STATE OF NEW JERSEY v. ROBERTO PESANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2215-03T42215-03T4

A-3743-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERTO PESANTE,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MADELINE C. ROMAN,

Defendant-Appellant.

____________________________________

 

Submitted November 2, 2005 - Decided March 23, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Passaic County,

01-04-0326-I.

Yvonne Smith Segars, Public Defender,

attorney for appellants (Mary M. Theroux,

Designated Counsel, on the brief in A-2215-03T4;

Adam W. Toraya, Designated Counsel, on the

brief in A-3743-03T4).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondents (Terry

Bogorad, Senior Assistant Prosecutor, of

counsel and on the brief in A-2215-03T4;

Christopher W. Hsieh, Senior Assistant

Prosecutor, of counsel and on the brief in

A-3743-03T4).

PER CURIAM

Defendants Roberto Pesante and Madeline C. Roman were tried together. We have consolidated their separate appeals in this opinion. The jury found both defendants guilty on all four counts of the indictment, which charged each of them as both principal and accomplice, based upon the same events. Defendants were convicted of fourth-degree possession of a controlled dangerous substance (CDS), marijuana, N.J.S.A. 2C:35-10a(3) and N.J.S.A. 2C:2-6 (count one); third-degree possession of CDS, marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11), and N.J.S.A. 2C:2-6 (count two); third-degree possession of CDS, marijuana, with intent to distribute, within 1,000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6 (count three); and third-degree possession of CDS, marijuana, with intent to distribute, within 500 feet of a public park, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a, and N.J.S.A. 2C:2-6.

The State's motion to sentence Pesante to a mandatory extended term as a repeat offender pursuant to N.J.S.A. 2C:43-6f was granted. Counts one, two, and four were merged with count three. Pesante received a seven-year state prison sentence with a mandatory three-and-one-half-year parole ineligibility term on count three.

The judge merged Roman's convictions on counts one, two, and three with count four, and sentenced her to a three-year state prison term, with a mandatory parole ineligibility term of three years.

These are the facts established by the evidence at trial. On August 29, 2000, Police Officer Joseph Loconte was in a marked police car patrolling the southeast sector of the city of Passaic. His partner, Officer Ralph Ortiz, was with him. At about 9:20 p.m., Loconte parked the police car on the Route 21 overpass and began surveillance of the area in front of buildings at 75 and 77 Hope Avenue, using his personal binoculars. He chose that area because it was a "known high drug trafficking area." The overpass was between sixty and one hundred feet away from 75 and 77 Hope Avenue and was elevated about thirty feet above that street.

When he began the surveillance, Loconte saw Pesante and Roman standing in front of the apartment building at 75 Hope Avenue. Within a short time a car pulled over, and a man got out and walked over to Pesante. After briefly talking to the man, Pesante walked over to a gas valve that was located "right in front of 77 Hope Ave . . . on the sidewalk right on the curb." He removed the lid and pulled out a bag of suspected CDS, then he "walked a few feet and he threw the bag into the street near the curb area" of 77 Hope Avenue. The man walked over to the bag, picked it up, put it in the pocket of his pants, walked over to Pesante, gave Pesante money, walked back to his car, and left. Pesante then counted the money and put it in his pants' pocket.

A few minutes later Loconte saw another car pull over in front of defendants. The driver got out and approached Pesante. Once again, Pesante walked over to the gas valve, removed the lid, retrieved another bag of suspected CDS, and put the lid back on. He walked over to the man and gave him the bag. The man gave Pesante money, got back into the car, and drove off.

Shortly after that, Loconte saw Pesante get on a bicycle and ride off. Roman, along with another woman and man whom Loconte had observed on the sidewalk with defendants, remained in front of 75 Hope Avenue.

While Pesante was gone, Loconte saw two men approach Roman together. After briefly conversing with the men, Roman walked over to the same gas valve, opened the lid, retrieved another bag of suspected CDS, put the lid back on, walked over to the men and gave the bag to one of them. He gave her money, which she put down her shirt.

Roman then went back to the gas valve, opened the lid, retrieved "several baggies," put the lid back on, looked around, walked into the street and picked up a crushed McDonald's cup that was lying in the street. She pulled the cup open, put the bags inside, started to walk back towards 75 Hope Avenue, and threw the cup onto the sidewalk near the curb in front of 75 Hope Avenue.

Shortly thereafter, Pesante returned on his bike. He stopped in front of 77 Hope Avenue, got off the bike, looked around, walked over to the gas valve, opened the lid, pulled two plastic bags from the front of his pants, put the bags in the gas valve, and put the lid back on. He then walked over to Roman and the two of them went inside the apartment building at 75 Hope Avenue.

Four or five minutes later, Loconte saw defendants come out of the apartment building. A short time later a car pulled over in front of them and a man got out and approached Roman. Roman retrieved a bag from the McDonald's cup and gave it to the man, who gave her money. Loconte did not see what she did with the money. The man got back into the car and drove away.

Loconte then radioed for back-up. Officer Milzowski responded to his call. Loconte gave him a description of defendants and told him where they were standing. Shortly thereafter Loconte saw Milzowski's marked police car approach defendants.

Loconte testified that just as the police car turned onto Hope Avenue, he "overheard Roman state 5-0 twice to Mr. Pesante" and that "5-0" is "a street term for police." He then saw defendants walking north on Hope Avenue, starting to leave the area. Milzowski pulled over and detained Pesante, Roman and the woman who was standing with them. After briefly detaining the second woman, Milzowski released her without placing her under arrest. The record is silent as to what happened to the man who was also standing with them.

Once Loconte saw Milzowski detain defendants and the woman, Loconte drove to the area and went to the gas valve. From it he removed two Ziploc bags that were "like the size of a lunch bag." Together they contained fifty-six small, clear bags of suspected marijuana that was distributed "fairly evenly" among the bags. Under the two large Ziploc bags were three clear, little bags that were empty. All three had a picture of the Star Trek Enterprise Spaceship stamped on them.

Loconte then walked over to the McDonald's cup and took from it "[t]wo black bags and another clear" bag of suspected marijuana. Like the three clear empty bags that Loconte had seized from the gas valve, the clear bag had a picture of the Star Trek Enterprise Spaceship stamped on it.

After arresting Pesante and Roman, Milzowski transported them to the police station, where they were searched. No drugs or money were found on either of them.

The police then sent the bags to the lab for testing. The lab results showed that collectively, the bags contained a total of 2.02 ounces of marijuana.

On his appeal, Pesante presents the following arguments:

POINT I

THE VERDICT OF THE JURY IN THE EXTANT CASE WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, AND FAILURE TO MAKE THE APPROPRIATE MOTION CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR IN CHARGING ACCOMPLICE LIABILITY IN THE ABSENCE OF AN UNDERLYING FACTUAL BASIS AND COMPOUNDED SAME BY A SUBSEQUENT ERRONEOUS CHARGE REGARDING SAME.

POINT III

THE TRIAL COURT'S REFUSAL TO ENTERTAIN DEFENDANTS [sic] CHALLENGE OF THE PROSECUTION'S APPEARANCE OF IMPROPRIETY WAS PLAIN ERROR.

POINT IV

THE FAILURE OF DEFENDANT'S COUNSEL TO MOVE TO SEVER THE TRIAL OF CO-DEFENDANTS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

On her appeal, Roman presents the following arguments:

POINT I

THE TRIAL JUDGE ERRED WHEN HE FAILED TO GIVE A "NO ACCOMPLICE LIABILITY" CHARGE TO THE JURY EVEN THOUGH THERE WAS NO INDICATION THAT THE DEFENDANTS WERE ACTING IN CONCERT.

POINT II

THE TRIAL JUDGE ERRED WHEN HE FAILED TO GIVE A CHARGE TO THE JURY TO DISREGARD COMMENTS MADE BY THE STATE DURING SUMMATIONS AS MERE SPECULATION.

POINT III

THE DEFENDANT WAS DENIED HER SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE WHEN HER TRIAL ATTORNEY FAILED TO RAISE ANY PRETRIAL MOTIONS.

POINT IV

THE TRIAL JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO RECHARGE THE JURY AFTER DEFENSE COUNSEL REVEALED ERRORS MADE DURING THE CHARGE.

POINT V

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).

We have carefully considered the record in light of the contentions of each defendant, and we are satisfied that none of the arguments presented is of sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We therefore affirm, adding only these brief comments.

Defendants raise essentially the same arguments respecting errors in and the propriety of accomplice liability instructions; the sufficiency of the evidence to support accomplice liability; and ineffective assistance of counsel for failure to move to sever their trials and failure to move for a new trial.

I

There is no question that the evidence was legally and factually sufficient to support accomplice liability. See State v. Gelb, 212 N.J. Super. 582, 591-92 (App. Div. 1986) ("Concerted action need not be proved by direct evidence of a formal plan to commit a crime, . . . [r]ather the proof may be circumstantial and participation and acquiescence may be inferred from conduct. . . ."), certif. denied, 107 N.J. 633 (1987); State v. Newell, 152 N.J. Super. 460, 469 (App. Div. 1977):

Although mere presence at or near the scene of the crime, or the failure to intervene, does not make one a participant in the crime, presence at the commission of a crime without disapproving or opposing it is evidence which, in connection with other circumstances, permits the inference that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.

[Ibid.]

The simple fact is that the evidence was overwhelming once the jury believed Officer Loconte's testimony. It was also overwhelmingly clear that defendants were acting in concert, exposing each of them to liability both as principals and as accomplices to the other. They shared the same stash; they stood next to each other as each conducted separate transactions; the "brand" markings on all of the bags found in the stash and in the McDonald's cup were identical; they entered the building near the gas pipe stash together and came out together within a few minutes; and as police approached, they attempted to leave the scene together. Thus the evidence demonstrated that defendants not only acquiesced in each other's conduct, but that they helped each other in the enterprise.

It is plain that the evidence was sufficient to support the charges and the verdicts against each defendant, both as principals and as accomplices. Thus either counsel's failure to move for a new trial cannot be ineffective assistance. Because the evidence against each defendant was largely the same, and because all evidence would have been admissible against each as an accomplice, there was no basis for severance. Failure to move to sever therefore cannot be ineffective assistance. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United State v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42 (1987).

II

Because proper jury instructions are essential to a fair trial, "[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Green, 312 N.J. Super. 456, 461 (App. Div.), certif. denied, 156 N.J. 425 (1998). Nonetheless, an appellate court will find an error harmless if, in examining the charge as a whole, it concludes that the error did not confuse or mislead the jury. State v. Gartland, 149 N.J. 456, 473 (1997).

We agree that the trial judge misspoke in certain respects while charging the jury respecting defendants' liability; but we are satisfied, considering the charge as a whole, that there is no likelihood that the jury was confused by the instructions, and that the jurors were clearly instructed to consider the evidence against each defendant individually on each charge.

Defendants contend that the court erred in using the language "either defendant," instead of "a defendant," in the accomplice charge. In fact, the judge actually used that language only in the initial instructions on counts one and two. The court instructed the jury that the elements of count one, possession of marijuana, were as follows:

one, that S-7 in evidence is marijuana; two, that either of the Defendants possessed or obtained S-7 in evidence; three, that the Defendants acted knowingly or purposely in possession [sic] or obtaining S-7 in evidence.

[Emphasis added.]

On count two, possession with intent to distribute, the court instructed that the elements were:

one, S-7 in evidence is marijuana; two, that either either Defendant possessed or had under their control S-7 in evidence; three, the Defendant when they possessed or had under their control S-7 in evidence had the intent to distribute S-7 in evidence; four, that the Defendant acted knowingly or purposely in possessing or having under their control with intent to distribute S-7 in evidence.

[Emphasis added.]

After completing the entire charge, the court asked if either party had any applications or motions to make. Pesante's counsel answered "No." Roman's counsel said that he had "something to put on the record but nothing that needs to interrupt these proceedings right now."

After the jury left the courtroom, Roman's counsel informed the court that it incorrectly said "either defendant" instead of "a defendant" in charging on counts one and two, but that he thought the error was "very, very minor." Said counsel: "And . . . I think you did it because we knew that there was going to be the accomplice charge . . . ." The court answered "Yeah. . . . I did it because I wanted to make sure that they they wouldn't automatically hold both Defendants accountable for one without considering the accomplice charge."

Roman's counsel said that he understood the court's rationale and that he did not seek "any type of recharge or corrective instruction." Rather, he wanted only to place the error on the record so that if the jury requested a recharge, the court would give it correctly. The court asked Pesante's counsel if he agreed that there was no need for a recharge, and he apparently answered yes.

On appeal, Pesante contends that the court committed plain error in saying "either defendant" instead of "a defendant," because that language "contained a distinct possibility of resulting in a conviction based upon a misunderstanding of applicable law."

We disagree. The correct charge would have been "as to each defendant, he or she . . . ." But the court's charge, considered as a whole, was not likely to confuse or mislead the jury. As Roman's counsel noted below, the court correctly summarized the elements of counts one and two, despite the earlier error:

Then to reiterate, the three elements of [count one] are that: one, S-7 in evidence is marijuana; two, that a Defendant possessed or obtained S-7 in evidence; and, three, that the Defendant acted knowingly or purposely in possessing or obtaining S-7 in evidence.

. . .

So to reiterate, the four elements of [count two] are as follows: one, that S-7 in evidence is marijuana; two, that a Defendant possessed or had under his or her control S-7 in evidence; three, that the Defendant had the intent to distribute S-7 in evidence; four, that a Defendant acted knowingly or purposely in possessing or having under his or her control within [sic] intent to distribute S-7 in evidence.

[Emphasis added.]

Thus any possible misunderstanding arising from the earlier use of the words "either defendant" surely was dispelled by the court's summary.

Further, the court correctly charged the jury on counts three and four, both of which were the more serious possession-with-intent-to-distribute offenses. The court's instruction on "possession" eliminated any reasonable likelihood that the court's error misled the jury:

The word, possess, possess, as used in criminal statute [sic], signifies a knowing, intentional control of a designated thing accompanied by knowledge of its character. Thus, the person must know or be aware that he or she possesses the item, in this case, marijuana and he or she must know what it is that he or she possesses or controls; that [it is] marijuana. In other words, to possess within the meaning of the law, a Defendant must knowingly procure or receive the item possessed or be aware of their control for a sufficient period of time to have been able to relinquish the control, if they chose to do so.

The court went on to instruct correctly on both actual and constructive possession, as well as sole and joint possession.

The court also instructed the jury that the four charges against each defendant were separate offenses and that "[e]ach Defendant is entitled to have his and her guilt or innocence separately considered on each count by the evidence which is relevant and material to that particular charge. . . ."

You must also return separate verdicts for each Defendant as to each of the charges being tried. In other words, you will have to decide each case individually. Whether the verdicts as to each Defendant are the same depends on the evidence and your determination as to judges [sic] of the facts.

Finally, the verdict sheets recited each of the charges and separated them as to the marijuana Loconte seized from the gas valve and the marijuana that he seized from the McDonald's cup. Thus the jury clearly considered separately whether each defendant possessed the marijuana that was in the gas valve and the marijuana that was in the McDonald's cup, consistent with correct instructions on the several forms of possession.

Defendant Roman contends that it was error for the judge to refuse to instruct the jury to ignore as speculation certain remarks by the prosecutor in summation. After discussing the four sales that Pesante and Roman made, the prosecutor urged that Roman could have discarded the money from the last sale before the police arrived:

He [Loconte] was watching Mr. Pesante. He was watching Ms. Roman. They were walking. She had ample opportunity to get rid of the money she just received in that last transaction. She could have thrown it to the ground. She could have handed it to the other woman. But she had enough opportunity to get rid of it. And that's just what happened, I submit to you. She was able to get rid of the money she received on that last transaction.

After both parties finished summations and the jury left for lunch, Pesante's counsel objected to the foregoing comment by the prosecutor, and Roman's counsel joined in that objection. Defendants argued that there was no evidence that Roman disposed of the money from the last sale or that she even had an opportunity to do so. Thus, they argued, the prosecutor's comment was nothing more than speculation.

The prosecutor countered that his comment referred to a reasonable inference that the jury could draw from the evidence. As the judge noted, Loconte testified that after he called for backup to arrest defendants, he was not watching Roman at all times. When he looked away to watch Pesante and to watch for backup to arrive, Roman was out of his view. Thus the jury could infer that while Loconte was not watching her, she discarded the money. The judge therefore rejected the request for a limiting instruction on the comment.

On appeal, Roman argues that contrary to establishing that she discarded the money, the evidence showed that the police found no money or drugs on her. As the State contends, the fact that the police found no any money on her person is also consistent with an inference that she discarded the money. Because the comment was a reasonable inference that could be drawn from the evidence, it was not improper speculation.

Finally, Roman challenges the court's misstatement in its charge on accomplice liability respecting the fourth count. In its accomplice liability charge, the court reiterated the four crimes with which defendants were charged. It described the charge as "Possession of a controlled dangerous substance within 500 feet of a public park," instead of "possession of a controlled dangerous substance with intent to distribute within 500 feet of a public park." Roman's trial counsel also stated that this error was "very, very minor" and did not request a recharge.

Roman now contends that the court should have recharged the jury "as a matter of course" after trial counsel noted the error. We conclude that the error was harmless, in light of the fact that in summarizing the accomplice charge, as well as in charging on count four, the judge correctly included the "with the intent to distribute" language, and correctly instructed the jury that an element of that crime was the intent to distribute. Moreover, that essential element was accurately set forth on the verdict sheet.

The several noted errors in the charges therefore were harmless.

Defendant Pesante belatedly raised an alleged appearance of impropriety. After the trial, he complained that an attorney who had represented him at a pre-indictment conference was a cousin of the trial prosecutor. The prosecutor admitted the relationship, but denied that the two shared any information about Pesante, and Pesante offered no evidence of any actual breach of confidentiality.

 
Affirmed in all respects as to both defendants.

The record states that Pesante's counsel's answer was indiscernible, but moments later the court said that it agreed with "all of you" that a recharge was not needed.

(continued)

(continued)

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A-2215-03T4

March 23, 2006