Opinion
DOCKET NO. A-5767-11T4
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBINSON DIONICIO, Defendant-Appellant.
Joel C. Seltzer, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2248. Joel C. Seltzer, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from convictions for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); and second-degree possession with intent to distribute CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Four). We affirm.
The jury acquitted defendant on the charge of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One).
In April 2009, a confidential informant (the "CI") told Detective James Bradley that a man nicknamed "Robbie" would be delivering drugs the following day in the Newark and Elizabeth area. The CI described Robbie as a Hispanic male, approximately five feet seven inches to five feet eight inches tall, and one hundred ninety to two hundred pounds. The CI provided Robbie's home address and the license plate number of a blue Nissan Maxima (the "Maxima") that Robbie would be driving to a "stash location," a third floor Newark apartment. He indicated that Robbie would make a delivery near a supermarket in Newark, between 10:00 a.m. and 12:00 p.m.
The next day, undercover detectives conducted surveillance of Robbie's alleged residence. At approximately 9:00 a.m., they observed a man, who Detective Bradley identified as defendant, exit the residence with a woman and drive away in a green Ford Explorer. Approximately thirty minutes later, defendant returned and drove to the Newark apartment in the Maxima with the same license plate number that the CI had provided. There, defendant entered the building via an exterior staircase onto the third floor. Five to ten minutes later, defendant returned to the Maxima, drove to a building in Elizabeth, stayed there for approximately five minutes, and then returned to the Newark apartment and went inside.
About fifteen minutes later, defendant drove to the supermarket parking lot in the Maxima, where detectives in a marked police vehicle stopped him. Detective Gino Izzo walked around the rear of the Maxima, towards the passenger side, and observed defendant reaching as if he was trying to place something under the rear seat. Detective Izzo testified that he observed green cellophane on the back passenger-side floor of the Maxima, retrieved it, and saw that it contained "three rocks in separate bags inside the green cellophane of suspected cocaine." The weight of the green cellophane package was approximately thirteen grams, less than one-half ounce. The police then arrested defendant.
The detectives then traveled to the Newark apartment to "secure the location for a search warrant," avoid the destruction of evidence, and to protect officer safety. The detectives knocked and announced their presence, did not receive any response, and then used defendant's key to enter the apartment. They were in the apartment for approximately one and one-half minutes. They checked to ensure that no one was in the apartment, exited, locked the door, and posted two detectives outside the apartment to guard the door. The detectives then obtained a search warrant for the apartment, searched it, and recovered a bag containing approximately sixteen ounces (454 grams) of cocaine, as well as drug paraphernalia and a ledger. The ledger appeared to have the name "Robinson" on the front inner cover.
The detectives searched the Maxima after obtaining a warrant. They found a "trap" behind the front passenger seat also containing a total of 452 grams of cocaine. Defendant filed a motion to suppress the cocaine seized from the Maxima. The judge conducted a hearing and found the State's witnesses to be "highly credible and reliable." The judge further found that the detectives had reasonable suspicion to conduct an investigatory stop of the Maxima, and that the police properly seized the cellophane-wrapped CDS from the back floor of the Maxima pursuant to the plain view exception of the Fourth Amendment.
Defendant was tried before a jury for four days in October and November 2010. At trial, the State produced testimony from Maria Fazio-Zanakis, an expert in the field of chemistry and narcotics, who testified that she conducted the laboratory tests of the CDS. She tested a sample of the substance recovered from the apartment, and it tested positive for cocaine. Sergeant Vito D'Alessio, supervisor of the investigation, testified that he observed detectives field test samples of the suspected CDS, and all of them tested positive for cocaine. At the close of testimony, defense counsel moved to preclude from evidence the suspected CDS samples that were not tested. The judge denied the motion.
On November 8, 2010, defendant filed a motion for a judgment of acquittal or a new trial, arguing that the jury found him guilty of possession of only the thirteen grams recovered from the back floor of the Maxima, and that the State did not establish that the substance was cocaine. The judge denied the motion and sentenced defendant to a nine-year term of imprisonment with four years and six months of parole ineligibility.
On appeal, defendant argues the following points:
POINT ONE
[THE] JURY VERDICT MUST BE REVERSED WHERE INSUFFICIENT EVIDENCE WAS PRESENTED AS TO THE CONTENT OF THE COCAINE SEIZED FROM TWO DIFFERENT LOCATIONS AND WHERE THE ONE SAMPLE ACTUALLY TESTED [POSITIVE] FOR COCAINE RESULTED IN A DISMISSAL OF THE POSSESSION CHARGE AGAINST THE DEFENDANT.
POINT TWO
[THE] STATE'S FAILURE TO PROVE THAT CDS COCAINE WAS SEIZED FROM THE DEFENDANT'S CAR VOIDS THE JURY VERDICT AND DEPRIVED HIM OF DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION.
POINT THREE
THE FAILURE OF THE STATE TO QUALIFY SGT. D'ALESSIO AS AN EXPERT OR HAVE DETECTIVE MENDEZ TESTIFY REGARDING THE FIELD TEST PERFORMED ON THE EVIDENCE SEIZED FROM THE DEFENDANT'S CAR DEPRIVED THE DEFENDANT OF DUE PROCESS AND FURTHER VIOLATED HIS RIGHTS TO CONFRONTATION UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.
POINT FOUR
ALL EVIDENCE SEIZED [FROM] THE DEFENDANT'S CAR WAS SEIZED IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ART. 1 PAR. 7 REQUIRING SUPPRESSION THEREOF.
I.
We begin by addressing defendant's contention that the judge erred by denying his motion for a new trial. He argues primarily that the State produced insufficient evidence of guilt. Defendant also maintains that we should reverse his convictions because the jury returned an inconsistent verdict acquitting him on Count One, but guilty on all other Counts.
At the outset, we note that "[o]ur system of justice has long accepted inconsistent verdicts as beyond the purview of correction by our courts, and therefore a defendant is forbidden from collaterally attacking a guilty verdict on one count with an apparently irreconcilable acquittal on another count." State v. Kelly, 201 N.J. 471, 487 (2010). "'Each count in an indictment is regarded as if it was a separate indictment.'" State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting State v. Banko, 182 N.J. 44, 53 (2004) (citations omitted)). And courts should not speculate as to the jury's reasoning: "Our jurisprudence does not allow us to conjecture regarding the nature of the deliberations in the jury room." Ibid. Appellate courts should not consider whether the verdict "resulted from jury lenity, mistake, or compromise." Ibid.
We therefore consider defendant's contention that the State produced insufficient evidence of guilt on Counts Two, Three, and Four. We do not reverse a trial court's denial of a motion for a new trial, based on a verdict that is against the weight of the evidence, "'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Perez, 177 N.J. 540, 555 (2003) (quoting R. 2:10-1). We must consider the totality of the evidence in the light most favorable to the State. Id. at 549.
Here, the CDS in the back of the car was wrapped in green cellophane and there was green cellophane on the kitchen table in the apartment where the tested CDS was found. Defendant was in the apartment twice that morning, had the key to the apartment, and was driving the car in which additional suspected CDS was found in a trap. The detectives saw defendant reaching toward the back of the passenger seat of the car, where the trap was located. It also appeared that defendant's name was in the ledger found in the apartment. We therefore conclude that it does not clearly appear that there was a miscarriage of justice.
II.
A.
We reject defendant's argument that the trial court erred by allowing Sergeant D'Alessio to testify about the field test because the Sergeant was qualified as an expert in narcotics distribution and not in the chemical analysis of CDS.
On appeal, we do not disturb a trial judge's decision on an expert's qualifications unless there was a clear abuse of discretion, State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied, 127 N.J. 321 (1990), and reversal is necessary to prevent "'manifest error and injustice.'" State v. Jenewicz, 193 N.J. 440, 455 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." An expert must "be suitably qualified and possessed of sufficient specialized knowledge to be able to express such an opinion and to explain the basis of that opinion." State v. Odom, 116 N.J. 65, 71 (1989) .
Here, Sergeant D'Alessio testified to his training and experience identifying narcotics. The assistant prosecutor requested that the judge qualify him as an expert in narcotics identification, to which defense counsel did not object, and we see no clear abuse of discretion in such qualification.
B.
We also reject defendant's contention that his Sixth Amendment right to confront his accuser was violated because the individual who conducted the field test did not testify.
Under the Sixth Amendment to the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . to be confronted with the witnesses against him." U.S. Const. amend. VI. "Testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004). Laboratory certifications constitute out-of-court testimonial statements to which the Confrontation Clause applies. Bullcoming v. New Mexico, 564 U.S. ___, ____, 131 S. Ct. 2705, ___, 180 L. Ed. 2d 610, 623-24 (2011).
In State v. Roach, 219 N.J. 58, 61 (2014), the Supreme Court held that "a defendant's federal and state confrontation rights are satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of testing data and processes, rather than merely read from or vouch for another analyst's report or conclusions." In a companion case, State v. Michaels, 219 N.J. 1, 6 (2014), the Court held that a laboratory report was admissible through the testimony of the author, a laboratory supervisor who reviewed and made independent conclusions about the test results but who did not conduct the testing procedures. This case differs from Michaels because the State did not seek to admit any laboratory report, and it differs from both Michaels and Roach because here the testifying witness actually observed the testing procedures.
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Here, there was no out-of-court statement as the State did not seek to admit a lab certification into evidence. Instead, Sergeant D'Alessio testified about his own conclusions, reached based on his observations of a detective conducting the field test. Therefore, there was no Sixth Amendment violation because defendant had the opportunity to confront Sergeant D'Alessio.
III.
Defendant argues that the search of the Maxima violated the Fourth Amendment and therefore the judge should have suppressed all of the evidence seized from it. When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ____ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
A.
Warrantless searches and seizures are presumptively invalid under Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution. See State v. Bruzzese, 94 N.J. 210, 216-18 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Automobile stops constitute seizures of persons under the Fourth Amendment. State v. Baum, 199 N.J. 407, 423 (2009).
An investigatory stop occurs when "a reasonable person would have believed that he [or she] was not free to leave." State v. Shaw, 213 N.J. 398, 410 (2012) (citations and internal quotation marks omitted). An investigatory stop is an exception to the warrant requirement when an officer stops an individual "'based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 20 (2004) (citations omitted)). The officer must have a "particularized suspicion based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing," considering the totality of circumstances. State v. Davis, 104 N.J. 490, 504 (1986) (internal quotations marks omitted). An anonymous tip may be sufficient to support a reasonable suspicion "when there has been 'independent corroboration by the police of significant aspects of the informer's predictions[.]'" State v. Rodriguez, 172 N.J. 117, 127-28 (2002) (alteration in original) (quoting Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990)).
Here, the stop was an investigatory stop. The detectives pulled defendant over using a marked police vehicle with the lights and sirens on. A reasonable person would feel that his or her right to move was restricted. There was also a reasonable suspicion of criminal activity. The detectives received a tip from a CI who was not anonymous and had provided reliable information in the past. The tip included a detailed description of defendant's appearance, the license plate, make, model, and color of the car he used, the address and floor of the apartment in Newark, and the time and approximate location of the supermarket where defendant allegedly planned to conduct a narcotics transaction. The detectives, through their surveillance, independently corroborated the significant aspects of the CI's predictions.
B.
Defendant argues that Detective Izzo improperly seized the cellophane-wrapped CDS because the automobile exception to the warrant requirement did not apply, but does not address whether the plain view exception applies. Regardless of whether the automobile exception applies, we conclude that the CDS was seized properly under the plain view exception.
The plain view exception applies when (1) the officer is lawfully in the viewing area; (2) the officer discovers evidence "inadvertently," without knowing "in advance where evidence was located nor intend[ing] beforehand to seize it"; and (3) it is "immediately apparent to the officer that items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citations and internal quotation marks omitted). "A simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (quoting Texas v. Brown, 460 U.S. 730, 739-40, 102 S. Ct. 1535, 1541-42, 75 L. Ed. 2d 502, 512 (1983)). Also, inadvertent discovery is not required when officers observe an object in plain view without any intrusion. Id. at 216.
Under the first prong of the analysis, as discussed supra, the investigatory stop was lawful. Additionally, the trial judge made a factual finding that Detective Izzo "peered" into the car and observed the cellophane-wrapped suspected cocaine. We conclude that there is sufficient credible evidence for this finding and therefore, Detective Izzo was lawfully in the viewing area. Because there was no intrusion, a finding of inadvertent discovery is not required.
Under the third prong of the analysis, the officer must have probable cause to associate the item with criminal activity before seizing the item, meaning that "'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Johnson, supra, 171 N.J. at 214 (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991) (citations omitted)).
At the time Detective Izzo seized the cellophane-wrapped CDS, he knew about the detailed information provided by the CI, had independently corroborated the CI's tip, observed defendant reaching behind the passenger's seat, possibly to hide something, and knew that cellophane is often used to package CDS. Under these circumstances, there was probable cause to associate the item with criminal activity. Therefore, the detectives properly seized the item under the plain view exception and the trial judge properly denied defendant's motion to suppress.
After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION