STATE OF NEW JERSEY v. LYDIA KOLAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1044-06T41044-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LYDIA KOLAS,

Defendant-Appellant.

_________________________________________________________

Submitted January 6, 2010 - Decided August 16, 2010

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

06-02-0078.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William B. Smith, First Assistant

Deputy Public Defender, of counsel and on the

brief).

Anne Milgram, Attorney General, attorney for

respondent (Mary E. McAnally, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Lydia Kolas and co-defendant Assalaam Matthews were charged in a three-count indictment with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three). Following a joint trial, defendant was acquitted of count three, but the jury found her guilty of counts one and two. At sentencing on July 14, 2006, the court merged count one into count two and sentenced defendant to four years probation. The court also imposed appropriate fines, penalties, and assessments.

On appeal, defendant presents the following arguments:

POINT I

REVERSAL IS REQUIRED SINCE IT WAS ERROR TO DENY DEFENDANT KOLAS'S APPLICATION FOR A SEPARATE TRIAL.

POINT II

REVERSAL OF THE CONVICTIONS ON COUNTS ONE AND TWO IS REQUIRED BECAUSE THE TRIAL JUDGE, IN HIS FINAL CHARGE, DID NOT MAKE IT CLEAR THAT THE STATE HAD TO PROVE BEYOND [A] REASONABLE DOUBT THAT THE DEFENDANT POSSESSED THE COCAINE ON THE TIME AND PLACE ALLEGED IN THE INDICTMENT (Not Raised Below).

POINT III

REVERSAL IS REQUIRED BECAUSE BOTH STATE'S WITNESSES TESTIFIED THAT THE CRIMES OCCURRED IN A DRUG-INFESTED AREA, AND TRIAL DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THIS TESTIMONY. (Not Raised Below).

POINT IV

REVERSAL IS REQUIRED BECAUSE THE VERDICT SHEET DESIGNATED AN INDICTMENT (06-02-01246-I) OTHER THAN THE ONE IN WHICH DEFENDANT WAS NAMED (06-02-00078I), THUS SUGGESTING TO THE JURY THAT DEFENDANT [HAD] ANOTHER INDICTABLE CHARGE AGAINST HER; ALSO, SINCE THE VERDICT SHEET OF CO-DEFENDANT MATTHEWS INCORRECTLY LISTED THE SAME INDICTMENT, IT SUGGESTED TO THE JURY THAT DEFENDANT AND CO-DEFENDANT WERE LINKED IN UNCHARGED CRIMINAL MISCONDUCT. (Not Raised Below).

POINT V

REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGH IV, SUPRA.

Based on our examination of the record, the briefs, and the applicable law, we have concluded that these arguments do not warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

The facts underlying defendant's convictions were summarized in our prior unpublished opinion and need not be repeated here. As we noted, defendant elected to testify at trial and during cross-examination she confirmed that when she was arrested she told the police that the cocaine belonged to her:

Q. Lydia, on September 2nd, 2005 when Officer Smith was asking Assalaam questions, do you recall that?

A. Yes.

Q. Do you recall at some point he was dissatisfied with the answers Assalaam was giving him?

A. Yes.

Q. And he demanded the truth?

A. Yes.

Q. And at that point you spoke up?

A. Yes.

Q. And what did you tell the officer?

A. That it's mine.

Q. And is that the truth?

A. Yes. It was in my possession at the time of the raid, yes.

Q. Was there any time between Officer Smith asking for the truth and the time you said it was mine for you to consult with Mr. Matthews?

A. No.

Q. So what you told Officer Smith on that day was that the drugs are mine.

A. Yes.

Q. Did Mr. Matthews know anything about the drugs in your apartment?

A. No.

Q. Did Mr. Matthews tell you to testify that he knew nothing about the drugs?

A. No.

Defendant also acknowledged that the cocaine seized by the police was in a shoe box in her bedroom, and she testified it was given to her "in that way just like that." But she denied she possessed the cocaine with an intent to distribute it, and she also denied that the cocaine was for her personal use.

Notwithstanding defendant's statements to the police when she was arrested and her trial testimony, defendant's attorney told the jury in his summation that defendant was "a young person" who "made bad decisions," and she lied to protect Assalaam Matthews because "[s]he's in love. She's an 18 year old in love."

The dominant issue in this case is whether defendant was entitled to be tried separately. Defendant claims the trial court erred in denying her severance motion. We do not agree. Two or more defendants may be tried jointly "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." R. 3:7-7. Moreover, there is a preference for joint trials "when much of the same evidence is needed to prosecute each defendant." State v. Brown, 170 N.J. 138, 160 (2000) (citations and quotations omitted). "However, the interest in judicial economy cannot override a defendant's right to a fair trial," State v. Sanchez, 143 N.J. 273, 282 (1986), and separate trials are generally required when defendants present defenses that are "antagonistic and mutually exclusive or irreconcilable." State v. Brown, 118 N.J. 595, 605 (1990).

In the present matter, the same evidence was used to prosecute defendant and Matthews, and the trial court correctly concluded that their defenses were not mutually exclusive or antagonistic. Accordingly, defendant has failed to establish that the court abused its discretion when it denied her motion for a separate trial.

Because defendant's remaining arguments were not presented to the trial court, we must determine whether any of the alleged errors was "clearly capable of producing an unjust result." R. 2:10-2. We are satisfied from our examination of the record that defendant was represented by competent counsel and received a fair trial. We also conclude, in light of the overwhelming evidence of defendant's guilt, that none of the asserted errors, individually or in the aggregate, had the potential to cause an unjust result. See State v. Cotto, 182 N.J. 316, 327 (2005) ("[T]he strength and quality of the State's corroborative evidence rendered harmless any deficiency in the instruction [on identification] and precludes a finding of plain error."); State v. G.S., 145 N.J. 460, 475-76 (1996) (noting that jury could not have been misled by inadequate limiting instruction regarding other crime evidence where there was "strong evidence" of defendant's guilt); State v. Hunt, 115 N.J. 330, 369 (1989) (concluding that any error in admission of testimony was harmless where there was "overwhelming proof" of defendant's guilt), reconsideration denied, 117 N.J. 152 (1989).

Affirmed.

 

Co-defendant Assalaam Matthews was also found guilty on counts one and two and not guilty on count three. We affirmed his convictions and sentence in an unpublished opinion State v. Matthews, No. A-2148-06 (App. Div. July 24, 2009).

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