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State v. Melendez

Superior Court of New Jersey, Appellate Division

April 23, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LUIS MELENDEZ, a/k/a ARTURO MELENDEZ and PITO MELENDEZ, Defendant-Appellant.

          Argued September 12, 2017

          On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-02-0332.

          Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, of counsel and on the brief).

          Kerry J. Salkin, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Kerry J. Salkin, on the brief).

          Rebecca Livengood argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Rebecca Livengood, Alexander R. Shalom, Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

          Before Judges Reisner, Hoffman, and Mayer.

          OPINION

          REISNER, P.J.A.D.

         Based on overwhelming evidence gathered during the execution of a search warrant, a jury convicted defendant Luis Melendez of multiple drug and weapons offenses.[1] After merger, the trial court sentenced defendant to an aggregate term of thirty years in prison, fifteen years of which were to be served without parole.

         Defendant appeals from his conviction and sentence. Significantly, he challenges the admission in evidence of the answer he filed in a parallel civil forfeiture case. We reject defendant's argument that admission of this evidence violated his Fifth and Sixth Amendment rights, but we hold that, in the context of this case, the process by which the State induced defendant to file the answer was fundamentally unfair. Although the evidence should not have been admitted, we conclude that the error was harmless. We provide guidance for future forfeiture proceedings to avoid the unfairness that occurred in this case.

         We affirm the convictions on all counts, except for the conviction for second-degree unlawful possession of a weapon. Due to plain error in the jury charge, we reverse and remand for retrial as to that count only. We affirm the sentence of thirty years, fifteen years to be served without parole.[2]

         I

         The following evidence was the subject of a pre-trial motion to reveal the identity of a confidential informant (CI). The Hoboken police conducted a month-long investigation, during which they used a CI to make several undercover purchases (controlled buys) of drugs from defendant. The CI made the purchases at an apartment on the sixth floor of a building located at a specific address on Marshall Street in Hoboken (the Marshall Street apartment).[3] Based on the controlled buys, the police obtained a search warrant for the Marshall Street apartment.

         Next, we summarize the evidence placed before the jury during the trial. The police arrived at the Marshall Street apartment to conduct a search pursuant to a warrant. When the apartment's occupants would not immediately open the door for the police, the officers broke down the door with a battering ram. During the search, which focused on the apartment's back bedroom, the police found 347 bags of heroin, packaged in bundles. Some of the heroin was found in dresser drawers, along with other types of CDS. The police also found a metal sifter, equipment used to seal plastic bags, stamping equipment of a kind used to label bags of heroin, drug testing kits, hypodermic needles, a radio scanner, and a book of radio frequencies used by various law enforcement agencies. In a bedroom closet, the police also found handcuffs, a digital scale, a .44 magnum handgun and $2900 in cash.

         The State presented the following evidence connecting defendant to the back bedroom. In the same dresser drawer that contained some of the heroin, the police found two prescription pill bottles with defendant's name on them. One of the bottles contained Oxycodone pills. The other contained allergy medicine. Each bottle listed a different address for defendant, one in Newark and the other in Brooklyn. The police seized the pill bottles, and they were introduced in evidence at the trial. On cross-examination, one of the officers testified that, during the search of the bedroom, he found some "personal papers" with defendant's name on them; however, he did not seize those documents.

         In the bedroom closet that contained the cash and the handgun, the police also found and seized a set of handcuffs with the name "Zulma" engraved on them. At the trial, defendant's former live-in girlfriend, a law enforcement officer named Zulma, identified the handcuffs as having been issued to her by her employer. She testified that she had several pairs of handcuffs and did not realize that pair was missing. The former girlfriend also testified that she had a twelve-year relationship with defendant and had two children with him. Their relationship ended in 2001, and she never lived in the Marshall Street apartment.

         While the search of the apartment was proceeding, one of the officers walked into the hallway outside the apartment and saw defendant emerge from a sixth-floor stairwell. The officer placed defendant under arrest. At the police station, another officer asked defendant for some routine pedigree information in order to complete the arrest report. According to this officer, when he asked defendant for his home address, defendant gave the address of the Marshall Street apartment. The officer recorded that information on the arrest report.

         The State also presented evidence from which a jury could reasonably infer that other members of defendant's family lived in the Marshall Street apartment. When the police entered the apartment, they found it occupied by a man and a woman, both in their fifties or sixties, and a young child - all named "Melendez." The man and woman attended the trial, and one of the testifying police officers identified them to the jury as the two adults named Melendez who were present in the apartment during the search.

         The State also introduced evidence that defendant filed an answer to a civil forfeiture complaint, in which he admitted that the $2900 belonged to him and claimed it was the lawful proceeds of a check issued to him by the federal government.

         II

         On this appeal, defendant challenges the conviction and the sentence, raising the following points of argument:

POINT I: BECAUSE THE STATE OBTAINED DEFENDANT'S STATEMENT IN A QUASI-CRIMINAL CIVIL FORFEITURE ACTION POST-INDICTMENT, WITHOUT ADMINISTERING MIRANDA RIGHTS, AND THROUGH COERCION BY THREATENING TO PERMANENTLY DEPRIVE DEFENDANT OF HIS PROPERTY, THE TRIAL COURT ERRED IN RULING THAT THE STATEMENT WAS ADMISSIBLE IN THE STATE'S CASE-IN-CHIEF DURING DEFENDANT'S RELATED CRIMINAL TRIAL
POINT II: THE TRIAL COURT ERRED IN PERMITTING TESTIMONY AT TRIAL AS TO AN ALLEGED STATEMENT MADE BY DEFENDANT WITHOUT FIRST CONDUCTING A HEARING TO DETERMINE ADMISSIBILITY, AS REQUIRED BY N.J.R.E. 104(C). THE ERROR WAS COMPOUNDED WHEN THE TRIAL COURT FAILED TO DECLARE A MISTRIAL AND REFUSED TO ALLOW DEFENDANT A BRIEF ADJOURNMENT TO CALL A WITNESS TO REFUTE THE TESTIMONY
POINT III: BY INCORPORATING EVIDENCE PRESENTED AT TRIAL INTO THE QUESTIONS POSED TO THE NARCOTICS EXPERT, THE STATE IMPERMISSIBLY INTRODUCED EXPERT OPINION TESTIMONY THAT INVADED THE PROVINCE OF THE JURY (PARTIALLY RAISED BELOW)
POINT IV: THE TRIAL COURT'S INSTRUCTIONS ON UNLAWFUL POSSESSION OF A HANDGUN ELIMINATED AN ESSENTIAL ELEMENT OF THE CRIME AND THUS DENIED DEFENDANT THE RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW (PARTIALLY RAISED BELOW)
POINT V: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO COMPEL THE STATE TO REVEAL THE IDENTITY OF THE CONFIDENTIAL INFORMANT AS THAT INFORMANT'S IDENTITY WAS ESSENTIAL IN DEFENDANT'S CHALLENGE TO THE SEARCH WARRANT
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. ADDITIONALLY, THE SENTENCING COURT DID NOT PROVIDE ANY REASONING TO SUPPORT THE SENTENCE IMPOSED

         After reviewing the record, we conclude that several of defendant's arguments require only brief discussion.

         We reject defendant's Point II, because the police were entitled to ask defendant for routine pedigree information, including his name and address, for purposes of completing the arrest report. See State v. M.L., 253 N.J.Super. 13, 21 (App. Div. 1991); State v. Cunningham, 153 N.J.Super. 350, 352 (App. Div. 1977). The police were not required to administer Miranda[4]warnings before asking for that information. M.L., 253 N.J.Super. at 21. As a result, defendant's statement, that the Marshall Street apartment was his home address, was admissible.

         The arrest report was provided in discovery, and the introduction of the information should not have come as a surprise to the defense. We find no abuse of the trial judge's discretion in denying defense counsel's mid-trial request for a N.J.R.E. 104(c) hearing concerning the contents of the arrest report. See State v. Scott, 229 N.J. 469, 479 (2017). Because no rule of law required that the trial judge make a preliminary finding of admissibility as to this statement, a N.J.R.E. 104(c) hearing was not required. See N.J.R.E. 104(c) (requiring an in limine hearing "[w]here by virtue of any rule of law a judge is required in a criminal action to make a preliminary determination as to the admissibility" of a defendant's statement).

         As to Point V, the motion judge did not abuse her discretion in denying defendant's application to reveal the identity of the confidential informant. See State v. Milligan, 71 N.J. 373, 384-85 (1976). The CI was not a witness in the case, and the charges against defendant were not based on his prior sales of drugs to the CI. See N.J.R.E. 516; State v. Brown, 170 N.J. 138, 148-50 (2001); State v. Florez, 134 N.J. 570, 578-80 (1994). We affirm on this point for the reasons stated by the judge in her thorough February 2, 2012 written opinion. Defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

         Addressing defendant's Point III, we agree that the police narcotics expert should not have been permitted to opine - based on a long hypothetical question that incorporated most of the evidence in this case - that narcotics were packaged and sold from the apartment. See State v. Cain, 224 N.J. 410, 427-28 (2016); State v. Simms, 224 N.J. 393, 396-97 (2016). However, in the context of this case, the error was harmless. The remainder of the expert's testimony consisted of unobjectionable explanations about the drug trade and how the various pieces of evidence found in the back bedroom would be used in manufacturing and distributing heroin. Given the quantity of heroin in the room and the overwhelming admissible evidence, this error would not have caused the jury to convict defendant when it otherwise might have acquitted him. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).

         III

         Addressing defendant's Point IV, we agree that the trial court's charge on second-degree unlawful possession of a weapon was fatally flawed. The error was simple. The trial judge[5]forgot to include in the charge an essential element of the offense - that the State had to prove that defendant did not have a permit for the handgun. See N.J.S.A. 2C:39-5(b); Model Jury Charge (Criminal), "Unlawful Possession of a Handgun" (2001). Instead, through oversight, the judge only charged the jury that the State had to prove that defendant knowingly possessed the handgun. At some point, the judge realized the error and remarked to counsel that the charge was wrong, but he did not call the jury back and give them the correct charge. Instead, he allowed them to proceed to a verdict. As a result, defendant's conviction on that charge must be reversed and the matter remanded to the trial court.

         Because the trial court merged the firearm possession conviction with the conviction for drug distribution while in possession of a firearm, it is possible that the State will decide not to retry defendant on the firearm possession charge. Within thirty days of the date of this opinion, the State shall inform the trial court in writing whether it intends to proceed with a retrial on this charge. If the State does not intend to pursue the charge, the trial court shall promptly issue an amended judgment of conviction consistent with this opinion.

         IV

         Next, we address defendant's arguments concerning the State's introduction, at his criminal trial, of the answer he previously filed in the civil forfeiture action. We review a trial court's evidentiary rulings for abuse of discretion, but we review its legal interpretations de novo. See State v. Nantambu, 221 N.J. 390, 402 (2015).

         These are the most pertinent facts, some of which are derived from the trial judge's April 23, 2013 opinion. According to the opinion, on November 9, 2010, the day after defendant's arrest, he appeared in the Central Judicial Processing court "for the arraignment on these charges and setting of bail." Because defendant was determined to be indigent, his case was referred to the Office of the Public Defender (OPD) for assignment of counsel and "a public defender represented the defendant regarding the setting of bail." About a month later, on December 20, 2010, the same prosecutor's office that was conducting the criminal prosecution filed a civil forfeiture action ...


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