STATE OF NEW JERSEY v. RUBEN SANABRIA



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5375-04T45375-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUBEN SANABRIA,

Defendant-Appellant.

_____________________________________________________________


Submitted June 1, 2006 - Decided June 30, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Ind. No.

0668-04-2004.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Hegge & Confusione,

attorneys; Michael Confusione, Designated

Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Kristen Brewer,

Assistant Prosecutor, on the brief).

PER CURIAM

In a five-count indictment (Hudson County indictment number 0668-04-2004), defendant Ruben Sanabria was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); and third-degree distribution of cocaine within a school zone, N.J.S.A. 2C:35-7 (count five). The jury found defendant guilty on all counts.

At sentencing, the court merged counts one and two into count three, and count four was merged into count five. Because he was a repeat drug offender, defendant was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and he was sentenced to six years of imprisonment with three years of parole ineligibility on count three (third-degree possession of cocaine with intent to distribute within a school zone), and an identical concurrent sentence for count five (third-degree distribution of CDS within a school zone).

The court found no mitigating factors, and it cited to three aggravating factors: the risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); defendant's prior convictions for third-degree distribution of a controlled dangerous substance within a school zone on June 28, 1997 (count five of indictment number 1575-10-97), third-degree possession of cocaine with intent to distribute within a school zone on June 29, 2000 (count three of indictment number 2222-11-00), and third-degree possession of cocaine with intent to distribute within a school zone on September 12, 2000 (count three of indictment number 2379-12-00), N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9).

Defendant had received probationary sentences in connection with each of his three prior third-degree convictions, and, as a result of the jury's verdict, his probationary sentences were revoked, and he was resentenced on each of the violations of probation. The court sentenced defendant to a five-year term with two and a half years of parole ineligibility. The court again cited aggravating factors (3), (6), and (9) for each of these sentences, which were concurrent with the sentence imposed as a result of the jury verdict. The trial court explained its reasons for the violation of probation sentences as follows: "Mr. Sanabria unfortunately has shown himself at this point to be undeserving of a mitigating factor nine or ten, or in fact, any of the other mitigating factors that are indicated in the law."

On appeal, defendant makes the following arguments:

POINT I

A PREJUDICIAL COMMENT BY THE STATE'S WITNESS DENIED DEFENDANT A FAIR TRIAL

POINT II

THE TRIAL COURT ERRED IN ADMITTING IMPROPER PHOTOGRAPHS OF THE BUILDING AT ISSUE

POINT III

THERE WAS INSUFFICIENT PROOF TO SUSTAIN DEFENDANT'S CONVICTIONS FOR DISTRIBUTION AND INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE (Plain Error)

POINT IV

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT (Plain Error)

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE

POINT VI

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE

After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm defendant's conviction but remand for resentencing.

Defendant was arrested on the ground floor inside a rooming house at 191 Academy Street in Jersey City on January 21, 2004, as a result of a narcotics surveillance operation. Detective James Wilde of the Jersey City Police Department, who was in charge of the surveillance operation, testified that when he began the surveillance operation at about 5:30 p.m., he was located inside a parked SUV in the Jersey City Municipal Court parking lot. This lot is approximately fifty to sixty feet away from the rooming house located at 191 Academy Street.

Although it was dark, Wilde indicated there was sufficient artificial light from the lamp posts near the SUV and outside the residence at 191 Academy Street, as well as from the lights inside the residence, for him to conduct the surveillance. At about 6:15 p.m., he observed a white male who was subsequently identified as Brian Vaxmonsky, approach the rooming house wearing a "gray jacket, brown pants, work boots and gray gloves." Vaxmonsky stood just in front of the main entrance of 191 Academy Street and yelled up to the second floor window. After Vaxmonsky yelled up, a second man opened the window, leaned out, and began to have some sort of a conversation with Vaxmonsky, who was still on the street below. Detective Wilde did not hear what the two men said, but he noticed that the man in the window was a "Hispanic male" wearing "a black hat and gray shirt." This man was later identified as the defendant.

Wilde testified that when defendant appeared at the front door to 191 Academy Street, about a minute later, he was wearing jeans and white sneakers. Wilde observed defendant stand in the doorway, with the door propped open with part of his body while he spoke with Vaxmonsky, who was in the street outside of the building. Wilde testified that he saw Vaxmonsky hand "green currency to the Hispanic male wearing the black hat and gray shirt." In exchange, the Hispanic male handed Vaxmonsky "a small object," which he then placed in his right glove. Following this exchange, defendant went back into the rooming house, and Detective Wilde radioed Vaxmonsky's description and direction of travel to "perimeter units." Within minutes, Vaxmonsky was apprehended and searched. The police found three glassine vials with purple tops inside his right glove. These vials were later determined to contain cocaine, a fact that both parties stipulated to at trial.

After Vaxmonsky was arrested, a decision was made to enter the rooming house to arrest the suspected narcotics seller. Detective Wilde and Detective Alex Bermudez were among the group of undercover and uniformed police that entered the rooming house. As Detective Wilde entered the building, he recognized defendant as the individual who had engaged in the suspected sale of drugs to Vaxmonsky. Detective Bermudez testified that after defendant was placed under arrest, he was searched, and Bermudez recovered "13 vials on the right rear pocket of suspected C.D.S., purple caps, and also $38 in U.S. currency from the front right pocket." The parties stipulated that the vials contained cocaine.

Defendant argues that an improper remark by a State's witness made during cross-examination was so prejudicial that it warrants reversal of his conviction. The statement by Officer DeStefano arose during the following exchange:

DEFENSE COUNSEL: Okay, well I meant, the question is not that you didn't sign [the arrest report], the question is did you look at it prior to coming to [c]ourt today, and if so, how long ago?

OFFICER DESTEFANO: Well I'm sure I looked at it that evening.

COUNSEL: Do you have an independent recollection that you did?

DESTEFANO: Counsel, I'm happy I go home alive every evening, I couldn't tell you if I saw --

COUNSEL: Your Honor, I'm going to ask that that be stricken.

THE COURT: Objection sustained, that comment by the witness is stricken as unresponsive, not material. Jurors disregard that response.

The trial court also addressed the issue in its charge to the jury prior to deliberations:

Any testimony I may have had occasion to strike is not evidence and shall not enter into your deliberations. It must be disregarded by you. This means that even though you may remember the testimony you are not to use it in your discussions or deliberations.

In the absence of evidence to the contrary, a jury is presumed to understand and follow the instructions of the court. State v. Walker, 33 N.J. 580, 589 (1960). The trial court was in the best position to gauge the impact of the inappropriate remark, State v. Winter, 96 N.J. 640, 647 (1984), and we are satisfied that the matter was handled properly. The comment by Officer DeStefano during cross-examination had no realistic potential for affecting the jury's verdict.

Defendant also objects to the admission of a series of photographs of the building where he was arrested. The photographs depicted the building in "broad daylight," but the incident took place at night. Consequently, defendant argues that the photographs were improper, misleading and unfairly prejudicial. The State, on the other hand, argues that there could be no misunderstanding on the part of the jury because "the jury knew that the photographs were not taken at the same time of day as the incident, but were merely used to illustrate the location." We agree. Defense counsel cross-examined Detective Wilde extensively on what he was and was not able to observe from his position in front of 191 Academy Street. Both the detective's testimony and the respective summations of defense counsel and the prosecution made clear to the jury that it was dark out at the time of the surveillance. We are satisfied that any possible error was harmless and clearly not "capable of producing an unjust result." R. 2:10-2; see also State v. Wilson, 135 N.J. 4, 20-21 (1994).

Defendant now argues, for the first time, that there was insufficient evidence to sustain the convictions on counts two, three, four, and five, because "the State's proofs were insufficient to identify defendant as the seller who had sold the drugs to this buyer." This claim is procedurally barred because defendant failed to move for a new trial based on that ground as required by R. 2:10-1. See State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Nevertheless, even if we were to consider the issue, defendant's argument is without merit. There was strong evidence to support the finding by the jury that defendant sold cocaine to Vaxmonsky and that he possessed more cocaine with the intent to distribute it. Based on our review of the record, we are satisfied that there has been no "manifest denial of justice." R. 3:20-1.

Defendant's claim that the jury charge did not adequately "relate the statutory language of the drug offenses charged to the facts at issue," also lacks merit. As the Court has repeatedly noted, portions of a charge alleged to be erroneous cannot be dealt with in isolation, "but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)). After reading the jury instructions in their entirety, we are satisfied that the instructions fairly reflected the applicable law and were not in any way prejudicial to defendant.

Defendant's final arguments pertain to his sentence. The sentencing court incorrectly imposed two six-year extended term sentences, one for possession of cocaine with intent to distribute in a school zone (count three), and one for distribution of cocaine in a school zone (count five). The State concedes that a resentencing remand is necessary, as no more than one extended term sentence may be imposed pursuant to N.J.S.A. 2C:44-5(a)(2). State v. Pennington, 154 N.J. 344, 360-61 (1998). We affirm the six-year extended term sentence imposed on count three because it was less than the middle term allowed under the extended term range of five to ten years. N.J.S.A. 2C:44-1(f)(1). But we remand for resentencing on count five to reduce it to an ordinary term sentence.

The State also concedes that all three of defendant's sentences for violations of probation must be remanded for reconsideration. As noted by the State, "the finding of aggravating factors 3, 6, and 9 on each violation of probation was not appropriate." We agree. Under N.J.S.A. 2C:45-3(b), a sentencing court may, upon revoking probation, "impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted." In this context, however, the court's role in weighing the aggravating and mitigating factors differs from regular sentencing. State v. Baylass, 114 N.J. 169, 172 (1989). Because a violation of probation demonstrates a defendant's "inability to live lawfully and to respond positively to probation," the Court has declared "it is more consistent with the Code's sentencing scheme . . . to consider the effect of the probation violation on the relevant mitigating, but not the aggravating, factors." Id. at 177. The finding of aggravating factors 3, 6, and 9 on each violation of probation was not appropriate because the court could only consider the aggravating factors "that existed at the time of the initial sentencing." Id. at 176.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


Defendant's conviction is affirmed, and the matter is remanded for resentencing.

(continued)

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A-5375-04T4

June 30, 2006