STATE OF NEW JERSEY v. CARL W. ROWE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6021-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL W. ROWE,

Defendant-Appellant.

______________________________________

 

Submitted September 24, 2008 - Decided

Before Judges Rodr guez and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0299.

Yvonne Smith Segars, Public Defender, attorney for appellant (Randall J. Peach, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Carl W. Rowe was convicted of two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); and one count of second-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2). These charges were based on four controlled purchases of cocaine. The judge granted the State's motion for imposition of a mandatory extended term on the second-degree conviction and imposed a fourteen-year term with a seven-year parole disqualifier on the second-degree conviction and concurrent four-year terms on the third-degree convictions. We affirm.

The State's proofs can be summarized as follows. In July 2003, Hammonton Police Detective Gerardo Martinez was assigned to the Atlantic County Strike Force to work on a narcotics investigation. Martinez's team included Atlantic County Prosecutor Investigators James Scoppa and Nicole Zulawski, and Hammonton Police Officer John Irwin.

Martinez asked James Bennett to call defendant to set up a purchase of cocaine. Bennett had grown up with Martinez and had recently been charged with a third-degree offense. Pursuant to an agreement, Bennett pled guilty to a disorderly persons offense and agreed to cooperate with Martinez as an informant. In exchange, Bennett was promised a probationary sentence.

Pursuant to this cooperation agreement, Bennett provided Martinez with information about defendant, whom he knew as "Craig." The State received approval to use a consensual intercept. A tape recorder was used to record telephone conversations between Bennett and defendant. The recorder had been checked for operability and a new tape was used. After the conversations were recorded, Scoppa took custody of the tape and secured it, removing the tabs to prevent re-recording.

First Controlled Purchase

On July 22, 2003, in the presence of Martinez and Scoppa, Bennett called defendant on the telephone in order to purchase narcotics. Martinez and Scoppa could overhear both sides of the conversation. Defendant told Bennett to go to the Wal-Mart parking lot in Hammonton. A police surveillance team went to that location. However, defendant did not show up. Bennett placed a second call to defendant in which defendant told Bennett to meet him at a fast-food store on Route 30. Minutes later, Martinez and Scoppa saw a burgundy Hyundai pull up to Bennett's vehicle on the driver's side. Bennett got out of his vehicle and entered the passenger side of the Hyundai and remained there for less than two minutes. Bennett and defendant's conversation was audio-taped, however, portions were difficult to understand. After Bennett left the Hyundai, defendant walked to the side door of the restaurant, which was locked. Defendant returned to the Hyundai and exited the restaurant parking lot.

Martinez contacted Irwin to assist in conducting a motor vehicle stop for identification purposes. Irwin saw the Hyundai cross Route 30 and stop at Hometown Video. Defendant went inside a video store and after exiting the store, continued eastbound on Route 30. Irwin made the requested motor vehicle stop at an apartment complex. This provided Martinez with the vehicle registration and the name and address of the driver.

Martinez then met Bennett to retrieve the cocaine and asked general questions. Martinez determined after this first transaction that Bennett was being "short changed." Instead of receiving half an ounce, which is equivalent to 14.18 grams, Bennett received only 8.38 grams.

Second Controlled Purchase

On August 13, 2003, Bennett was given $500 to purchase cocaine from defendant. The transaction took place at Bargain Brakes and Muffler on Route 30 and 206 during daylight hours. After Bennett arrived at the location, investigators noticed the same vehicle drive up with defendant. Bennett and defendant met briefly outside the establishment. Then Bennett left the location and met the police officers where he turned over 6.73 grams of cocaine.

Third Controlled Purchase

On August 18, 2003, Bennett arranged once again to purchase cocaine from defendant. Defendant agreed to meet Bennett at the Blockbuster Video parking lot. Bennett received $500 and instructions to purchase cocaine. Defendant arrived at the location in the same vehicle as used in the prior transactions. Bennett approached defendant, who had exited his vehicle. They both went into defendant's vehicle. In less than a minute, Bennett exited and met with investigators. He turned over 7.32 grams of cocaine.

Fourth Controlled Purchase

On September 11, 2003, Bennett and defendant met at the Bargain Brakes and Muffler store. Bennett was given $1,900 by the investigators. Defendant entered the shop where Bennett was waiting. Their interaction lasted between three and four minutes. Bennett left and later turned over to investigators 18.85 grams of cocaine. According to Investigator Zulawski, $1,900 should have purchased "like an ounce and a half" of cocaine, or about 43 grams.

Pre-trial Motions

Defendant was arrested and indicted. Prior to trial, defendant moved to suppress evidence of his identity. The motion was denied. Defendant moved unsuccessfully for reconsideration.

Defendant moved for a Driver hearing to determine the admissibility of tape-recorded conversations between defendant and Bennett. In preparation for this hearing, defendant and his counsel came to the prosecutor's office to hear the tapes. Scoppa was present to operate the tape recorder and protect the tapes. While the tapes were being played, defendant spoke to both Scoppa and counsel and sometimes to Scoppa directly. Specifically, while reviewing the August 18, 2003 tape, Scoppa had marked a portion of the tape as "inaudible." Defendant corrected Scoppa, informing him that he had said "cradle to the grave" and made a reference to "Jet Lee [sic]." According to Scoppa, there were several other instances where defendant made corrections, saying that "no, I didn't say this I said that." Scoppa testified that he did not ask defendant questions. After defendant made a few comments, counsel advised defendant not to say anything.

Scoppa identified the voices as those of defendant and Bennett. Scoppa testified that some sections of the transcript had to be labeled "inaudible" because he could not understand what was being said on the tape. The total running time of the audiotapes was twenty-eight minutes. The judge admitted the tapes subject to specific revisions. The judge also denied a motion to suppress statements made by defendant while at the prosecutor's office in preparation for the Driver hearing.

Prior to the beginning of trial, the Assistant Prosecutor noted that Bennett would not be available to testify. According to the Assistant Prosecutor, her office had been "making every effort to get him here [in court]," but had so far been unsuccessful. The Assistant Prosecutor requested an adjournment in order to make further attempts at contacting Bennett. The judge held an evidentiary hearing in order to hear from Martinez regarding the steps that had been taken in contacting Bennett.

Martinez testified that three months earlier, he met with Bennett at police headquarters. Bennett told Martinez that he would be moving to North Carolina soon. Martinez attempted to serve Bennett with a subpoena and stopped by Bennett's place of employment. The employer said that Bennett picked up his last check and had not been seen or heard from since. Bennett's home had been sold. Martinez made numerous unsuccessful attempts at contacting Bennett, however, was once able to reach him by telephone. During that telephone call, Bennett informed Martinez that unless Martinez wanted to come down and find him, he was not coming up to New Jersey.

At the hearing, defendant objected to the State's request for an adjournment and sought to dismiss the indictment with prejudice for prosecutorial misconduct for withholding the information regarding Bennett. The judge denied the adjournment, but refused to dismiss the indictment, finding no prosecutorial misconduct.

During the trial, Martinez testified about his multiple efforts to contact Bennett. The following day, the Assistant Prosecutor informed the judge that she had learned the night before, from a defense witness, that informant was residing in Mays Landing. Thus, the Assistant Prosecutor requested that defendant be prohibited from asking the jury to draw an adverse inference regarding the non-appearance of Bennett because a defense witness had knowledge of informant's whereabouts. A second evidentiary hearing was then held outside of the presence of the jury.

Sergeant Samuel Cucciniello testified that he had spoken with defense witness Maria Quintella Oritz the night before. Ortiz indicated that she had known defendant for approximately a year and a half and also was familiar with Bennett through his ex-girlfriend, Linda Rodriguez. Ortiz had knowledge that Bennett never moved to North Carolina, but instead was residing in Mays Landing. Ortiz relayed this information to defendant. After speaking with Ortiz, Cucciniello spoke with Rodriguez. Rodriguez confirmed that Bennett resided on Carter Court in Mays Landing.

Based on this evidence, the Assistant Prosecutor requested the reopening of the State's case in order to locate Bennett. Counsel objected. Defendant moved for an adverse inference or Clawans charge. The judge denied the adjournment and denied the State's motion to reopen its case. However, the judge decided to instruct the jury that it "could" adversely infer the testimony of a witness not produced. The judge gave a jury charge instructing the jury that an adverse inference should not be held against the State if they found that: there was a satisfactory explanation for Bennett's non-production; or if Bennett was equally available to both parties.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN ITS GIVING OF A CLAWANS JURY CHARGE THAT IMPROPERLY, AND CONFUSINGLY, LEFT UP TO THE JURY WHETHER OR NOT TO DRAW AN ADVERSE INFERENCE AGAINST THE STATE FOR FAILING TO PRODUCE THE INFORMANT AT TRIAL (Not Raised Below).

We disagree.

This matter is raised for the first time on appeal. Therefore, defendant must establish plain error pursuant to Rule 2:10-2, i.e., error "clearly capable of producing an unjust result" and "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. Macon, 57 N.J. 325, 336 (1971).

In any situation where an adverse inference charge is appropriate, the court must determine whether, in fact, an adverse inference may be drawn from a party's failure to call a witness. State v. Clawans, 30 N.J. 162, 172 (1962). Generally, the failure of a party to produce a witness for trial will raise "a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. However, such an inference arises only under certain conditions and the inference is always open to destruction by explanations other than a party's fear of exposure. Id. at 170-71. Furthermore, a court should not begin with an assumption that the non-production of a witness is favorable to either side and that an adverse inference must arise against either. State v. Velasquez, 391 N.J. Super. 291, 308 (App. Div. 2007). Thus, for an adverse inference to be drawn, "it must appear that the person was within the power of the party to produce and that [the person's] testimony would have been superior to that already utilized in respect to the fact to be proved." Clawans, supra, 38 N.J. at 171. Furthermore, the failure to produce "a witness available to both parties has been said to preclude the raising of an inference against either." Ibid. However, the court should take into consideration "whether one party has superior knowledge of the identity of the witness and what testimony might be expected from him, as well as the relationship of the witness to the parties." Id. at 171-72.

We have succinctly summarized the factors trial courts should determine on the record prior to allowing such an inference:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give;

(2) that the witness is available to that party both practically and physically;

(3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and

(4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986). See State v. Scott, 236 N.J. Super., 264, 268 (App. Div. 1989) (holding that the judge properly denied defendant's request for an adverse inference charge where witness "would not add anything new to the evidence and was as available to defendant as he was to the State").]

Finally, when an error in an adverse jury charge is raised, the charge must be read as a whole to determine whether error was committed. State v. Wilbely, 63 N.J. 420, 422 (1973).

Here, from our careful review, we conclude that the jury charge, taken as a whole, was not misleading or confusing. The jury found that Bennett was equally available to both parties. Obviously, this finding was by the beyond a reasonable doubt standard. This standard imposed a higher burden on the State than if the decision had been made by the judge, which is the usual procedure. We find no error, let alone, plain error.

Defendant also contends:

THE COURT ERRED IN RULING THAT THE TAPES OF THE RECORDED CONVERSATIONS BETWEEN DEFENDANT AND THE CONFIDENTIAL INFORMANT WERE ADMISSIBLE UNDER STATE V. DRIVER, WHERE THE TAPES WERE SUBSTANTIALLY INAUDIBLE AND OF SUCH POOR QUALITY, AND WHERE THERE WAS NO TESTIMONY AS TO THE ACCURACY OF THE RECORDED CONVERSATIONS AND THE PROPER USE OF THE WIRE TRANSMITTER.

A. The Tapes Should Have Been Excluded Where They Were Substantially Inaudible.

B. The Tapes Should Have Been Excluded Where There Was Insufficient Evidence That The Tapes Were An Accurate Reflection Of The Conversation Recorded.

C. The Tapes Should Have Been Excluded Given the Lack of Evidence That There Was A "Competent Operator" of the Wire Transmitter.

We reject these arguments.

The trial judge found that the recording device was capable of taking the testimony; the operator knew how to use the equipment; the recordings were authentic and correct subject to the changes made by the court; there was a showing that changes, additions or deletions were not made; speakers had been identified in the transcript; the testimony elicited was voluntarily made and the manner of the preservation of the recording has been established. These are the findings that are required pursuant to State v. Driver, 38 N.J. 255, 287 (1962). See State v. Harris, 298 N.J. Super. 478, 486 (App. Div.), certif. denied, 151 N.J. 74 (1997).

We have held that, if a tape is partially intelligible and has probative value, then it is admissible even though substantial portions are inaudible. State v. Cusmano, 274 N.J. Super. 496, 501 (App. Div. 1994); (quoting State v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)). The question of admissibility of the tape is a matter of discretion for the trial court. Zicarelli, supra, 122 N.J. Super. at 240. See Driver, supra, 38 N.J. at 288.

Here, the tapes were only partially audible. However, inferences can be drawn from the audible portions of the taped conversations that Bennett and defendant were arranging illicit drug buys.

We also note that Martinez and Scoppa testified at trial about the conversations between Bennett and defendant, which they overheard. Therefore, independently of the tapes, there was evidence of the subject matter of these conversations. Thus, we conclude that the judge did not abuse his discretion in admitting the tapes into evidence.

Defendant also contends:

THE TRIAL COURT ERRED IN ADMITTING INCRIMINATING STATEMENTS MADE BY THE DEFENDANT THAT WERE OVERHEARD AT THE PROSECUTOR'S OFFICE, WHEN DEFENDANT AND HIS ATTORNEY WENT TO LISTEN TO THE SURVEILLANCE TAPES IN THE PROSECUTOR'S POSSESSION, IN ORDER TO PREPARE FOR THE DRIVER HEARING.

We disagree.

We begin our analysis by noting that the spontaneous statements were admissible by virtue of N.J.R.E. 803(c)(25), as a declaration against interest. We reject the arguments that the statements were not admissible because they were made during the course of a "possible plea bargain." N.J.R.E. 410 "provides for the inadmissibility of 'any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn.'" State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996).

Here, the record shows that, after defendant made the spontaneous comments, there was a discussion out of defendant's presence between Scoppa and defense counsel. The discussion centered on the possibility of defendant becoming a confidential informant for the police. Therefore, the comments were not made "during plea negotiations."

Defendant also argues that the admission of defendant's statements violated his right against self-incrimination pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). However, defendant was not in custody at the time he made the statements. Moreover, Scoppa testified that he did not ask defendant any questions. Instead, defendant's statements regarding the tape were spontaneous and not in response to any police questioning. See State v. Marks, 201 N.J. Super. 2514, 529 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Defendant's voluntary statements were thus properly admitted at trial. State v. Harvey, 151 N.J. 117, 221-22 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

Defendant also argues that pursuant to N.J.R.E. 403, Scoppa's testimony regarding defendant's comment should have been excluded. The Rule provides: "evidence, otherwise admissible, may nevertheless be excluded if the judge, in his discretion, finds that its probative value is substantially outweighed by [undue prejudice] . . . ." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2008). The factors in favor of exclusion must "substantially" outweigh the probative value of the evidence at issue. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Judged against that standard, we find no abuse of discretion in not excluding the evidence pursuant to N.J.R.E. 403. The judge found that any prejudice did not substantially outweigh its probative value regarding identity and consciousness of guilt. Finally, we reject defendant's argument, raised without any supporting legal theory, that the judge's decision to admit the statements was patently unfair and against public policy. Based on the lack of a substantive challenge and the discussions above in favor of admissibility, we hold that it was not "unfair" nor against public policy to admit defendant's statements.

Defendant also contends that:

THE TRIAL COURT ERRONEOUSLY INSTRUCTED DEFENSE COUNSEL THAT HE COULD NOT ARGUE TO THE JURY ON SUMMATION THAT THE STATE HAD FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT, BASED ON THE AUDIBILITY PROBLEMS WITH THE TAPES.

The judge rejected the defense argument that because portions of the tapes were allegedly inaudible that the State had not met its burden of proving defendant's guilt beyond a reasonable doubt. The judge ruled that defense counsel could argue to the jurors that if they found the tapes to be inaudible or to not be probative of the issue, then they should not give the tapes any weight. However, defense counsel could not take the leap to argue that if the tapes were no good it follows that the State did not prove its case beyond a reasonable doubt. The judge's rationale was that the tapes were only corroborative evidence of the transactions between defendant and informant, explaining that the State had four witnesses who testified that they: overheard the Bennett conversations, or watched the drug transactions occur, or saw Bennett come back with the drugs. Thus, the judge found that as it was possible for the tapes to be given no weight and for the jury to still convict the defendant, the defendant's presentation of the law would have been improper. We agree with the judge's rationale and thus, no error was committed.

Defendant contends that:

THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION TO SUPPRESS THE EVIDENCE OF DEFENDANT'S IDENTITY OBTAINED FROM THE STOP OF HIS VEHICLE, WHERE THE POLICE STOPPED DEFENDANT ON A PRETEXTUAL BASIS AND BEFORE THEIR INVESTIGATION HAD CONFIRMED ANY CRIMINAL ACTIVITY.

Defendant's argument that the stop was pretextual would only be relevant if there was no reasonable and articulable suspicion allowing for the stop. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). As shown above, there was such suspicion in this case based on Martinez's investigation of the defendant. Thus, Irwin did not need any further reason such as an illegal lane change to justify the stop. Therefore, any argument that the stop was based on pretext fails.

Furthermore, even if there was not a reasonable and articulable suspicion for the motor vehicle stop, unlike physical evidence and statements, defendant's identity cannot be suppressed. Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S. Ct. 3479, 3483-84, 82 L. Ed. 2d 778, 786 (1984). Thus, suppression of defendant's identity is not an appropriate remedy.

Defendant also contends that:

DURING HER SUMMATION, THE PROSECUTOR IMPROPERLY TOLD THE JURORS, CONTRARY TO THE TESTIMONY AT TRIAL, THAT THERE WAS NO EVIDENCE THAT THE INFORMANT HAD ACCESS TO THE HIDDEN WIRE TRANSMITTER.

During the trial, defense counsel had the opportunity to question Martinez, resulting in testimony that the wire was small enough to be worn on the body and was accessible to the informant. The prosecutor, however, made the following statements on summation:

The defense also made comments about the location of the transmitter and that because the informant was able to touch the transmitter it was on purpose and it was to cloud the hearing of the officers or to cloud the tape recording because he knew he was being tape recorded. But the defense is assuming they knew where the transmitter was. They are summing - they are assuming the informant had access to it, and I believe Mr. Jacobs kept patting here (indicating) as if he thought it was right here in the breast pocket.

You have to assume that's where it was and that the informant had access to it. But you can't do that because you don't know where it was, and neither does [defense counsel].

Defense counsel objected. The judge ruled that there were reasons to keep the location of the wire on the informant secret and that there was "no testimony about where [the wire] was so in that light lets move on." However, it was factually inaccurate for the prosecutor to state that defense is "assuming the informant had access to [the wire]." It was part of the record that Bennett had access.

A prosecutor shall not make any assertions which are not legally and factually accurate and they may only comment on evidence revealed during the trial and any reasonable inferences made therefrom. State v. Smith, 167 N.J. 158, 178 (2001). The Supreme Court has further noted that we have "not hesitated to reverse convictions where we have found that the prosecutor in his summation over-stepped the bounds of propriety and created a real danger of prejudice to the accused." Ibid. (quoting State v. Johnson, 31 N.J. 489, 511 (1960)).

However, the jury was aware that the prosecutor's argument is not evidence. Therefore, the erroneous comment by the prosecutor does not warrant a reversal.

Defendant also contends:

THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT GIVEN THE STATE'S EGREGIOUS FAILURE TO ADVISE DEFENDANT, UNTIL THE FIRST DAY OF TRIAL, THAT THE INFORMANT HAD APPARENTLY FLED THE JURISDICTION AND WOULD NOT BE PRODUCED FOR TRIAL.

We disagree.

Even assuming that this was prosecutorial misconduct for argument sake, a dismissal of the indictment was not appropriate where the lesser penalty of an adjournment was available to protect defendant's fair trial rights. See State v. Marshall (I), 123 N.J. 1, 134 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Defendant is arguing that it was prejudicial to find out the day of trial that informant was not going to appear. However, when offered an adjournment by the judge in which the State would be afforded another opportunity to produce informant, defendant declined. An adjournment would have been appropriate here where what was being complained of was the lack of production of a witness and the remedy being offered was additional time in which to find and produce the witness. Such a remedy would have adequately protected defendant's fair trial rights and was in fact offered by the trial judge.

Furthermore, as opposed to Farquharson, here there was not "a clear lack of any good-faith diligence on the prosecutor's part" nor a "total lack of effort." State v. Farquharson, 280 N.J. Super. 239, 247, 252 (App. Div.), certif. denied, 142 N.J. 517 (1995). See discussion of pre-trial motions supra, outlining the efforts made by the State in producing Bennett. Therefore, no error was committed.

Defendant also contends that:

DEFENDANT'S SENTENCE SHOULD BE VACATED WHERE (A) AN EXTENDED TERM WAS IMPROPERLY IMPOSED, AND (B) THE SENTENCING COURT ENGAGED IN A DEFICIENT "BALANCING" ANALYSIS, WHICH RESULTED IN AN EXCESSIVE SENTENCE.

Specifically, defendant argues that his sentence should be vacated because (a) an extended term was improper, and (b) the judge engaged in a deficient "balancing" analysis. We disagree.

This was a mandatory extended term pursuant to N.J.S.A.

2C:43-6f. State v. Thomas, 188 N.J. 137, 151 (2006). If there is a finding of a prior conviction, pursuant to N.J.S.A. 2C:43-6f, then the judge has no discretion to reject the extended term application. Id. at 150.

Defendant also contends that:

THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE TWO DEFENSE EXHIBITS--THE TWO ELECTRONIC SURVEILLANCE APPLICATIONS FILED BY POLICE DURING THEIR INVESTIGATION--WHICH CONTAINED PRIOR INCONSISTENT STATEMENTS BY POLICE.

EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES CUMULATIVE ERROR SUFFICIENT TO WARRANT REVERSAL. (NOT RAISED BELOW)

We determine that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The conviction and sentences are affirmed.

State v. Driver, 38 N.J. 255 (1962).

State v. Clawans, 38 N.J. 162 (1962).

(continued)

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A-6021-05T4

March 13, 2009