defendant was involved in the sale of drugs. And there was compelling evidence that on fifteen different occasions over a six-month period, defendant and his subordinates sold cocaine to undercover police officers. Sergeant Rue testified that he bought cocaine from Dorsi on three occasions, Maldonado on three occasions, and defendant on five occasions. Officer Campanella testified to his drug transactions with defendant and Schaller.
We are satisfied that defendant's conviction of the drug kingpin crime was well supported by the evidence. There was no clear and convincing "manifest denial of justice under the law" warranting the grant of a new trial.
Defendant argues for the first time on appeal that the prosecutor's comments in summation, supposedly urging the jurors to hold defendant accountable for his actions and implying they would be violating their oath if they found him not guilty, deprived him of a fair trial. We disagree.
Because the issue was not raised below, we determine whether any error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Our courts have generally held that the State should not urge jurors to "send a message" or argue that they must protect the community by delivering a guilty verdict. See State v. Rose, 112 N.J. 454, 521 (1988); State v. Ramseur, 106 N.J. 123, 321-22 (1987). Moreover, we have looked specifically at the use of "accountability" themes in summation. See, e.g., State v. Goode, 278 N.J.Super. 85, 89-91 (App. Div. 1994) (holding that there was reversible error when the prosecutor told the jury "this is finally your chance to make a difference" by convicting defendant; improperly contended that police had no motive to lie; implied that "acquitting defendant would be a crime"; and invited the jury to consider similar past convictions as evidence of guilt in the present case). In State v. Neal, 361 N.J.Super. 522, 537 (App. Div. 2003), we reviewed a summation in which the prosecutor asked the jury
to [hold defendant] accountable for what he did. I'm asking you to held [sic] him accountable for the lies that he told. I'm asking you to hold him accountable for the betrayal of his oath; not only the oath that he took in Grand Jury but his oath as a School Board member. And I'm asking you to hold him accountable for the betrayal of the children [of] Asbury Park.
We found that these remarks were improper, especially since the theme of defendant's betrayal was woven throughout the State's case. Ibid. Thus, in combination with other inflammatory comments about the defendant's "especially egregious" conduct, they "had the capacity to deprive defendant of a fair trial." Id . at 537-38.
In State v. Hawk, 327 N.J.Super. 276, 282 (App. Div. 2000), we reviewed a summation in which the prosecutor asked the jury to "hold [the defendant] accountable for his actions" and informed them that a guilty verdict would send a message "that this community will not tolerate distributors and sellers of LSD." We held that the remarks were "inappropriate, inflammatory and constitute misconduct as they convey a personal feeling of the prosecutor not supported by facts and tell the jury that their job is to send a message to the defendant." Ibid. And, even though the trial judge had delivered a specific curative instruction, because this misconduct occurred in combination with inappropriate bolstering of the police officer witnesses' credibility, as well as improper remarks during opening statements, the statements had a "very real likelihood of denying defendant a fair trial[, ]" and thus constituted reversible error. Id . at 285.
Here, the State remarked in summation
The Monmouth County Prosecutor's Office Narcotics Strike Force temporarily has put [defendant] out of business but only you can hold him accountable for his choices and decisions. Only you can hold him accountable for running this illegal drug trade.
And there's only one way to do that, is to follow your oath and return the only verdict that is supported by the evidence, and that's a verdict of guilty, not just on the individual drug sales but on being the leader of a narcotic trafficking network.
As noted, defense counsel did not object to these remarks. And although the prosecutor touched on the theme of accountability, the comments were brief and were not reinforced by other inappropriate remarks.
"[N]ot every instance of misconduct in a prosecutor's summation will require a reversal of a conviction." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996). The error must be "so egregious that it deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322. The claimed error must be considered in the context of the entire trial. State v. Negron, 355 N.J.Super. 556, 576 (App. Div. 2002). Moreover, if the defendant voiced no objection to the challenged remarks, they are not generally considered prejudicial. State v. Frost, 158 N.J. 76, 83-84 (1999).
Here, the State's remarks simply do not rise to the level of depriving defendant of a fair trial. When we have found reversible error based on references to "accountability, " those remarks have always been compounded by other instances of prosecutorial misconduct. In Goode, supra, 278 N.J.Super. at 89-91, in addition to telling the jury they had a chance to "make a difference, " the State also remarked that police had no reason to lie, implied that acquitting the defendant would be criminal and added comments that asked the jury to consider the defendant's past drug convictions as evidence of guilt in that case. Thus, even without the accountability language, there were independent grounds for reversal.
Similarly, in Neal, supra, 361 N.J.Super. at 537-38, the State not only asked the jury to hold the defendant accountable, but also built its case around a theme of the defendant's betrayal of the community and referred to the "betrayal of the children" in closing arguments. And, in Hawk, supra, 327 N.J.Super. at 282-85, the prosecutor paired calls for accountability with improper remarks during opening arguments, that required the court to deliver a curative instruction, and improper bolstering of police credibility. As in Goode, these other statements constituted independent grounds for reversal.
In this case, the challenged remarks took place in the context of an otherwise fairly unblemished record. Indeed, defendant points to no other potentially prejudicial remarks by the State, nor does our review of the transcripts reveal any. In the context of the entire trial then, the comments of which defendant complains simply represent a fleeting momentary lapse. Unlike Goode and Hawk, there is no independent basis for reversal. And, unlike Neal, the State did not present a call to arms predicated on an emotionally-fraught theme like betraying children. When weighed against the overwhelming evidence of defendant's guilt, the challenged references did not deprive defendant of a fair trial, much less produce an unjust result.
Defendant contends that the trial court erred in not including the "false in one, false in all" charge in the jury instructions, and compounded that error by failing to specifically instruct the jury that Schaller's prior inconsistent statements could be used as substantive evidence. Again, we disagree.
The "false in one" charge is left to the trial judge's discretion. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed.2d 374 (1961) (noting that "it is difficult to see how unfairness could result" from failure to give the charge because "it merely informs the jury of a truth of character which common experience has taught all of them. . . .") (internal citations omitted). By contrast, the "prior inconsistent statements of a witness" charge may sometimes be required in instances where the "essence" of the prior inconsistent statement may be "used as substantive evidence concerning the disputed factual issue[s]." State v. Hammond, 338 N.J.Super. 330, 342 (App. Div.), certif. denied, 169 N.J. 609 (2001). But, where there is "only an inconsistency, not one or more conflicting versions of the same event, " the charge is not necessary. Ibid. And, in fact, if the "prior inconsistent statements are relied upon solely to attack the credibility of a witness, and not as substantive evidence[, ]" the charge is not given. State v. P.H., 353 N.J.Super. 527, 547 n.3 (App. Div. 2002), aff'd, 178 N.J. 378 (2004). We have previously suggested that the standard credibility charge is sufficient even when there are contradictory prior statements. State v. Allen, 308 N.J.Super. 421, 427 (App. Div. 1998) (reversing conviction when no credibility charge was given to address prior inconsistent statements of a witness, because "[a]t minimum, defendant was entitled to a full charge on the issues of credibility.").
Here, defense counsel initially requested that the trial judge provide a "false in one, false in all" instruction to the jury. The judge had previously warned that he was unlikely to include this instruction, stating "I am not a proponent and never have been from the days I was a lawyer through my judicial career . . . [of] falsus in uno, falsus in omnibus. I have never charged it and I never will." The judge then explained, "I firmly believe that the credibility charge encompasses everything anybody ever wants to say about somebody being a fabricator. . . ." After defense counsel presented his request for the charge, the judge then definitively ruled that the charge would not be included. The judge reasoned that the "falsus in uno charge wrongly invites a discarding of a witness' testimony when there should be further attention given to the totality of the person's testimony along with all the other evidence." We discern no abuse of discretion in this ruling.
As for defendant's other claim of error, once again raised for the first time on appeal, defense counsel was given an opportunity to request changes in the charge, yet he never requested that a prior inconsistent statements charge be given, even after his application for the "false in one, false in all" charge was rejected. When a defendant does not object to the lack of jury instruction at the time of trial, we analyze the claim under the plain error rule, R. 1:7-2; R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008), and determine whether it was "clearly capable of producing an unjust result." R. 2:10-2. See State v. Mays, 321 N.J.Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999). A lack of objection generally signals that defense counsel saw no error and therefore that the error was not substantial. See State v. Tierney, 356 N.J.Super. 468, 481-82 (App. Div.), certif. denied, 176 N.J. 72 (2003).
Here, the judge delivered the standard charge on "credibility of witnesses":
As judges of the facts you are to determine the credibility of witnesses, and in determining whether a witness is worthy of belief and therefore credible, you may take into consideration the following, which is not an all-inclusive list, you have your own framework within which each of you operates to assess people's credibility, but here's some that I call to your attention.
The appearance and demeanor of the witness, the manner in which he or she may have testified; the witness' interest in the outcome of the trial, if any; his or her means of obtaining knowledge of the facts; the witness' power of discernment, meaning their judgment, understanding; his or her ability to reason, observe, recollect, or relate; possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness has given; whether the witness made any inconsistent or contradictory statement; and any and all other matters in the evidence which serve to support or discredit his or her testimony.
Through this analysis, as judges of the facts, you weigh the testimony of each witness and then determine the weight to give to them. Through that process you may accept all of it, a portion of it, or none of it.
Addressing Schaller's testimony specifically, the judge gave an instruction regarding the testimony of a cooperating co-defendant:
Evidence of [Schaller's] plea of guilty [in this case] may be used only in determining the credibility or believability of his testimony as a witness. . . . You may consider such evidence along with all the other factors that I mentioned previously in determining the credibility of a witness; however, you may not use [Schaller's] plea of guilty as evidence that the defendant is guilty of the crimes that he is charged with.
The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal.
If you believe this witness to be credible and worthy of belief, you have the right to convict the defendant on the witness' testimony alone, provided of course that upon consideration of the whole case you are satisfied beyond a reasonable doubt of the defendant's guilt.
To be sure, there were inconsistencies in Schaller's testimony at trial. Even though he had claimed that both he and Dorsi worked for defendant, he admitted that Dorsi paid him for driving services. In his statement to police, he said that he had access to the motel room, along with defendant and Maldonado, but contradicted himself at trial, saying that only defendant and Maldonado had access. He also was inconsistent about his role in packaging the cocaine and whether defendant sold cocaine himself. However, these inconsistencies were not truly substantive as defendant contends because Schaller did not give conflicting versions of the essence of his testimony, namely that he worked for a drug distribution network headed by defendant.
In any event, defendant elicited this conflicting testimony in order to attack the credibility of Schaller. And, to the extent that the jury considered these statements to assess credibility, the standard charge was sufficient. The judge specifically instructed the jury to consider "whether the witness made any inconsistent or contradictory statements[, ]" in assessing credibility and further warned the jury to give "careful scrutiny" to Schaller's testimony specifically. Additionally, the substance of Schaller's inconsistent statements, even if used as substantive evidence, did not go to the heart of the charge, i.e., whether defendant was the leader of a narcotics drug trafficking network. In this regard, Schaller consistently maintained that defendant had access to the motel room and that defendant worked on packaging the cocaine for sale. And the issue of whether defendant sold cocaine himself, which defense counsel seemed to concede in closing arguments and which was supported by other evidence including the testimony of undercover police officers, had no bearing on his conviction for being a leader of a drug trafficking network, a charge that requires no personal participation in the actual act of selling. It is difficult, therefore, to imagine how a "prior inconsistent statement" jury instruction could have changed the way in which these statements were assessed. Thus, the lack of such an instruction was not "clearly capable of producing an unjust result."
Lastly, defendant contends that the court should have given the jury special instructions on how to evaluate certain out-of-court verbal statements made by him that were admitted through the testimony of witnesses, pursuant to the dictates of State v. Kociolek, 23 N.J. 400 (1957). Here again, the issue is raised for the first time on appeal since defendant never requested such a jury charge at time of trial and we therefore consider the instant challenge under the plain error rule. R. 1:7-2; R. 2:10-2; Mays, supra, 321 N.J.Super. at 633. So measured, we find that the lack of a Kociolek jury instruction under the present circumstances was not "clearly capable of producing an unjust result." R. 2:10-2.
In Kociolek, supra, the Court addressed the issue of a defendant's out-of-court statements made to third parties. The Court noted that "verbal admissions are regarded as unreliable evidence, because experience shows that they are frequently misunderstood, imperfectly remembered and inadvertently made." 23 N.J. at 421 (internal citations omitted). The Court thus held that the trial judge must instruct the jury to consider this evidence with caution. Ibid. The Court has since held that a Kociolek charge should be given, even if not requested by the defendant. State v. Jordan, 147 N.J. 409, 428 (1997). However, failure to give this charge is not necessarily reversible error. Ibid. (stating it is a "rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error. . . ."); see also State v. Crumb, 307 N.J.Super. 204, 251 (App. Div. 1997) (finding no reported decisions at that time in which failure to give the instruction constituted plain errors), certif. denied, 153 N.J. 215 (1998).
At trial, Detective Campanella testified as to a meeting he had with defendant at a bar, during which he sought to purchase a small quantity of cocaine from defendant. In response, defendant said "I thought we were here to talk about moving weight." Later, defendant suggested "[i]f you guys can move bricks of heroin for me, I'll give it to you for whatever you pay up north." He also stated that he could get another drug, "roxies, " for Campanella. Campanella testified to all these statements during trial.
As noted, defense counsel neither requested that the Kociolek charge be given nor objected to its exclusion from the jury instructions. Thus, there is an assumption that the error was not substantial. Tierney, supra, 356 N.J.Super. at 481-82. Moreover, although defendant's statements to Campanella suggest that defendant was a leader of a drug trafficking organization, they served mainly to corroborate the testimony of Schaller regarding the drug organization, as well as to show how
Campanella came to the conclusion that he was being recruited by defendant to sell drugs. Additionally, as previously noted, the overwhelming weight of the evidence in this case, apart from Campanella and Schaller's iteration of defendant's statements to them, clearly supports defendant's drug kingpin conviction. Thus, the lack of instruction was not "clearly capable of producing an unjust result."
Finally, the State is in agreement with defendant that an extra DEDR penalty was mistakenly included on defendant's judgment of conviction. At the sentencing hearing, the court imposed "a $3, 000 DEDR on the highest count[, ]" stating explicitly that it was imposing "one DEDR penalty, as I'm allowed to do." (emphasis added). However, on the judgment of conviction, the DEDR penalty is listed as $3000 on one first-degree count plus $2000 on one second-degree count for a total of $5000. This representation expressly contradicts the trial court's assertion at time of sentencing that it was imposing only one penalty, on the drug kingpin count. Clearly, when there are discrepancies between the oral sentence and the written judgment, the oral sentence generally controls. State v. Warmbrun, 277 N.J.Super. 51, 58 n.2 (App. Div. 1994) (citing State v. Pohlabel, 40 N.J.Super. 416, 423 (App. Div. 1956)), certif. denied, 140 N.J. 277 (1995). Thus, the judgment of conviction must be corrected to conform to the oral sentence.
We remand for the limited purpose of correcting the judgment of conviction to reflect the imposition of one DEDR penalty in the amount of $3000. The judgment of conviction is affirmed in all other respects.