STATE OF NEW JERSEY - v. CAREY WIGGINS -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5568-05T45568-05T4

A-0708-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE WIGGINS,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAREY WIGGINS,

Defendant-Appellant.

____________________________

 

Submitted March 30, 2009 Decided

Before Judges Lisa, Reisner, and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2443.

Robin Kay Lord, attorney for appellant Andre Wiggins.

Yvonne Smith Segars, Public Defender, attorney for appellant Carey Wiggins (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

Defendants Andrew Wiggins and Carey Wiggins appeal their convictions after trial by jury. We affirm the convictions and resulting sentences in their entirety except that we remand for the trial judge to state for the record the reasons for his imposition of the less restrictive sentence first.

Defendants were convicted on June 17, 2005, on Bergen County superseding Indictment No. 04-12-2443 of two counts of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts one and five); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts four and seven); and third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six).

On June 2, 2006, the trial judge sentenced Andre on count one, drug distribution, to three years of imprisonment. Counts two and four were merged into count one, and counts five and seven were merged into count six. On count six, distribution of a controlled dangerous substance within 1000 feet of school property, the trial judge imposed a consecutive extended term of five years, subject to five years of parole ineligibility. On Andre's judgment of conviction, the five-year term of parole ineligibility was corrected to a three-year term. Appropriate fines and penalties were also imposed.

On June 5, 2006, Carey was sentenced on count one, drug distribution, to three years of imprisonment. Counts two and four were merged into count one, and counts five and seven were merged into count six. On count six, distribution of a controlled dangerous substance within 1000 feet of school property, Carey was sentenced to a consecutive three-year term subject to three years of parole ineligibility. Appropriate fines and penalties were also imposed.

Andre Wiggins contends as follows:

POINT I

DEFENDANTS' MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.

POINT II

THE MISCONDUCT OF THE POLICE, THE PROSECUTOR AND THE TRIAL COURT IMPROPERLY INDUCED THE INFORMANT, WHO WAS KNOWN TO THE DEFENSE, TO DISOBEY A DEFENSE SUBPOENA AND REFUSE TO TESTIFY AT THE HEARINGS ON THE DEFENSE NEW TRIAL MOTION, AND INFRINGED DEFENDANT'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART 1, 10, AND HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS UNDER THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND N.J. CONST., ART. 1, 1.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO CONFRONT A CRITICAL WITNESS AGAINST HIM BY DENYING THE DEFENSE MOTIONS FOR IN CAMERA REVIEW OF DETECTIVE ROBINSON'S PERSONNEL FILE.

POINT IV

DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS INFRINGED BY MULTIPLE ACTS OF PROSECUTOR'S MISCONDUCT (PARTIALLY RAISED BELOW).

POINT V

THE JURY INSTRUCTION ON REASONABLE DOUBT VIOLATED DEFENDANT'S BASIC RIGHTS TO THE PRESUMPTION OF INNOCENCE AND PROOF BEYOND A REASONABLE DOUBT (PARTIALLY RAISED BELOW).

POINT VI

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND ILLEGAL.

Carey Wiggins raises the following points:

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S APPLICATION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

POINT II

THE STATE'S CONDUCT INDUCED MARIBEL SANCHEZ TO INVOKE HER FIFTH AMENDMENT PRIVILEGE AT THE EVIDENTIARY HEARING, DEPRIVING DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND COMPULSORY PROCESS.

POINT III

THE TRIAL COURT ERRED IN NOT GRANTING A DEFENSE MOTION TO CONDUCT AN IN CAMERA REVIEW OF DETECTIVE ROBINSON'S PERSONNEL FILE.

POINT IV

THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (PARTIALLY RAISED BELOW).

POINT V

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

THE TRIAL

We glean the following from the testimony presented at trial. Detective Jeffrey Robinson, a ten-year veteran of the Paterson Police Department, testified that in July 2003, he was temporarily assisting the Narcotics Division of the Hackensack Police Department, working undercover and making "street level" narcotics buys. As of trial, he had been reassigned to the Juvenile Bureau of the Paterson Police Department.

On July 3, 2003, Robinson was assigned to work with Hackensack Police Detectives Scott Sybel and Albert Gutierrez and Detective Sergeant Linquito. Sybel showed Robinson a photograph of Carey, gave him $20, and instructed him to make an undercover buy at Carey's residence, apartment 404, 6-8 Prospect Avenue in Hackensack, accompanied by a confidential informant (CI). At approximately 9:10 p.m., Robinson, accompanied by the CI and wearing a Unitel device, which transmitted, but did not record, drove an undercover car to the area near Carey's apartment building. Sybel, Gutierrez, and Linquito drove separately to the location to conduct surveillance and serve as backup.

Robinson and the CI were "buzzed in" to apartment 404, where the CI introduced Andre as "Dre" to Robinson. Andre told Robinson that the crack cocaine was not ready, and that if they could wait approximately half an hour, Carey, his father, "should be done cooking it."

Andre took Robinson into the kitchen where Carey was stirring a pot of a rock-like substance, which appeared to be crack cocaine. When Robinson said he hoped that these were high quality goods, Carey assured him this was "the best crack around." Also present was a woman whom Carey identified as his "old lady."

When the drugs were ready, Carey called Andre back into the kitchen. Andre motioned for Robinson to come and watch while Carey removed the rock-like substance from the cooking pot, dividing it into several one-half inch plastic bags. Andre handed Robinson one of the bags, which was imprinted with a blue devil. Robinson paid Andre $20 and left the apartment with the CI. Back at police headquarters, the drugs were marked as evidence. Robinson identified Carey as the person who sold the drugs and signed and dated Carey's photograph.

A few days later, on July 8, 2003, Sybel gave Robinson $20 to make a second undercover buy. The CI had been scheduled to accompany Robinson, but called and cancelled. Nonetheless, Robinson went back to the apartment, gaining admission when he identified himself as the CI's friend. Carey said that he did not have drugs to sell, but referred Robinson to Andre, who was standing next to a red Toyota Camry in a nearby parking lot. Robinson proceeded to the lot with Carey, got into the vehicle with Andre, and purchased another small baggie of crack cocaine for $20. This bag of drugs was not stamped with any emblem.

When Robinson returned to Hackensack Police headquarters, Linquito told him that Sybel and Gutierrez had stopped Andre's car. Linquito and Robinson then drove past the scene of the vehicular stop, and Robinson identified Andre as the person who sold him the drugs. Robinson later identified Andre as the seller a second time, when shown a photo array.

Laboratory testing determined that the substance in the bags was cocaine. When Carey and Andre were finally arrested, no drugs, other contraband, scales, or large amounts of cash were found in their apartment, in their vehicle, or on their persons.

Sybel also testified. He prepared the police reports, the request for analysis of the seized substances, and the complaints against defendants. Although he followed the same procedures as to both, through some happenstance, the complaint form charging Carey for the July 3 transaction had a pre-printed sequence number higher than the complaint prepared days later for the July 8 transaction. Andre's complaints had consecutive numbers. Sybel explained that none of the officers took blank complaints in order. Some took them randomly or from the bottom of the stack. Sybel had also mistakenly checked off a box on his July 8 report indicating that defendants were arrested. The complaints were signed in September, prior to receipt of laboratory results.

During the grand jury proceeding, Sybel assented when asked if the bag of drugs purchased on July 3 featured a "big W." At trial, Sybel explained that it actually featured a blue devil, and that the transcriber had erroneously translated the prosecutor's words. Robinson stated that he had initialed the bag purchased on July 3, but after looking at it at trial, admitted that it bore no initials. In their descriptions of Andre, none of the officers noted his three prominent neck keloids.

Patricia Goodell, who had been Carey's girlfriend for ten years and lived with him in 2003, testified that the buzzer/intercom system in the apartment building was not working in July 2003. Robinson and the CI, and later Robinson alone, could not have been "buzzed" into the apartment. Goodell denied that any drug dealing had ever occurred in her apartment.

Dwayne Howard, the apartment building's superintendent, denied that any drug dealing occurred in the building, or that he had ever heard complaints about it in the building. He too stated that the buzzer/intercom system was broken during the entire summer of 2003. In order to protect his job, Howard said, if he had observed any drug dealing, he would have reported it.

AFTER THE TRIAL

Between the verdict and defendants' sentence date, Andre located the CI, whose identity had been protected by the court in pre-trial motions. At Andre's request, the CI signed a brief affidavit exculpating both defendants and incriminating Robinson. As a result, defendants moved for a new trial on the basis of newly discovered evidence. The CI subsequently supplied a second equally brief affidavit reiterating her claims.

Specifically, in her original affidavit, the CI averred that she knew Robinson as "Jay" and had smoked crack with him at a motel on July 3, 2003. She denied purchasing drugs from Carey, explaining that she and "Jay" went to Carey's apartment on that date solely to borrow a crack pipe. In her second affidavit, she said that she had not seen Carey since July 8, 2003, and did not see Andre until the summer of 2005.

The CI had a 2003 shoplifting case pending in the Hackensack Municipal Court as well as a related three-year-old open bench warrant. Defense counsel did not subpoena the CI for the May 5, 2006 hearing on the new trial motions, as she had indicated that she would appear voluntarily. Because the CI failed to appear on the first scheduled date, a subsequent hearing was scheduled for May 10, 2006, and again, the CI did not appear.

Thereafter, defendants' attorneys informed the trial judge that the CI had disavowed her two affidavits in a May 17, 2006 sworn statement to police, and that as a result, the shoplifting charge against her had been dismissed. The trial judge assigned counsel to represent the CI.

On May 22, 2006, the CI appeared at the evidentiary hearing on the new trial motion, was administered the oath, and informed the court that she was invoking her right against self-incrimination. She was excused without further questioning.

Hackensack Police Officer Dana Hermann then testified that she was working the 6:00 a.m. to 5:00 p.m. shift as a desk officer on May 15, 2006, when the CI came into headquarters and asked to speak to Gutierrez or any Narcotics Division detective. Hermann informed her that none had reported to work yet, that they were unlikely to be in prior to 9:00 a.m., and that she should return later. The CI then asked Hermann to page Gutierrez because "she was in big trouble." The CI said that she had helped the Narcotics Division make arrests, and that those arrested had confronted her about her cooperation. She told Hermann that she had spoken to their attorneys, but had lied and needed to discuss this with Gutierrez.

On the following evening, May 16, 2006, the CI returned with her husband to headquarters, where she met with Sergeant Patricia DeSimone of the Bergen County Prosecutor's Office, Confidential Investigations Unit. The CI waived her Miranda rights and told DeSimone that she had given Andre's counsel "papers" that contained untruths and wanted to straighten things out. She also told DeSimone that she had been subpoenaed, but could not testify because the affidavits she had signed were false. The CI gave DeSimone a signed formal statement, in which she denied ever using drugs or having sex with Robinson. The CI acknowledged taking Robinson to the apartment to buy drugs and said she lied about it because she did not want Andre to know the role she played. She also said that Andre had sought her out and accused her of bringing the police to his house.

The CI admitted telling Andre that the man she had brought to his apartment was just someone with whom she shared drugs. Andre asked her to verify this at his attorney's office, and she agreed, but changed her signature style on the affidavit to show that she was lying. When Andre told the CI that the first affidavit "got messed up," she returned with him to his attorney's office and signed a second affidavit, again using a "mixed-up" signature to indicate that she was lying. She claimed that Andre was standing next to her when she signed.

The CI returned to the attorney's office by herself to recant, but because the attorney was not present, she left. She explained to DeSimone that she came to the station because she had been served with a subpoena by Andre's attorney and did not want to perjure herself in court. The CI remained in custody on the shoplifting warrant until the following day, May 17, 2006, at which time the charges were dismissed.

EVIDENTIARY HEARING

The hearing on defendants' motions for a new trial based on newly discovered evidence lasted several days. A secretary in Andre's trial attorney's building testified that the CI laughed and seemed relaxed in Andre's company on the seven to ten occasions she had seen them together.

A friend of the CI, Inez Daniels, said that in the summer of 2005, she told the CI that Andre was looking for her because she was the informant in his case. The CI used Daniels' phone to call Andre, who in turn came immediately to Daniels' house. Daniels heard the CI tell Andre that the man she brought to the apartment was not a cop, but someone with whom she smoked crack and had sex. Daniels reported that the CI did not want her husband to find out about this affair with "Jay" or her other activities. Daniels claimed that Gutierrez's wife was a cousin of the CI's husband, which the CI's husband denied when he testified during the hearing.

The CI's husband said that he too had been charged with shoplifting in 2003, and that nothing ever happened with the case. He encouraged the CI to surrender to police once he learned of the bench warrant.

The CI worked for Gutierrez in July 2003, and Gutierrez acknowledged that she was the informant in defendants' cases. Although he knew that the shoplifting charge against her had been dismissed, Gutierrez did not know why and claimed not to have been in Municipal Court at the time. He also acknowledged driving by the CI's house several times when she failed to appear for the rescheduled May 10, 2006 hearing, but explained that he had been assigned to that area and was merely patrolling the street. The CI's home is in a high narcotics area, a block-and-a-half from the rear parking lot of the police station.

Andre testified that he was unaware of the CI's whereabouts until after the trial ended. He heard from a friend that the CI was seen in Daniels' company at a bus stop and immediately called Daniels. Andre had known the CI through Carey for seven or eight years. He also said that he waited in his attorney's waiting room while the CI signed the affidavits.

According to the Hackensack municipal prosecutor, Michael Zalenskie, the shoplifting charge against the CI was dismissed on May 17, 2006. The witness to the 2002 incident was a CVS drugstore employee, and the charge was dropped after Gutierrez or the public defender told him either that the store was no longer in Hackensack or the complainant no longer worked there. He denied that a member of the Hackensack Police Department or anyone else had induced him to dismiss the charge. Gutierrez did, however, have three or four drug cases on that day's calendar.

The CI's municipal public defender, Christopher Campos, was also called as a witness. Before the May 17, 2006 proceeding, he called out the complainant's name in the courtroom, but no one answered. Gutierrez had told him that the CVS had either closed or was operating under new management. Campos accordingly consulted with the prosecutor and completed a dismissal form. In Campos' opinion, it was not unusual for shoplifting cases to be dismissed in municipal court. The CI, who appeared in court in shackles, never indicated that she expected the matter to be dismissed.

An employee of Andre's trial attorney testified that a CVS employee informed her that no one from the Hackensack Police Department, the municipal prosecutor's office or the municipal public defender's office had called the store recently regarding an old shoplifting case. Information regarding former employees was available from corporate headquarters.

MOTIONS FOR A NEW TRIAL

To succeed on a motion for a new trial based on newly discovered evidence, a defendant "must show that the evidence is (1) material, and not 'merely' cumulative, impeaching, or contradictory; (2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and (3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). All three prongs must be met. Ways, supra, 180 N.J. at 187.

New trial motions based on newly discovered evidence, however, are not favored and "should be granted with caution." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 and 651 (1984). Our Supreme Court declared in Ways, supra, 180 N.J. at 187-88, that "[n]ewly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." That is, the judge reviewing the motion "must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Id. at 191.

Both defendants contend that the trial judge erred by denying their motions for a new trial based on the CI's affidavits, which they characterize as newly discovered evidence. In reaching his conclusions as to the applications, the trial judge applied the three-prong test for newly discovered evidence, but focused only on the third prong of the test, whether the CI's information and credibility would likely change the jury's verdict if a new trial were granted. He opined that the CI's recanting statements so tarnished her credibility that in weighing her affidavits against the recantation, no reasonable jury would conclude that the information contained in the affidavits was true. The trial judge was required to, and did, "engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Ibid.

Where recantation of trial testimony is the asserted newly discovered evidence, that evidence is generally regarded as inherently suspect and untrustworthy. State v. Carter, 69 N.J. 420, 427 (1976). In determining whether recanting testimony merits a new trial, a judge must assess the credibility of the recantation. Ibid. If it is believable, the judge must then decide whether the testimony "so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice." State v. Puchalski, 45 N.J. 97, 107-08 (1965). The burden is on the party proffering the recantation testimony to show that the recantation is "probably true and the trial testimony probably false." Carter, supra, 69 N.J. at 427. Here, the recantation was not of trial testimony, but rather, of the affidavits the CI signed at defendants' request. The parallels between the two affidavits here and the more usual trial testimony circumstance warrant analysis pursuant to the doctrine of newly discovered evidence.

It is possible that the CI's affidavits might sway a jury were she to take the stand at a new trial, testify as to the authenticity of the information contained in those documents, and repudiate the recantation. But, that mere possibility does not rise to a probability, as required under the third prong of the newly discovered evidence test.

We agree with the trial judge that with or without immunity at trial, the CI's credibility is so tarnished that the jury would not likely use her testimony to exculpate defendants and discredit Robinson. We reach this conclusion despite the possible missteps in Robinson's testimony. The CI categorically stated in the affidavits, for example, that she was not a confidential informant, whereas Gutierrez said that she worked for him as an informant for at least the month of July 2003 and was the informant in defendants' cases. Were a new trial to be granted, a jury would be more likely to believe Gutierrez and discredit the CI. In addition, the CI had been addicted to drugs, had a prior indictable conviction for a drug offense, and was a friend of both defendants.

Most significantly, if a jury heard the testimony of Hermann, who had no connection to the case, regarding the CI's recantation, they would more likely believe the recantation than the affidavits. Hermann's testimony detailed the CI's agitated demeanor, insistence on speaking to Gutierrez, and statements about having lied to defendant's attorneys. Hence, no reasonable jury would likely believe the claims made in the affidavits over the claims made in the CI's recantation.

Furthermore, in order to accept the affidavits and reject the recantation, the jury would have to find a conspiracy between the Hackensack Police Department, the Bergen County Prosecutor's Office, the Hackensack Municipal Court, the municipal prosecutor's office, and the municipal public defender's office. The sole purpose of the conspiracy would be to bolster a police officer's eyewitness testimony in order to convict two drug dealers distributing street-level amounts of crack cocaine, an unlikely scenario. In other words, the third statement and the circumstances surrounding it give the lie to the prior two affidavits. The CI's conduct in recanting and her earlier denial of being an informant make the recantation, and not the affidavits, more credible. For these reasons, we agree with the trial judge's conclusion that the CI's testimony was likely too tainted to change the ultimate outcome.

THE CI'S INVOCATION OF HER FIFTH AMENDMENT PRIVILEGE

Both defendants contend that the post-verdict conduct by the police, the State, and the judge improperly caused the CI to invoke her right against self-incrimination, thereby depriving them of their constitutional rights to due process and compulsory process. They seek a remand for an evidentiary hearing in order to require the State to either agree to a new trial or to immunize the CI on the use of her testimony pursuant to N.J.S.A. 2A:81-17.3.

A criminal defendant has a right to call witnesses in his own behalf. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973); State v. Harold, 183 N.J. Super. 485, 493 (App. Div. 1982). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers, supra, 410 U.S. at 294, 93 S. Ct. at 1045, 35 L. Ed. 2d at 308. The right, however, is "not absolute." State v. Jenewicz, 193 N.J. 440, 451-52 (2008). A defendant does not have an unfettered right to offer evidence that is "'incompetent, privileged, or otherwise inadmissible under standard rules of evidence.'" Ibid. (quoting Montana v. Egelhoff, 518 U.S. 37, 42, 116 S. Ct. 2013, 2017, 135 L. Ed. 2d 361, 367 (1996)).

Both defendants contend that their rights were violated because dismissal of the shoplifting charge induced the CI's change of heart, and because the State threatened her with a new perjury charge if she testified in court. In addition, Andre asserts that the judge erred by failing to scrutinize the CI's invocation of her right against self-incrimination and should have granted her immunity under the judicial exception enunciated in State v. Feaster, 184 N.J. 235 (2005).

We agree that the trial judge should have inquired into the basis for the CI's claim of privilege. In some situations, failure to do so may constitute reversible error. See Zucker v. Silverstein, 134 N.J. Super. 39, 53-54 (App. Div. 1975). In this instance, however, any error from the court's failure to ask any questions was harmless because the CI's statements had clearly implicated her in various drug offenses.

As to the claim that the CI was intimidated by the State, even if her statements alone would not warrant prosecution, see State v. Lucas, 30 N.J. 37, 51 (1959), they theoretically could have triggered an investigation into her activities, ultimately leading to criminal charges. But, as the prosecutor stated in on-the-record discussions, prosecution was not practical. There is no basis to conclude that the CI's failure to appear at evidentiary hearings was due to a fear of prosecution, as opposed to, for example, the fear that her role as a CI would be exposed.

Proof that the CI entered into an agreement regarding the dismissal of the shoplifting charge in consideration for her recantation of the prior affidavits is also lacking. Not only did each officer who testified at the evidentiary hearing deny such a promise, the CI's husband as well as her municipal public defender testified that the CI never mentioned any such favorable treatment to them.

The appointment of counsel for the CI had been discussed by both the State and defense attorneys on the record, as they believed that she would be at risk if she were to testify. She was never a voluntary witness. The details that the CI would have disclosed, had the judge made further inquiry of her, were known from the affidavits, her sworn statement, and the testimony of others. Even if defendants had been able to comprehensively cross-examine the CI, her credibility could not have been rehabilitated to the extent that her affidavits alone would have warranted a new trial. Accordingly, we find that defendants' constitutional rights were not violated by the invocation of the CI's Fifth Amendment privilege or the conduct of the State in relation to the exercise of that privilege.

IN CAMERA REVIEW OF ROBINSON'S PERSONNEL FILE

On April 3, 2009, we remanded the matter so that the trial judge could inspect Robinson's personnel file in camera to address defendants' claims that he was involved with illegal drug use and had been transferred to the juvenile unit as a result of some departmental disciplinary action. Defense counsel had argued before the trial judge that if Robinson's personnel file established that he was being treated for drug addiction or was otherwise involved with drugs, they were entitled to the information for impeachment purposes. The State denied that anything exculpatory had been withheld from defendants. On remand, the trial judge determined that the file did not indicate that Robinson had a drug problem or had been subjected to disciplinary action on this issue. The file did not contain material useful to defendants for impeachment purposes.

PROSECUTORIAL MISCONDUCT

Both defendants contend that their constitutional rights to a fair trial were infringed by singular and cumulative acts of prosecutorial misconduct during summation. "[T]he 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." State v. Nelson, 173 N.J. 417, 460 (2002). "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." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).

In determining whether the prosecutor's comments were sufficiently egregious to deny the defendant a fair trial, courts "consider the tenor of the trial and responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575. "Prosecutors are expected to make a vigorous and forceful closing argument to the jury . . . and are afforded considerable leeway in that endeavor." Jenewicz, supra, 193 N.J. at 471 (quoting Nelson, supra, 173 N.J. at 460). There is a fine line, however, that "separates forceful from impermissible closing argument." State v. Rose, 112 N.J. 454, 518 (1988).

Appellate courts have not hesitated to reverse convictions where the prosecutor "'over-stepped the bounds of propriety and created a real danger of prejudice to the accused.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 511 (1960)). In determining the propriety of a prosecutor's comments, courts consider whether the prosecutor's legal or factual assertions were accurate, and whether the comments were confined to the evidence and reasonable inferences therefrom. Smith, supra, 167 N.J. at 182.

Where defendants fail to object to the prosecutor's comments, they must show that a plain error occurred, namely, that the misconduct was so egregious that it deprived them of a fair trial. R. 2:10-2; Smith, supra, 167 N.J. at 181-82. Typically, "if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Timmendequas, supra, 161 N.J. at 576. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made . . . [and] deprives the court of the opportunity to take curative action." Ibid.

Defense counsel implied that the Hackensack Police Department, as well as Robinson, fabricated the charges and planted evidence. Carey's counsel attempted to cast doubt on the credibility of both Robinson and Sybel. In addition, Carey's counsel questioned the role of the CI, whose identity was then unknown. He also made reference to the out-of-sync complaint numbers, the absence of any mention in police reports of Robinson's transmission device, the fact that no recording was made, and the description in the grand jury transcript of the bag purchased on July 3 as labeled with a "big W," not a blue devil. Carey's counsel asserted that these various circumstances constituted a "pattern," as a result of which the jury "should not believe anything" said by Robinson or Sybel. He argued that Carey's partner, Goodell, was a credible witness, that Carey was fifty-seven years old in 2003, and that Andre had serious medical conditions.

Andre's attorney referred to the gravity of the charges and alleged that the case was a "police cover-up" of a "botched" narcotics investigation. He also suggested that the transactions were recorded, but the recordings were not turned over because they would not have supported the State's version of the events.

As a result, the prosecutor made the following statement:

[Y]ou took an oath, you swore to do something, to deliberate, determine what the facts are, what happened here, without prejudice, bias and sympathy. Well, let me help you do something right now because what [the] defense is trying to do in one respect is put something on your shoulders, it's called "a moral obligation" moral weight and I direct you back to the comments about what the penalties may or may not be, should you find one or both of these individuals guilty and I ask you to follow the law, the law as it's given to you by the Judge and to remind you that you're (sic) oath is to be finders of the facts. If indeed you find one or both of these defendants guilty of both of these charges, the Judge will later determine what penalty, if any these individuals will have to face, all right? So let's take that moral obligation, prejudice, the bias or the sympathy and that also goes to potentially, Mr. Andre Wiggins and I'm sympathetic to him, he has a hip problem, fine, but that's not what you should involve yourself with in your deliberations. Don't speculate, deliberate and follow the law. Prejudice, bias and sympathy to either side, you would be violating your oath.

The prosecutor also said, "I am not ashamed to stand here and tell you that you should take full cognizance and recognition of [the police officers'] testimony. I ask you, though, to follow the law, deliberate, don't speculate."

The prosecutor's words did not express an improper personal belief or opinion as to the truthfulness of the witnesses' testimony. See State v. Marshall, 123 N.J. 1, 154 (1991). The prosecutor did not personally vouch for the credibility of the officers. In fact, he was merely urging the jury to follow the judge's instructions in finding the facts.

In a similar vein, defendants now complain for the first time that the prosecutor's repeated use of the phrase, "the defense wants you to believe" was intended to improperly sway the jurors. We disagree. The prosecutor was just referring to the defense theories to which he was responding so that the jury could follow along.

Defendants also complain about the prosecutor's reference to the defense's demand for production of original lab reports. The prosecutor, however, only mentioned in his closing that the State was compelled to obtain the originals and did so. There is nothing improper about these statements.

The State's explanation for the numbers on the complaints lodged against defendants being out of sequence was unobjectionable in its entirety. The prosecutor simply encouraged the jurors to use their common sense in evaluating the claim that the out-of-sync numbering was proof that the charges were false.

Defendants' further allegations address the State's mention of the word "pedigree" and a photograph of Carey, suggesting that the officers had prior contact with defendants. The statements were made solely to refute defense counsel's arguments regarding the officers' identifications. In the context of the entire summation, these comments were also unobjectionable. Nothing said by the State constituted a prejudicial remark.

SENTENCE

Sentences will only be disturbed when the application of the facts to the law shows "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). In this instance, the sentencing judge engaged in an appropriate weighing of the aggravating and mitigating factors, and our conscience is not shocked by the sentences ultimately imposed, including the mandatory extended term for Andre, N.J.S.A. 2C:43-6(f). The arguments related to the length of defendants' sentences lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Our review of the record, however, does not establish that the judge explained why he required the less restrictive sentence to be served first. Although such sentencing is not illegal, it may constitute an abuse of discretion in some situations. State v. Ellis, 346 N.J. Super. 583, 597 (App. Div.), aff'd, 174 N.J. 535 (2002). Because such sentencing is "akin to the discretionary imposition of an additional period of parole ineligibility," it requires a more specific discussion than was the case here. Ibid. We therefore remand the matters for only that purpose.

JURY CHARGE

Andre complains for the first time on appeal that the judge's charge on reasonable doubt violated his right to the presumption of innocence and the requirement that the State prove each element of an offense beyond a reasonable doubt. Furthermore, he contends that by referring to "the reasonable person," the charge impermissibly shifts the focus from the jury's doubt to that of the average person. This argument is subject to the plain error standard. State v. Bunch, 180 N.J. 534, 541 (2004).

The judge did not deviate from the standard jury instruction with regard to reasonable doubt, the presumption of innocence, or the State's duty to prove each element of a statutory offense. No reason is proffered as to why he should have done so. Accordingly, we find that this argument also lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966).

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A-5568-05T4

July 23, 2009