Opinion
DOCKET NO. A-5803-08T3 DOCKET NO. A-6017-08T3
02-23-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY PEREZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE ANIBAL MARTINEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Anthony Perez in A-5803-08 (Daniel Brown, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in A- 5803-08 (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Frank M. Gennaro, Designated Counsel, argued the cause for appellant Jose Anibal Martinez in A-6017-08 (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the brief). Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent in A-6017-08 (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Czykier, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
These appeals, calendared back-to-back, are consolidated for purposes of this opinion.
Submitted (A-5803-08) and Argued (A-6017-08)
Before Judges A. A. Rodríguez, Ashrafi and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
08-09-2824.
Joseph E. Krakora, Public Defender, attorney
for appellant Anthony Perez in A-5803-08
(Daniel Brown, Designated Counsel, on the
brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent in A
5803-08 (Stephen A. Pogany, Special Deputy
Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Frank M. Gennaro, Designated Counsel, argued
the cause for appellant Jose Anibal Martinez
in A-6017-08 (Joseph E. Krakora, Public
Defender, attorney; Mr. Gennaro, on the
brief).
Magdalen Czykier, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent in A-6017-08
(Carolyn A. Murray, Acting Essex County
Prosecutor, attorney; Ms. Czykier, of
counsel and on the brief).
PER CURIAM
Defendants Anthony Perez and Jose Anibal Martinez were tried jointly with a third co-defendant, Noel Arocho, and convicted of illegal drug and weapons charges. Perez and Martinez were sentenced, respectively, to eleven and ten years in prison. They appeal, alleging errors in their trial and sentences. We affirm.
I.
In September 2008, an Essex County Grand Jury returned an indictment charging all three defendants in eleven counts: (count one) second-degree conspiracy to violate illegal drug laws, N.J.S.A. 2C:5-2; (count two) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count three) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count four) second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1; (count five) third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); (count six) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count seven) second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1; (count eight) third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and b(3); (count nine) second-degree distribution of heroin within 500 feet of public property, N.J.S.A. 2C:35-7.1; (count ten) second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1; and (count eleven) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b.
The charges were the result of a "buy-bust" investigation by Newark police detectives. At defendants' trial in December 2008, the prosecution presented evidence to prove the following facts. Newark police had received citizens' complaints of drug dealing in an area near a bodega on Summer Avenue. Narcotics detectives conducted an undercover investigation at that location on March 2, 2008. At approximately 8:20 p.m., Detective Hulse went to the area in an undercover capacity supported by a back-up team of four detectives who took concealed positions nearby.
Hulse approached a man in front of the bodega and asked if he knew anyone selling "diesel," a street term for heroin. The man, later identified as co-defendant Arocho, asked Hulse how much he wanted. Hulse responded, "three dimes." Arocho told Hulse to wait and walked to a neighboring house. There, Arocho spoke with two men at the steps, later identified as defendants Perez and Martinez. Arocho and Perez walked back to Hulse, and Perez asked Hulse for money. Hulse gave Perez $30 in "buy money," that is, currency that had previously been identified by recording the serial numbers of the bills.
Perez then signaled to the third man, Martinez, who was still on the steps in front of the nearby house. Martinez reached down and appeared to pick something up, which he put into his pocket. Martinez approached Hulse and gave him three glassine envelopes of heroin. Hulse took the envelopes, walked away, and gave the back-up team a "positive buy" signal.
Once Hulse had left the area, the back-up detectives emerged and arrested the three men. Detective Feliciano searched them and found $79 on Perez, including the $30 of "buy money." Near the steps where Martinez had been seen reaching down, Detective Powell found a revolver and two bags that contained fifty vials of cocaine and five envelopes of heroin. Detective Hulse then drove past the site of the arrests and positively identified the three men as the persons from whom he had just purchased heroin.
The police detectives and a police drug-trafficking expert were the only witnesses at defendants' trial. Defendants elected not to testify. Their attorneys cross-examined the police witnesses and argued to the jury that defendants were victims of mistaken identity. The defense argued that the time gap between Hulse's purchase of the heroin and identification of defendants resulted in the arrest of the wrong persons. Additionally, the defense argued that the police officers were not credible witnesses because of inconsistent details in their police reports. The jury found defendants guilty on all eleven counts of the indictment.
After merging counts, the court sentenced each defendant to five years imprisonment for possession of a controlled substance (the stash of cocaine and heroin) within 500 feet of public property with intent to distribute, N.J.S.A. 2C:35-5 and -7.1 (count four), and five years imprisonment for distribution of a controlled substance (the sale of heroin to Hulse) within 500 feet of public housing, N.J.S.A. 2C:35-5 and -7.1 (count nine). The terms of the two drug counts were to run concurrently with each other. For the unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count eleven), the court sentenced Perez to six years and Martinez to five years imprisonment, both with three years of parole ineligibility. Terms of imprisonment on the gun count were to run consecutively with the sentences on the drug counts. The aggregate sentence imposed on Perez was eleven years in prison with three years of parole ineligibility, and on Martinez, ten years in prison with three years of parole ineligibility. The sentences also included mandatory money penalties as required by statutes.
II.
On appeal, Perez makes the following arguments:
POINT IMartinez raises the following arguments, which track some of the same arguments made by Perez:
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT THE POLICE WERE CONDUCTING A BUY-AND-BUST OPERATION IN THE AREA OF MR. PEREZ'S ARREST IN RESPONSE TO CITIZEN COMPLAINTS AND BY PERMITTING ANOTHER POLICE OFFICER TO TESTIFY THAT HE RESPONDED TO THE AREA DUE TO "INFORMATION RECEIVED" (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
POINT III
PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED MR. PEREZ OF A FAIR TRIAL (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT ERRED IN PERMITTING UNDULY PREJUDICIAL TESTIMONY THAT THE INCIDENT REPORTS IN THIS CASE CONTAINED SUFFICIENT PROBABLE CAUSE TO JUSTIFY MR. PEREZ'S ARREST (NOT RAISED BELOW).
POINT V
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS FOR THE STATE TO IMPROPERLY TESTIFY CONCERNING MR. PEREZ'S POST-ARREST SILENCE (NOT RAISED BELOW).
POINT VI
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
POINT VII
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE AGGRAVATING FACTOR LISTED UNDER N.J.S.A. 2C:44-1a(9) WAS APPLICABLE IN SENTENCING MR. PEREZ (NOT RAISED BELOW).
POINT IWe reject all these arguments.
THE ADMISSION OF HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL.
POINT II
DETECTIVE HOLLOWAY'S EXPERT OPINION USURPED THE ROLE OF THE JURY.
POINT III
THE PROSECUTOR'S COMMENTS DENIED DEFENDANT A FAIR TRIAL.
POINT IV
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
Defendants concede that they did not preserve any of the alleged trial errors that they now raise on appeal by making objections or applications at trial on the same grounds. Therefore, an appellate court will reverse their convictions only if they can show plain error as to the points of trial error. R. 2:10-2. Under the plain error standard of review, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," ibid., that is, if it was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendants must prove that a plain error was clear and obvious and that it affected their substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). Having reviewed the trial record, we find no such plain error in the trial proceedings.
A.
Citing State v. Bankston, 63 N.J. 263 (1973), defendants argue that they were convicted on the basis of hearsay testimony in violation of the Confrontation Clause of the federal and State constitutions and the New Jersey Rules of Evidence. They contend that when the police detectives testified that they conducted the buy-bust investigation because of citizens' complaints, an inadmissible inference was injected into their trial that out-of-court declarants had implicated them in drug trafficking.
Under Bankston, "the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005) (citing Bankston, supra, 63 N.J. at 268-69); see U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; N.J.R.E. 801, 802. The Bankston rule is triggered "[w]hen the logical implication to be drawn from [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt." Bankston, supra, 63 N.J. at 271; see State v. Frisby, 174 N.J. 583, 592-93 (2002); State v. Irving, 114 N.J. 427, 445-46 (1989).
A police witness can testify, however, that he took action "based on information received" as long as the testimony does not lead to an inference that the out-of-court information was specifically about defendant. See State v Vandeweaghe, 177 N.J. 229, 240-41 (2003); Bankston, supra, 63 N.J. at 268; see also State v. Luna, 193 N.J. 202, 217 (2007) ("testimony should be limited in a manner that allows the witnesses to provide appropriate context but not secondhand details about the crime or the defendants").
In State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976), we found no error under Bankston in a police officer's testimony that he went to a specific address because an informant had told him people at that location were selling drugs. The forbidden hearsay inference did not arise where the informant's evidence pointed to a location rather than an individual. Id. at 134; see State v. Roach, 146 N.J. 208, 225 (distinguishing between police testimony about out-of-court information that specifically implicates defendant and that directs the police to a location), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); Irving, supra, 114 N.J. at 447 (citing Long with approval as establishing a valid distinction with the Bankston rule to explain why the police went to a particular location). In Bankston itself, the Court found admissible police testimony that the officer "went to the scene of the crime . . . upon information received." 63 N.J. at 268.
Applying these cases, we find no error in the testimony of police officers at defendants' trial that they decided to investigate an area of Summer Avenue for drug trafficking because of "recent narcotic complaints" or on the basis of "information received." We note in particular that the police testimony implied no knowledge of who was selling drugs near the bodega, only that drugs were being sold there. The reference to citizens' complaints did not identify defendants by inference and thus did not constitute out-of-court statements of non-testifying witnesses implicating them in the crimes.
B.
Defendants argue plain error in testimony of the prosecution's narcotics expert, Detective Holloway. After the prosecutor provided a detailed hypothetical set of facts that mirrored the facts testified to by the investigating detectives, Holloway was asked whether he had an opinion as to the drugs found at the stash site near the steps. He stated: "it's my opinion that subjects A, B, and C possessed the recovered decks of glassine envelopes of heroin with the intent to further distribute for monetary gain." The expert provided identical testimony as to the cocaine at the stash location. Defendants contend this testimony violated N.J.R.E. 704.
In the prosecutor's hypothetical question, the conduct of subjects A, B, and C matched the conduct of Arocho, Perez, and Martinez, respectively, as described in the testimony of the State's police witnesses.
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"The use of expert testimony about the methods employed by drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible under Rule 702 standards because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror." State v. Reeds, 197 N.J. 280, 290 (2009); see also State v. Summers, 176 N.J. 306, 316-17 (2003) (courts presume that the jury is unschooled in the drug trade). In State v. Odom, 116 N.J. 65, 81-82 (1989), the Court established guidelines for the use of hypothetical questions to examine an expert witness in narcotics transactions. Specifically, the Court held that the expert may testify as to whether a quantity of drugs was possessed with the intent to distribute it to others. Id. at 79-80; see State v. Berry, 140 N.J. 280, 297-98 (1995) (N.J.R.E. 704 allows the admission of expert testimony that encompasses ultimate issues, such as, whether a defendant possessed a controlled dangerous substance with the intent to distribute it).
Here, Holloway's testimony was admissible on the issue of whether the stash of cocaine and heroin recovered near the steps was possessed with the intent to sell those drugs to others. Unlike the circumstances in several cases where we found expert testimony to have been improperly admitted, Holloway was not asked to explain that defendants had distributed three glassine envelopes of heroin to Detective Hulse. See, e.g.. State v. Boston, 380 N.J. Super. 487, 490-94 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351, 353-54 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245, 254-57 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Hulse testified as to those facts, and the jury did not need expert testimony to understand the distribution counts of the indictment.
In Odom, supra, 116 N.J. at 82, the Court held that the narcotics expert's testimony should "avoid the precise terminology of the statute defining the criminal offense and its necessary elements," and it must not use defendant's name. The proper method of posing a hypothetical question to a narcotics expert was restated in Reeds, supra, 197 N.J. at 291-92:
The [hypothetical] question must be limited to the facts adduced at trial. The prosecutor may ask the expert to express an opinion, based on those facts, whether the drugs were possessed for distribution or for personal consumption. The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible. Obviously, the expert must walk a fine line. His or her opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," but it cannot contain an explicit statement that "the defendant is guilty of the crime charged under the statute." Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them.In this case, the hypothetical question to Holloway complied with the guidelines established in Odom and Reeds. See also State v. Nesbitt, 185 N.J. 504, 507 (2006); Summers, supra, 176 N.J. at 314-16.
[quoting Summers, supra, 176 N.J. at 314-15.]
Finally, the argument of defendant Martinez that the prosecutor misstated a fact in her hypothetical question, namely, that subject C (Martinez) was found with the pre-recorded buy money, is not sufficient ground to find reversible error. The jury was well aware of the factual testimony and could discern the discrepancy in the hypothetical question. Under the plain error standard, a slight misstatement of the facts included in the hypothetical question does not warrant reversal. Cf. Nesbitt, supra, 185 N.J. at 518-19 (a "poorly phrased hypothetical did not have the capacity to bring about an unjust result").
The Supreme Court recently restated the guidelines for testimony by drug trafficking experts in State v. McLean, 205 N.J. 438, 450-56 (2011). Holloway's testimony did not run afoul of those guidelines. There was no plain error in its admission at defendants' trial.
C.
Defendants contend that the prosecutor made improper remarks during her closing argument. Specifically, they argue that the prosecutor's statements improperly shifted the burden of proof from the State to defendants and infringed on their Fifth Amendment right not to testify. They also argue that the prosecutor improperly made speculative arguments.
In State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001), the Supreme Court summarized the controlling legal standard:
The standard for reversal based upon prosecutorial misconduct . . . requires an evaluation of the severity of the misconduct
and its prejudicial effect on the defendant's right to a fair trial. . . .
To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. . . . In determining whether the prosecutor's comments were sufficiently egregious to deny defendant a fair trial, we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. . . . Specifically, the Court should consider whether defense counsel made a timely and proper objection . . . .
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.
[Internal citations and quotation marks omitted.]
In response to defense arguments of misidentification, the prosecutor in this case argued in summation:
[I]f you look at the time line of what they're arguing, they're arguing that these individuals are not the right people that night because they're all wearing black hoodies. . . . There's no evidence that the people who were arrested are not sitting here today. . . . There's no evidence in this case before you, the people sitting here today are not the people who were arrested that night.Also, using photographs of the Summer Avenue site, the defense had argued that no video evidence of the drug transaction was presented despite video cameras being located nearby. The prosecutor responded:
But what you don't have evidence of is if [the video cameras] were there that day. If these cameras are real cameras. If they were just fake cameras. . . . [Y]ou also don't have evidence if these cameras [were] advanced enough to take clear pictures at night . . . But also remember that you have no evidence that they're working. You have no evidence that they were there that night.
Defendants argue that the prosecutor's comments were "clearly and unmistakably improper and substantially prejudiced [defendants'] right to a fair trial" because they drew attention to the defendants' choice not to testify. The comments, however, were merely responsive to defense arguments. They indicated neither that defendants' failure to testify should be considered by the jury nor that defendants had a burden of presenting evidence to prove their innocence. They did not highlight information that only defendants could have known. Rather, they pointed to the absence of evidential support in the record for defense arguments. Such arguments are appropriate and, in fact, routine at a trial.
We have considered but find insufficient merit to warrant discussion of defendants' further argument that the prosecutor made speculative comments beyond the scope of the evidence. R. 2:11-3(e)(2).
D.
Defendant Perez argues that his privilege against self-incrimination was violated when a police witness testified in a manner that alluded to his post-arrest silence. Detective Faulkner testified that he decided to charge all three persons arrested at the site with weapons offenses because none of them took responsibility for the handgun found near the steps. Perez alleges Faulkner's testimony was an improper reference to defendant's right to remain silent.
In State v. Muhammad, 182 N.J. 551, 565 (2005), the Court stated that a "reference at trial to what a defendant did not say to the police" is a comment on the defendant's silence. Our courts "do not permit a jury to infer guilt from that silence" because the law presumes the suspect is silent while in custody because he is exercising his right against self-incrimination. Id. at 567. The State asserts that Detective Faulkner "merely explained that each defendant was given an opportunity to take sole responsibility for the weapon and spare their confederates the weapons charge," and that the explanation was not a comment about an inference of guilt from post-arrest silence.
Our courts have reversed for prosecutorial comment on post-arrest silence when the prosecutor uses the defendant's silence as substantive evidence of guilt, Muhammad, supra, 182 N.J. at 573, or impeaches a testifying defendant with his silence, State v Lyle, 73 N.J. 403, 408-10 (1977). In Muhammad, supra, 182 N.J. at 573, the prosecutor "repeatedly elicited testimony and made comments on defendant's silence." During opening and closing statements, the prosecutor directly pointed to the defendant's failure to make exculpatory statements to police that would support the defendant's trial theory. Id. at 566. The State violated the defendant's right against self-incrimination because "the prosecutor called for the jury to reject the [defense's theory] because defendant remained silent when he had the opportunity to present it to the police" at the time of his arrest. Ibid.
In Lyle, supra, 73 N.J. at 405, the defendant claimed self-defense in a homicide prosecution. The prosecutor repeatedly questioned the defendant and a detective about the defendant's failure to admit the killing at the time of his arrest. Id. at 406, 408. During summation, the prosecutor argued: "[H]ere is a man who has told you that he killed in self-defense, that [the decedent] came at him with a screwdriver, and yet the policeman who was there within moments . . . of the killing, . . . he doesn't mention anything at all about the screwdriver to him." Id. at 409. The Supreme Court concluded that the State had violated the defendant's right against self-incrimination by attacking the defense's self-defense theory by reference to his post-arrest silence. Id. at 410.
Here, unlike Muhammad and Lyle, the prosecutor did not comment on defendants' silence over the course of the trial in an effort to rebut the defense's trial theory. Rather, the brief questioning of Detective Faulkner about why all three defendants were charged with the gun offense was intended to show the limitations of information available to the police about whose gun it actually was that the police had recovered. The testimony was designed to avoid an improper jury inference that the police knew whose gun they had found and yet unnecessarily charged all three arrested persons.
Although a timely objection to Faulkner's testimony might have resulted in striking the testimony and instructing the jurors not to consider the failure of any defendant to claim responsibility for the gun as evidence of guilt of any other defendant, we conclude the testimony was at most harmless error. Even if one of the defendants had claimed that the gun was his, all three could be charged and convicted of possession of the gun used in conjunction with their sale of illegal drugs. See State v. Spivey, 179 N.J. 229, 236-37, 239 (2004) (constructive possession of a firearm sufficient for conviction under N.J.S.A. 2C:39-4.1); see also State v. El Moghrabi, 341 N.J. Super. 354, 364-68 (App. Div.) (joint constructive possession where passengers were in vehicle containing contraband), certif. denied, 169 N.J. 610 (2001); State v. Zapata, 297 N.J. Super. 160, 177-78 (App. Div. 1997) (joint constructive possession by passengers in vehicle "because no one possessed the narcotics more than any other"), certif. denied, 156 N.J. 405 (1998).
We conclude that there was no plain error "clearly capable of producing an unjust result," R. 2:10-2, in admission of Faulkner's testimony about why the police decided to charge all three defendants with weapons offenses.
E.
Defendant Perez argues that the court erred by permitting Lieutenant Broner, the supervising officer of the buy-bust operation, to testify that there was sufficient probable cause to arrest the defendants. Perez asserts that the testimony should have been excluded under N.J.R.E. 403 because it had no probative value and was unduly prejudicial.
Under N.J.R.E. 403, a judge may exclude relevant evidence if its probative value is substantially outweighed by the risk of undue prejudice. A trial court has broad discretion in the application of N.J.R.E. 403. State v. McGuire, 419 N.J. Super. 88, 135 (App. Div.) (citing State v. Sands, 76 N.J. 127, 144 (1978)), certif. denied, 208 N.J. 335 (2011). On appeal, the standard of review for the trial court's application of N.J.R.E. 403 is normally abuse of discretion if the defendant raises a proper objection. State v. Lykes, 192 N.J. 519, 534 (2007)). Here, defendant must show plain error in Lieutenant Broner's testimony because no objection was made to it at the time of trial.
The defense theory in this case was mistaken identity because of flawed police investigative procedures. The prosecutor's questioning of Broner was probative of the reliability of the buy-bust operation and the resulting arrests. Perez exaggerates the prejudicial impact of Broner's testimony about probable cause. Considering the straightforward evidence the jury heard from Detective Hulse and other police witnesses who observed the scene of the transaction or subsequent recovery of contraband, the jury was not likely to rely on a police witness's conclusions about probable cause to reach its verdict. Also, the court's instructions reminded the jury that the fact charges were brought against defendants was not evidence of their guilt.
We find no reversible error in Lieutenant Broner's testimony about probable cause for the arrests.
III.
Both defendants argue that their sentences are excessive, that the trial court erred in exercising its discretionary authority in imposing sentence.
Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated, (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record, and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365. The test to be applied is "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).
Perez argues that there was no evidence to support the court's finding of aggravating factor nine, the need for deterrence. N.J.S.A. 2C:44-1a(9). Perez's criminal history was not in dispute. The sentencing judge referenced his prior New Jersey probationary sentence and a Rhode Island prison sentence. There was sufficient evidence to support the finding of aggravating factor nine. See, e.g., State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) ("[t]here was . . . reason to believe, in view of defendant's history of drug involvement, that his violations of the law would continue").
Citing State v. Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002), Perez also argues that the sentencing judge erred by finding both aggravating factor nine and mitigating factor eight, "defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(8). In Briggs, the sentencing court's findings of unusual circumstances were sufficiently contradictory to the defendant's involvement in the crime that we questioned whether there was a need to deter the defendant from conduct the court had concluded was an aberration and unlikely to occur again. 349 N.J. Super. at 489-99, 505. This case does not present similar facts.
Martinez asserts that the sentencing court did not have a sufficient factual basis to find aggravating factor three as to him, the likelihood that he would commit offenses in the future. N.J.S.A. 2C:44-1a(3). He also argues that aggravating factor three cannot be reconciled with the court's finding of mitigating factor seven, that he had lived a law-abiding life. N.J.S.A. 2C:44-1b(7). Martinez concedes, however, that he had a prior juvenile adjudication. The sentencing court could consider that adjudication in assessing the likelihood that he would commit future offenses. State v. Tanksley, 245 N.J. Super. 390, 396 (App. Div. 1991).
We also reject Martinez's contention that the court should have found mitigating factor thirteen, N.J.S.A. 2C:44-1b(13), that his conduct as a youthful defendant "was substantially influenced by another person more mature than the defendant." We find no error in the sentencing judge's determination that there was insufficient evidence of a dominant relationship of the other defendants with Martinez.
Finally, we reject the argument of Martinez that the court should have sentenced him in the range for crimes one degree lower pursuant to N.J.S.A. 2C:44-1f(2). The sentences imposed on both defendants were within the court's sentencing discretion. See State v. Bieniek, 200 N.J. 601, 608-09 (2010).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION