STATE OF NEW JERSEY v. KELLY DE LA ROSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0815-07T40815-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELLY DE LA ROSA a/k/a SUSANO K.

DE LA ROSA a/k/a KELLY KEELI DE LA

ROSA a/k/a SUSANO DELAROSA,

Defendant-Appellant.

___________________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-0561.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kelly De La Rosa, a/k/a Susano K. De La Rosa, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the single count contained in Bergen County Indictment No. 06-03-0561, first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1). Defendant was sentenced to a custodial term of fifteen years, along with a five-year period of parole ineligibility. Appropriate financial penalties were also imposed.

On appeal, defendant raises the following issues for our consideration:

POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.

POINT II: THE STATE DEPRIVED THE DEFENDANT OF A FAIR TRIAL WHEN IT PRESENTED EXPERT TESTIMONY THROUGH DETECTIVE DARGAN WHICH WENT BEYOND LAY OPINION TESTIMONY AND FOR WHICH THE STATE DID NOT HAVE THE DETECTIVE QUALIFIED AS AN EXPERT WITNESS. (Partially raised below)

POINT III: THE STATE'S EXPERT IMPROPERLY TESTIFIED TO THE ULTIMATE ISSUE OF GUILT, A MATTER WHICH INVADED THE PROVINCE OF THE JURY. (Not raised below.)

POINT IV: VARIOUS TRIAL TACTICS BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially raised below.)

A - Asking the Defendant if the Officers were Lying

B - Clawans Violations

C - The Prosecutor's Overzealous Behavior Demeaned and Belittled the Defendant

POINT V: THE COURT ERRED WHEN IT FAILED TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF UNLAWFUL POSSESSION OF COCAINE NOTWITHSTANDING THE DEFENDANT'S REQUEST NOT TO HAVE THE CRIME CHARGED.

POINT VI: THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

We have considered these arguments in light of the record and applicable legal standards. We remand the matter for further proceedings regarding the denial of defendant's motion to suppress.

I.

Defendant argues that his motion to suppress evidence seized from his car without a warrant should have been granted because: "[t]he search exceeded the scope and authority of the consent search by improperly invading the integrity of the structure of the vehicle"; "the State failed to establish that [he] voluntarily waived his right to be present at the scene of the car when being searched and failed to establish that [he] had the opportunity to withdraw consent . . . because he was not present at the vehicle"; the form used to obtain his consent "did not properly advise [him] of his right to withdraw consent at any point during the course of the search . . ."; and because defendant's "detention constituted the functional equivalent of an arrest[,]" and the State lacked probable cause. We consider these points in light of the salient testimony adduced at the pre-trial evidentiary hearing on defendant's motion.

On September 22, 2005, Detective Gerard Dargan of the Bergen County Prosecutor's Office was assigned to a multi-jurisdictional task force that "target[ed] criminal activity in the Bergen County/Hudson County area." He was contacted by an informant, who advised that defendant and Omar Ferrer would be flying from Newark Airport to Georgia that day. The informant had been "reliable" in the past, and his information had led to "a large number of cases" involving "large scale distributions of cocaine, multiple kilos, arrests and large sums of . . . currency." The informant told Dargan that the men would be "picking up a . . . 2001 [white] Hyundai Santa Fe" with Pennsylvania registration. The informant further told Dargan that the men would be driving back through New Jersey during the evening of September 23, and "was fairly certain that the vehicle would be crossing the George Washington Bridge." The informant told Dargan that if Ferrer was not in the Santa Fe, he would be close by in another vehicle. The cocaine was being transported for delivery to a third man, Pedro Trinidad.

The informant further told Dargan that the car would contain twenty-five to thirty kilograms of cocaine in a compartment "underneath the rear hatchback area . . . ." Dargan contacted agents of the Drug Enforcement Administration (DEA), who confirmed that defendant and Ferrer were ticketed on a flight to Georgia leaving that evening; each had purchased a one-way ticket. Dargan checked the criminal histories of all three men; Ferrer had no record, Trinidad had a prior narcotics arrest, as did defendant. A task force briefing was held the morning of September 23, and approximately forty law enforcement officers were stationed along various highways leading to the George Washington Bridge, and the Lincoln and Holland Tunnels.

At approximately 6:41 p.m., Fort Lee detective Alex Lorenzo, a member of the task force, was stationed in plain clothes "[a] couple of hundred feet" from the George Washington Bridge. Lorenzo's partner observed the Santa Fe driving on the shoulder of the road attempting to pass traffic that was "bumper-to-bumper." The vehicle picked up speed and passed Lorenzo, who radioed to another officer closer to the bridge. As the Santa Fe neared that officer, defendant, who was driving the vehicle, tried to re-enter the traffic lanes, but was ordered to the side of the road.

Lorenzo advised defendant that he was stopped because he had committed a motor vehicle offense, and checked defendant's license and registration. The registration "c[ame] back [as] . . . not on file in Pennsylvania." Lorenzo asked defendant if he had anything in the car, and he responded that he did not. Lorenzo asked if defendant would consent to a search of the car, specifically telling defendant that he had the right to deny his consent. Defendant consented.

However, because of the traffic conditions and the location, Lorenzo did not immediately search the Santa Fe. In looking through the window of the vehicle, however, he observed a "short-frequency" two-way radio that led him to believe defendant may have been in contact with someone nearby. Lorenzo detected the heavy odor of air freshener emanating from the car, something that, based upon his training and experience, Lorenzo knew was used to mask the odor of narcotics. Lorenzo asked defendant if they could continue the search at the prosecutor's office in Paramus because of the unsafe conditions on the roadway, and defendant agreed. Defendant and the Santa Fe were transported to those offices.

Dargan interviewed defendant at the prosecutor's office after reading him his Miranda rights from a card that he later presented to defendant. Defendant stated that he understood his rights, that he was willing to speak to Dargan, but that he would not sign the card. Dargan read defendant a consent-to-search form that provided, among other things, that defendant was consenting to "a complete search" of the Santa Fe, "including all compartments, containers, papers and effects" in the car. The form explicitly indicated that defendant could "refuse to give [his] consent," and Dargan told him that he could stop the search after he consented "at any time." Defendant refused to sign the form, but told Dargan he "could look in the car," and that he would answer his questions.

Dargan left the interview room and commenced a search of the Santa Fe. He saw the two-way radio and a spray bottle of Fabreeze air freshener in the car. After opening the rear hatchback, Dargan immediately saw "a hinge that was . . . an after-market addition to the vehicle, . . . underneath the rug." He believed it was "a trap." Although he was unable to open the trap, Dargan was able to use "a straight bow" to lift up "the metal portion of the vehicle," and he saw "rectangular bricks of what [he] believed to be cocaine." He also "was overwhelmed with the . . . smell . . . [of] detergent." Dargan knew from his experience and training that detergent was frequently used to mask the smell of narcotics.

With great effort, Dargan and other officers were able to pry open the trap; he discovered "30 kilograms of suspected cocaine, which were covered with granulated detergent." Defendant "acted shocked, [and] stated that he didn't know how the cocaine got in his car and who put it there, or how a trap -- a hidden compartment was in his car."

After considering Dargan's and Lorenzo's testimony which he found to be credible, the judge concluded that "the actual events regarding . . . defendant evolved in close conformity with the scenario and expected schedule provided by the confidential informant[,]" who, the judge found had "provided reliable information to various law enforcement agencies" in the past. He further determined that "the authorities had ample, reasonable and articulable suspicion warranting a motor vehicle stop, notwithstanding the separate motor vehicle violation."

The judge further found defendant "gave verbal consent to search the vehicle." He determined this was actually reasonable, since defendant believed the police "would not uncover the trap." Defendant was advised that "he could refuse to . . . consent . . . , and he was always aware that he could so refuse." Defendant's consent was "freely and intelligently given . . . ." The judge denied defendant's motion to suppress.

We reject any claim by defendant that the initial stop of defendant's car was not justified. "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed.'" State v. Amelio, 197 N.J. 207, 211 (2008) (quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002)) (emphasis added); see also State v. Rodriguez, 172 N.J. 117, 126-127 (2002). Whether the State has demonstrated a valid investigatory stop requires the judge to consider "the totality of the circumstances" surrounding the encounter. State v. Elders, 192 N.J. 224, 247 (2007); State v. Pineiro, 181 N.J. 13, 27 (2004) (quotation omitted). "In some circumstances an informant's tip may assist the court in evaluating whether the police officer had reasonable suspicion to stop a person." Amelio, supra, 197 N.J. at 212. "The anonymous informant's 'veracity,' 'reliability' and 'basis of knowledge' are 'relevant in determining the value of his report.'" Ibid.

As the motion judge noted, Lorenzo had a reasonable and articulable suspicion to stop the Santa Fe based upon the fact that defendant had committed a motor vehicle violation, and based upon the strength and corroboration of the reliable, confidential informant's tip. These findings are well-supported by the record. See State v. Locurto, 157 N.J. 463, 472-73 (1999).

Defendant does not expressly challenge the judge's findings regarding the consent initially given to the officers; they too are amply supported by the record and the credibility determinations made by the judge. Ibid. In turn, they fully support the legal conclusion that defendant's consent was voluntarily given, with full knowledge of the right not to consent and to withdraw consent at any time. See State v. Domicz, 188 N.J. 285, 305-08 (2006).

Instead, defendant raises a number of more nuanced arguments, none of which were raised below. He contends that his "detention constituted the functional equivalent of an arrest" without probable cause. Even though defendant consented to accompany the officers to Paramus, Dargan and Lorenzo acknowledged that after the initial stop on the roadway, defendant was not free to leave. The judge below specifically did not conclude that the officers possessed sufficient probable cause to have arrested defendant at the time of the initial encounter on the road, nor did he determine that defendant was in fact under arrest.

Neither party addressed, and the judge did not consider, the consequences, if any, that defendant's "functional[ly] equivalent" arrest might have had upon the ultimate search of his car, particularly in light of the voluntary consent he subsequently gave to Dargan at the prosecutor's office in Paramus. Under the facts presented in State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000), "we . . . conclude[d] that [the defendant]'s consent to search was sufficiently an act of free will to purge the original taint emanating from [his] unlawful detention." However, we distinguished the facts in that case from those present in State v. Dickey, 152 N.J. 468 (1998). Chapman, supra, 332 N.J. Super. at 465. In Dickey, supra, the Court suppressed evidence seized from an automobile "that resulted from [an] illegal detention[,]" 152 N.J. at 472, despite the defendant's consent later given at the police station. Id. at 473.

We are also unable to completely evaluate defendant's other arguments because the issues were never developed below. He contends that "[t]he search exceeded the scope and authority of the consent search" when Dargan pried open the trap, and that there was insufficient proof that he "voluntarily waived his right to be present" when the car was actually searched, noting the lack of any provision regarding the right to be present in the consent form Dargan read to defendant at the prosecutor's office.

In State v. Santana, 215 N.J. Super. 63, 71-72 (App. Div. 1987), we were required to decide "whether the scope of the search exceeded the permission given by [the] defendant[,]" and whether that "consent [was] vitiated by either of two actions by the troopers: first, separating [the defendant] from the location of the search, and second, allegedly invading the structural integrity of the vehicle, if such invasive search were not included within the scope of the consent." While we determined the search of the area behind the door panels of the car was valid, we remanded the matter to determine "whether [the defendant] implicitly or explicitly waived his right to revoke his consent when he agreed that the search to which he had previously consented could be carried out while he waited in the holding cell." Id. at 75.

In this case, the motion judge never considered whether defendant's voluntary consent to search was vitiated by the subsequent actions of the officers in prying open the trap because it exceeded the scope of defendant's consent. Indeed, there is little in the record to explain what if anything transpired after defendant verbally gave Dargan his consent and the actual search. We cannot discern whether any facts exist that demonstrate defendant explicitly or implicitly limited the scope of his consent or whether the State's actions amounted to an unjustified extension of the scope of the search to which defendant consented. Likewise, there are no facts in the record regarding defendant's location when the actual search was conducted, and, if he was absent, whether he explicitly or implicitly waived his right to revoke his consent.

The State has essentially conceded in its brief that these issues, not having been raised by defendant below, were simply not addressed by the witnesses, and has urged us to remand the matter as necessary. We agree that a remand is required so that the judge may consider the issues raised and determine whether defendant's motion to suppress should still be denied. We leave the extent and conduct of the remand hearing to the sound discretion of the judge.

We have addressed the remaining issues raised on appeal in the event the judge concludes that defendant's motion to suppress should still be denied.

II.

At trial, in addition to Dargan and Lorenzo, the State produced a number of other officers involved in the stop of the Santa Fe at the entrance to the George Washington Bridge and the search of the vehicle subsequently. It was also revealed that defendant had purchased the Santa Fe at the beginning of September and had already logged more than three thousand miles on the vehicle in just a few weeks.

The manager from an Eckert drug store in the metropolitan Atlanta area identified a register receipt found in defendant's car as having come from the store, and reflecting a purchase made on September 22. One of the items purchased was a box of latex gloves that was found in defendant's car when searched.

A receipt for airport parking at Hartsfield International Airport in Atlanta was also found in the Santa Fe. It revealed that the car had been parked there on September 19, and removed on September 22. A representative of the airlines testified that defendant had flown from Atlanta to LaGuardia Airport on September 19, and, on September 21, purchased two one-way tickets back to Atlanta for a flight on September 22.

In addition to several character witnesses, defendant testified on his own behalf. Although he lived in the Bronx, he claimed he intended to relocate to Lancaster in hope of securing a better job. Defendant claimed that he was driving to Miami to visit cousins when he was told that his daughter, who lived with her mother in New York, had taken ill. He decided to park the Santa Fe at the Atlanta airport and fly home to be with her. The child recovered, and defendant flew back to retrieve his car. Omar Ferrer, defendant's friend, was in New York and agreed to fly back to Atlanta with him; Omar claimed he had friends there. When the two men arrived at the airport in Atlanta, they separated and defendant had not seen Omar since.

Defendant claimed he had trouble starting the Santa Fe when he returned to the airport parking lot; he enlisted the help of someone who "jumped" the car. Defendant bought the box of latex gloves because he anticipated he might have further car trouble. Defendant further explained that the "walkie-talkie" in the car was his daughter's. Defendant had no idea how the cocaine or the trap compartment came to be in his car.

(a)

Before the jury, Dargan provided extensive testimony regarding his experience and training in the field of narcotics investigations, though the State never proffered him as an expert witness. Dargan described his discovery of the compartment that housed the cocaine ultimately seized. Without objection, he was asked about the various forms such secret compartments may take, the operation of this particular "trap," the fact that it was "sophisticated," and that it may have cost between "$4,000 and $5,000" to install, an estimate he arrived at by "speaking with informants . . . ." On cross-examination, defense counsel questioned Dargan regarding the trap. On re-direct, Dargan testified extensively as to the structure of drug-distribution organizations and their method of operations.

At limited points during Dargan's testimony, defendant objected that the prosecutor was posing leading questions, and that some of the re-direct testimony was beyond the scope of cross-examination. However, at the very end of re-direct, when the prosecutor asked Dargan, "Have you known persons involved in the trafficking of drugs to use a car registered in their own name?," defense counsel objected, claiming Dargan was "not an expert." The judge sustained defendant's objection.

Defendant claims he was denied a fair trial because Dargan was permitted to testify as an expert without properly being qualified, because his testimony improperly buttressed the testimony of the State's expert witness, Lieutenant Eric Baum, whose subsequent testimony we discuss below, and because Dargan's answer regarding knowledge gained from "informants" violated defendant's Sixth Amendment right to confrontation, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We reject these claims.

We disagree with the State's contention that Dargan's testimony was in the nature of permissible lay opinion. N.J.R.E. 701. It was not. Dargan expressed a number of opinions that regarded "subject matter that [wa]s beyond the ken of the average juror . . . ." State v. Jenewicz, 193 N.J. 440, 454 (2008). However, we also agree with the State that any error was harmless.

In State v. Kittrell, 279 N.J. Super. 225 (App. Div. 1995), we considered a similar situation. There, the State's fact witness was permitted to testify about the use of beepers by those engaged in narcotics trafficking. Id. at 235. We observed that "the detective's testimony exceeded the bounds of proper lay opinion testimony and crossed over into the realm of expert testimony." Id. at 236. However, we deemed any error to be harmless because the detective had extensively detailed his experience and training, providing "enough evidence . . . to qualify [him] as an expert in this area . . . ." Ibid.

Here, Dargan testified extensively regarding his experience and training in the field of narcotics investigations. He undoubtedly would have qualified as an expert if proffered. Moreover, defendant failed to object to much of the evidence, specifically questioned Dargan about some of it during cross-examination, and never argued that Dargan's testimony was cumulative of Baum's or otherwise improperly corroborated Baum's subsequent testimony. In short, any error in allowing Dargan to testify as an expert was harmless beyond a reasonable doubt. See State v. Macon, 57 N.J. 325, 338 (1971).

Dargan's single answer regarding information that he received from informants was clearly impermissible hearsay and denied defendant his right to confrontation. See State v. Bankston, 63 N.J. 263, 268-73 (1973) (holding that detective's recitation before the jury of information he received from an informant was hearsay and prejudicial error). However, the reference was fleeting and had little relevance to the State's proofs regarding the essential elements of the crime. In the context of the entire trial, we do not think this single reference to information supplied by informants was "clearly capable of producing an unjust result," Rule 2:10-2, and it does not warrant reversal.

(b)

For the first time on appeal, defendant lodges two objections to the expert testimony offered by Baum. Regarding the amount of cocaine seized, the prosecutor asked Baum whether "such an amount [wa]s absolutely always possessed with the intent to distribute?" Baum responded,

This amount of cocaine . . . is wholesale amount, not retail amount. This amount is clearly for being resold and distributed not for personal use.

Defendant contends "[t]he State's question and the expert's answer clearly invaded the province of the jury's decision[-] making process . . . ."

In explaining to the jury how cocaine is imported into the United States, and that Atlanta had become a major hub for importation along the eastern seaboard of the United States, Baum referred to "intelligence that [wa]s gathered from sources such as the [DEA]." Non-specific references to this "intelligence" were repeated in the context of two other answers Baum gave regarding drug distribution routes in the United States. Defendant asserts that Baum's references were hearsay, "testimonial," and their admission violated his Sixth Amendment right to confrontation. See Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. Since defendant failed to object to the testimony, we must consider whether admission of this evidence amounted to plain error. See State v. Reeds, 197 N.J. 280, 298 (2009) ("[W]hen counsel fails to object to offensive testimony, we . . . apply the plain error standard of review, meaning that the error must 'have been clearly capable of producing an unjust result.'") (quoting R. 2:10-2)). We conclude Baum's testimony did not amount to plain error.

Regarding the contention that Baum's opinion invaded the province of the jury, defendant misconstrues our precedent. In Reeds, the Court reviewed the contours of permissible expert testimony in narcotics prosecutions and noted, "[W]e carefully permit an expert to express an opinion . . . even when such testimony 'embraces an ultimate issue to be decided by the trier of fact,' N.J.R.E. 704, so long as the probative value of the circumscribed testimony is not substantially outweighed by the risk of causing undue prejudice, N.J.R.E. 403." Id. at 292. Expert testimony regarding "the significance of various quantities" is clearly permissible. Ibid. (quoting State v. Odom, 116 N.J. 65, 81 (1989)). Defendant's first argument regarding the propriety of Baum's testimony provides no basis for reversal.

We agree with the State that Baum's references to intelligence gathered by other government agencies were intended to provide the jury with a basis for his opinions. See N.J.R.E. 703 ("The facts or data . . . upon which an expert bases an opinion . . . may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions . . . upon the subject, the facts or data need not be admissible in evidence.") We have also noted, "However, hearsay is not admissible substantively as establishing the truth of the statement. Rather, it is admissible for the limited purpose of apprising the jury of the basis of the opinion." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002) (quotations omitted), aff'd, 177 N.J. 229 (2003). Therefore, Baum's reference to various intelligence reports as the basis of his opinion was admissible for a limited purpose.

However, if such evidence is admitted for that limited purpose, the jury should be properly instructed regarding the limits upon the use of the evidence. Id. at 480-81. In this case, such an instruction would have been appropriate.

However, we are convinced that admission of the testimony without any special limiting instruction did not amount to plain error. The judge provided the jurors with general instructions regarding expert testimony that clearly impressed upon them their obligation to consider the basis of the expert's opinion and their right to reject any opinion offered by the expert. Additionally, the evidence of defendant's guilt was substantial.

Lastly, defendant's contention that Baum's testimony violated the confrontation clause of the Sixth Amendment and the holding in Crawford is without merit. See R. 2:11-3(e)(2). The hearsay evidence was not testimonial. See State v. Chun, 194 N.J. 54, 147 (2008) ("[T]he essential elements of testimonial evidence are a report of a past event, given in response to police interrogation, with the purpose of establishing evidence that a defendant committed an offense.").

(c)

Defendant next argues that prosecutorial misconduct requires reversal. We disagree.

During cross-examination of defendant, the prosecutor asked defendant whether the "police officers [we]re wrong," or whether "some unknown person" had to have placed the drugs in defendant's car, in order "for [him] to be an innocent man[.]" We do not view these comments to be equivalent to the inappropriate cross-examination we have noted in other opinions. See e.g., State v. T.C., 347 N.J. Super. 219, 237-38 (App. Div. 2002, certif. denied, 177 N.J. 222 (2003) (finding inappropriate the cross-examination of the defendant as to "whether State's witnesses had been lying when they testified against" her).

Also during his cross-examination, after establishing that defendant had not seen Ferrer since they parted in Atlanta, the prosecutor asked if Ferrer was going to be in court to verify "what happened." He also asked defendant if he knew where Ferrer was; he did not. In summation, the prosecutor reminded the jury that defendant "ha[d]n't heard from Ferrarus [sic] since" they were in Atlanta. Also in summation, the prosecutor, referencing defendant's testimony that he intended to relocate to Lancaster, Pennsylvania, and stayed there in a room that he rented, reminded the jury that defendant "ha[d] no receipt, or any identifying information, and no witness here in court." Defendant claims this cross-examination and the summation comments violated the holding in State v. Clawans, 38 N.J. 162 (1962), or improperly shifted the burden of proof to him. We disagree.

There was no adverse inference charge requested or given to the jury. Thus, the case is different from Clawans, and State v. Hill, 199 N.J. 545, 569 (2009), in which the Court held that an adverse inference charge against a criminal defendant inappropriately "lessened" the State's burden of proof. Instead, this case is more like State v. Wilson, 128 N.J. 233 (1992). There, the Court found no impropriety in the prosecutor's comments regarding absent defense witnesses, noting that "[t]he source for the prosecutor's knowledge of the witnesses was defendant himself; and in light of defendant's cross-examination, the absence of the witnesses was conspicuous." Id. at 245. The Court further found that the prosecutor's failure to alert the judge and defense counsel of his intention to comment was harmless error. Ibid.

We also reject defendant's claim that the prosecutor's comments violated the holding in State v. McGraw, 129 N.J. 68, 77-80 (1992). There was no evidence in the record to support an inference that Ferrer was unavailable because of an actual or likely invocation of his Fifth Amendment privilege.

Lastly, defendant argues that the prosecutor denied him a fair trial by "demeaning and belittling [him] before the jury." We have examined the specific instances of the prosecutor's conduct defendant references. While some of the prosecutor's comments may have been improper, when considered in the context of the entire record, they did not deny defendant a fair trial. See State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002) (noting that in determining whether the conduct of the prosecutor requires reversal, "the performance must be evaluated in the context of the entire trial").

(d)

Lastly, defendant argues that the judge erred in "acced[ing] to [his] request not to charge the lesser included offense of simple possession of cocaine." We find the argument to be of insufficient merit to warrant extensive discussion in this opinion. See R. 2:11-3(e)(2).

At trial, the State argued that the charge of simple possession was not justified by the evidence. Defendant expressly told the judge that he did not want the lesser-included charge to be submitted. Contrary to defendant's assertion in his brief, the doctrine of invited error bars his claim on appeal. See State v. O'Carroll, 385 N.J. Super. 211, 233-34 (App. Div.) ("Generally, a defendant cannot request the court to take a certain action, and when the outcome is unfavorable, then '[c]ondemn the very procedure he sought and urged, claiming it to be error and prejudicial.'") (quoting State v. Jenkins, 178 N.J. 347, 358 (2004)), certif. denied, 188 N.J. 489 (2006). Moreover, on the merits of the argument, we agree with the State that possession of thirty kilograms of extremely pure cocaine packaged in bricks did not support any inference that the drugs were possessed for any other purpose than distribution.

III.

Lastly, we consider defendant's argument that his sentence was excessive. He claims that the judge improperly found certain aggravating factors, and failed to find appropriate mitigating factors.

This was defendant's first indictable offense; he had one prior disorderly persons conviction that emanated from a drug arrest approximately one year earlier. The judge found aggravating factors three, six and nine. N.J.S.A. 2C:44-1a(3) (risk of re-offense); (6) (nature and seriousness of defendant's prior record); and (9) ([t]he need [to] deter[]"). He found no aggravating factors.

Given his lack of a prior criminal record, defendant contends that aggravating factors (3) and (6) do not apply, and that the judge should have accorded minimal weight to factor (9). While we question whether a single disorderly persons conviction justifies a finding of aggravating factor (6), it is quite clear that the other two aggravating factors are amply supported by the record. See State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.) (noting that a finding that the defendant was likely to re-offend "was clearly justified" because of the amount of cocaine he possessed, despite "the fact that [he] had no prior record and . . . was an established businessman in his community"), certif. denied, 122 N.J. 386 (1990); State v. Cancel, 256 N.J. Super. 430, 437 (App. Div. 1992) (noting that a finding of need to deter was justified because "[p]eople like defendant who commit serious drug offenses but are not likely to attract police attention because they have no criminal record must be impressed that they will pay a high price for what may seem like easy money"), certif. denied, 134 N.J. 484 (1993).

Defendant contends that the judge should have found mitigating factors seven, eight, nine and eleven. N.J.S.A. 2C:44-1(b)(7) (lack of prior record); (8) ("defendant's conduct was . . . unlikely to recur"); (9) (defendant's "character and attitude" make re-offense unlikely); (11) (imprisonment would lead to hardship for defendant's family). In light of our previous discussion, mitigating factors eight and nine did not apply. Nor does factor (7) necessarily apply. See State v. Torres, 313 N.J. Super. 129, 162 (App. Div.) (noting no error in failing to find this mitigating factor where the defendant's two prior juvenile arrests did not result in adjudications of delinquency), certif. denied, 156 N.J. 425 (1998). There was nothing in the record to support a finding as to mitigating factor eleven. The pre-sentence report noted that defendant was single and had a child who lived in the Dominican Republic. There was no indication that the child received or relied upon defendant's financial support.

As the Court has recently noted, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

Defendant was sentenced to the midpoint of the range of sentences applicable to a first-degree crime. Given the nature and seriousness of the offense, that sentence does not shock our conscience.

 
In sum, we reject the arguments defendant has raised as to his trial and sentence. As to defendant's argument regarding the denial of his motion to suppress, the matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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

Defendant also challenges another portion of Baum's testimony. After eliciting Baum's acknowledgment that thirty kilograms of cocaine was "worth a small fortune," the prosecutor asked if "it [was] fair to say [that amount of drugs] is just not left around; is it?" Baum replied, "Absolutely not." While the question may have sought an obvious answer that did not require any expert opinion, it provides no reason to reverse defendant's conviction.

In this case, when defendant objected during cross-examination, the prosecutor referenced his intention to "argue in summation" the relevancy of Ferrer's absence.

Defendant has not raised a challenge to the period of parole ineligibility imposed.

As noted above, this was contrary to defendant's testimony at trial.

(continued)

(continued)

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A-0815-07T4

August 12, 2010