STATE OF NEW JERSEY v. NANETTE L. MALAVE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3885-07T43885-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NANETTE L. MALAVE, a/k/a NANETTE

KOLESTER, DONNA M. MALAVE,

Defendant-Appellant.

_______________________________________

 

Submitted August 25, 2009 - Decided

Before Judges Sabatino and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-01-00020.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Kate Simmons, Designated Counsel, on the brief).

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nanette L. Malave appeals her conviction and sentence for third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). While we affirm the conviction and sentence in this direct appeal, we do not address the issues raised by defendant regarding her counsel's failure to make a motion to suppress and the merits of such a motion. Those questions are better left to a petition for post-conviction relief.

I.

On August 7, 2005, defendant was observed by Officer James Crilly of the Clinton Police Department driving her car on Route 31. The vehicle was traveling back and forth from the right to the left lane, the right blinker was on for an extended period of time, and the driver flicked a cigarette ash out the window. As a result, Officer Crilly stopped the vehicle. When he approached, he detected the odor of alcohol and observed beer cans in the car. Another officer administered the sobriety tests. Officer Crilly testified at trial that after the sobriety tests were conducted, he decided not to charge defendant with driving under the influence. He then asked defendant "if she had . . . anything illegal on her person that we didn't find." In compliance with this request, defendant turned over to him a straw and a vial containing suspected cocaine. The officer then searched her purse and found an additional eleven vials and another straw.

At trial, Melissa Smith, a forensic scientist at the New Jersey State Police Office of Forensic Sciences, testified that the vials contained trace amounts of cocaine; the quantity of the residue was so small that it could not be weighed. Defendant testified at trial and admitted that she had obtained one vial of cocaine which she used at a party the night before the stop. She could not account for the other eleven vials found in her purse. The defense argued in summation that the State had not proven an essential element of the charge, namely defendant's knowledge that she possessed cocaine. The defense maintained that defendant thought the vials were empty and that she was unaware they contained cocaine. Nonetheless, the jury found defendant guilty of possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1).

Defendant was sentenced to two years probation. As conditions of probation, she was required to serve ninety days in the county jail, which she was allowed to serve on weekends, to submit to random drug screens and a substance abuse evaluation, and to perform fifty hours of community service. Her driving privileges were forfeited for six months. She was also required to pay the requisite monetary penalties, fines, and costs, and to submit to the required DNA analysis.

II.

On appeal, defendant raises the following issues:

POINT I

CONTINUED DETENTION OF THE DEFENDANT AFTER SHE PASSED THE SOBRIETY TEST WAS UNREASONABLE AND VIOLATED THE FOURTH AMENDMENT. CONSEQUENTLY, EVIDENCE PRODUCED FROM THIS ILLEGAL DETENTION SHOULD HAVE BEEN SUPPRESSED (Not Raised Below).

POINT II

DEFENDANT'S COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY FAILING TO FILE A MOTION TO SUPPRESS THE EVIDENCE PRODUCED.

POINT III

THE PROSECUTION'S IMPROPER OPENING AND CLOSING REMARKS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (Not Raised Below).

POINT IV

THE NINETY-DAY JAIL SENTENCE WITH A TWO-YEAR PROBATION PLUS FIFTY HOURS OF COMMUNITY SERVICE AND A SIX-MONTH DRIVER'S LICENSE SUSPENSION WAS MANIFESTLY EXCESSIVE.

We will not address the issues raised in Points I and II, including defendant's request that we remand for an evidentiary hearing on her ineffective assistance of counsel claim. The questions of whether defense counsel was ineffective in failing to move to suppress evidence and the merits of such a motion are issues more appropriately resolved in a post-conviction relief application pursuant to Rule 3:22. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they cannot reasonably be raised in a prior proceeding" and observing that "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record").

In Point III, defendant contends that the prosecutor made improper remarks in her opening and closing statements that violated defendant's right to a fair trial. A review of the record reveals that in her opening statement, the prosecutor told the jury that the twelve vials "had cocaine in the bottom of them together . . sufficient to constitute another line or possibly two of cocaine." In her closing statement, the prosecutor stated that "if you take everything in all twelve of those vials, even if it is not two, I believe what I said to you in the beginning was one line. One line still has worth to somebody [who] could use this cocaine." The record does not support these statements since the forensic scientist testified that the vials contained only residues. Although the expert did acknowledge that the residue could be scraped out, her testimony does not indicate that, if the residue in all the vials were scraped out, it would result in a weighable quantity nor can we infer from this record that the scrapings would be equivalent to one line of cocaine.

While a prosecutor is expected to argue to the jury the State's case forcefully and vigorously, those arguments must be made in the context of the prosecutor's primary duty which "is not to obtain convictions, but to see that justice is done." State v. Smith, 167 N.J. 158, 177 (2001) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). Further, the courts recognize that "because the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfill his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent." Ibid. (quoting State v. Frost, supra, 158 N.J. at 87). As a result, the courts will not "condone prosecutorial excesses." Ibid. (quoting State v. Frost, supra, 158 N.J. at 87). As part of their obligation to see that justice is done, "prosecutors should not make inaccurate legal or factual assertions during a trial," and they are required to "confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." Id. at 178.

Not every misstep by the prosecutor, however, is grounds for reversal of the conviction. A prosecutor's misconduct will require overturning the conviction only when "the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). To warrant reversal of the conviction, the prosecutor's conduct must be "'clearly and unmistakenly improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, supra, 167 N.J. at 181-82 (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). In reaching this determination, the reviewing court will consider the "tenor of the trial" and the response of counsel and the court to the improprieties. State v. Frost, supra, 158 N.J. at 83. Where defense counsel did not object to the improper remarks made by the prosecutor, the remarks will not generally be deemed prejudicial. Ibid.

We do not find the prosecutor's remarks about the vials containing sufficient evidence to constitute a usable line of cocaine supported by the record. However, defense counsel did not object to the remarks in either the opening or the summation, so the presumption is that they were not prejudicial. Further, the critical issue in the case was whether defendant was aware that the vials contained cocaine. The quantity in the vials was not relevant to her conviction. Accordingly, we do not find that the prosecutor's remarks on that point in the opening or the summation deprived defendant of a fair trial.

In Point IV of her brief, defendant challenges her sentence, contending that the trial court mistakenly found aggravating factor three pursuant to N.J.S.A. 2C:44-1(a)(3), namely, the risk that she would commit another offense. In support of this argument, defendant cites her modest criminal record that consisted of the following offenses: (1) theft in 1981 (she was accepted and completed a pretrial intervention program for this charge); (2) a municipal court conviction for shoplifting (she was fined $225); (3) a municipal court conviction in 1994 for using and being under the influence of CDS (she received a conditional discharge for this offense); and (4) a municipal court conviction in 1998 for possession of drug paraphernalia (she received a conditional discharge for this offense). Thus, at the time of the instant offense she had remained offense-free for almost eight years and had never been placed on probation or been jailed or imprisoned for any of her prior offenses.

The fact that defendant had these prior offenses and continued to offend years later despite participation in diversionary programs, provides a factual basis for the trial court's finding of aggravating factor three, "[t]he risk that defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3). However, in light of her limited criminal record as noted above, this factor should not be weighed heavily against her. Indeed, the trial court appeared to have given modest weight to this aggravating factor. Imprisonment may be imposed as a condition of probation for a period not to exceed 364 days. N.J.S.A. 2C:43-2(b)(2). The court imposed upon defendant a term of only ninety days in jail which she was allowed to serve on weekends.

While we must carefully and vigorously scrutinize sentences to assure that there has been no abuse of discretion by the trial courts, we may not substitute our judgment for that of the trial court. State v. Cassady, 198 N.J. 165, 180 (2009).

[A]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.

[Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]

We find that the sentence imposed is consistent with the relevant law and does not shock the judicial conscience.

For all of these reasons, we affirm defendant's conviction and sentence, without prejudice to her right to pursue the issues of ineffective assistance of counsel and the suppression of evidence in a post-conviction relief petition.

(continued)

(continued)

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A-3885-07T4

September 1, 2009