STATE OF NEW JERSEY v. ALEXIS MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4725-07T44725-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXIS MARTINEZ a/k/a

JOSE BRUNO,

Defendant-Appellant.

__________________________________

 

Submitted March 23, 2010 - Decided

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-05-0688.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Alexis Martinez, along with co-defendants Jose F. Rodriguez, Salvador Augustine, and Johanny Guzman, were charged under Morris County Indictment No. 06-05-0688 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5a(1), -5b(1) (count two); first-degree distribution of CDS, N.J.S.A. 2C:35-5a(1), -5b(1) (count three); and second-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 (count four).

On October 20, 2006, Augustine entered a guilty plea to first-degree distribution of CDS. Pursuant to the plea agreement, Augustine was to testify truthfully against his co-defendants in exchange for a recommendation that he be sentenced as a second-degree offender, N.J.S.A. 2C:44-1f(2), and receive a seven-and-one-half year term of imprisonment with a thirty-month period of parole ineligibility.

Defendant and co-defendant Rodriguez were tried together before a jury. Defendant was found guilty on all counts and sentenced, as a persistent offender, to a four-year period of incarceration on count one, to run concurrently to the sentence imposed on counts two, three and four; concurrent twenty-year terms of imprisonment with a mandatory one-third parole ineligibility period on counts two and three, and a seven-year period of incarceration on count four, to run concurrently with the sentence imposed on counts one, two and three. Applicable fines and penalties were imposed.

Defendant presents the following points on appeal:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE DURING THE STATE'S PRESENTATION TO THE GRAND JURY.

POINT II

IT WAS ERROR TO HAVE ADMITTED THE AUDIOTAPE INTO EVIDENCE BECAUSE IT WAS NOT PROPERLY AUTHENTICATED.

POINT III

THE STATEMENTS OF CO-CONSPIRATORS WERE ADMITTED HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE WITHOUT INDEPENDENT PROOF OF A CONSPIRACY INVOLVING APPELLANT [ ].

POINT IV

THE ADMISSION INTO EVIDENCE OF THE PLEA ALLOCUTION TRANSCRIPT OF SALVADOR AUGUSTINE VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT V

THE TRIAL JUDGE ERRED IN NOT ALLOWING A CLAWANS CHARGE AGAINST THE STATE REGARDING THE ABSENCE OF MESSRS. FIORINO AND AUGUSTINE FROM TRIAL.

POINT VI

IT WAS ERROR TO DENY DEFENDANT'S TWO MOTIONS FOR A JUDGMENT OF ACQUITTAL AND A NEW TRIAL.

POINT VII

IT WAS ERROR FOR THE TRIAL JUDGE NOT TO DISMISS THE INDICTMENT IN VIEW OF THE STATE'S SPOLIATION OF A POST-ARREST STATEMENT BY APPELLANT.

POINT VIII

THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT[S] A REVERSAL AND A NEW TRIAL.

POINT IX

THE STATE'S APPLICATION FOR IMPOSITION OF AN EXTENDED TERM OF IMPRISONMENT WAS AN ABUSE OF DISCRETION.

We affirm.

We addressed the merits of co-defendant Rodriguez's appeal in a prior unpublished opinion. State v. Rodriguez, No. A-6279-07T4 (App. Div. Dec. 8, 2009). We recite the facts as stated in that opinion.

On April 1, 2005, the Morris County Prosecutor's Office (MCPO) conducted an undercover narcotics investigation. Detective Earl Harrison Dillard, a detective working in the Special Enforcement Unit, met with a cooperating witness, Gregory Fiorino, who agreed to assist the police with a narcotics investigation. Fiorino informed Dillard he had previously purchased cocaine from an individual, identified as "Alex," who was in the business of distributing large quantities of cocaine. Fiorino believed he could arrange to introduce Dillard to Alex for the purchase of a kilo of cocaine. Fiorino called Alex from his cell phone. Dillard recorded the conversation. The deal was arranged as follows: Dillard and Fiorino would purchase and split a kilo of cocaine, with Dillard paying $12,000 for his half. The transaction was set to take place in the parking lot of T.G.I. Friday's restaurant in Roxbury. Alex would be accompanied by "Sal" and "Van, or Vanilla."

Dillard held a pre-operational briefing with approximately twenty officers and detectives. He laid out the operational plan and informed each officer of his responsibility. During the course of the meeting, Dillard provided electronic equipment to assist the team and created a "take down" signal. It was established that Fiorino would introduce Dillard, who would engage the parties in drug-related conversation and purchase the cocaine. The $12,000 was placed in a secure location in the event Alex asked to see the money. However, the transaction was not to be completed: Dillard planned to negotiate the transaction, ensure the parties had the drugs, then give the take down signal, and call in the assisting officers.

Around 8:30 p.m., Fiorino placed a second call to determine Alex's location. Alex revealed he was coming over the George Washington Bridge. Dillard did not record the call. Shortly thereafter, Dillard and his team left to go to T.G.I. Friday's.

Dillard instructed Fiorino to place another call to Alex at approximately 9:30 p.m. Around 10:00 p.m., Fiorino received a call from Alex stating he had exited Route 80 and was looking for T.G.I. Friday's. Fifteen minutes later, Alex called Fiorino stating he had arrived.

As Dillard instructed, Fiorino greeted Alex and his associates, then returned to Dillard and the two walked toward Alex's car, a Mitsubishi Montero. Five individuals were inside the car. [Defendant] was sitting in the driver's seat, [Rodriguez] in the front passenger seat, and Augustine sat in the rear passenger seat with two women.

Fiorino introduced Dillard to the individuals, and they engaged in casual conversation. Dillard asked about the cocaine, and Augustine reached between his legs and retrieved a black plastic bag, which he then handed to [Rodriguez]. The contents of the bag were not visible, so Dillard squeezed the bag to ensure the object was consistent with a powdery substance and about the size of a kilo. Once Dillard was confident the drugs were in the bag, he dropped the bag onto [Rodriguez's] lap, stepped back from the car, and pretended to make a call to get the money.

After a few minutes, [Martinez asked if he could drive Dillard to pick-up the money and defendant] asked Fiorino if he would take the bag. Dillard testified, "[i]t seemed to me that [Rodriguez] wanted to get . . . the cocaine out of his vehicle." At that point, Dillard gave the take down signal. The arrest team came in and took Fiorino, along with the occupants of the Mitsubishi, into custody. To maintain his cover, Dillard was also "arrested."

While Dillard was being led away by Sergeant Mike Rogers, he told Rogers the drugs were inside the Mitsubishi in a black plastic bag. Rogers went to the car, recovered the bag and examined its contents. He then took the black bag to special enforcement headquarters and examined its contents a second time. Rogers observed the black plastic bag contained two separate plastic bags that held the cocaine. Based upon the appearance, smell of the white powdery substance, and a chemical field test, Rogers confirmed the bag, in fact, contained cocaine.

Rogers submitted the substance to the New Jersey State Police for forensic examination. Lowell Mark, a forensic chemist employed by the New Jersey State Police, [ ] related that his testing revealed the bag contained 1,005 grams of cocaine, a little more than a kilogram.

Captain Jeffrey Paul, of the Morris County Prosecutor's Office, was qualified as an expert witness in narcotics investigation. He testified the amount of cocaine recovered had an estimated wholesale value of between $25,000 and $32,000. [Paul] further testified the amount of cocaine at issue "would be consistent with possession with intent [to distribute] versus personal consumption."

Defendant . . . called [as a witness] Special Agent Miguel Carrera of the United States Drug Enforcement Administration. Carrera assisted the Morris County Prosecutor's Office in the April 1, 2005 undercover operation. Carrera had interviewed Augustine at the time of arrest and obtained his written statement in Spanish. The translated statement was entered into evidence, pursuant to the parties' stipulation. Augustine wrote that he was solely responsible for the drug sale, and the others present in the car had no idea the sale was to occur.

As rebuttal, the State introduced that portion of Augustine's October 20, 2006 plea colloquy where he recanted the written statement previously provided to Carrera. Augustine explained he lied in his original written statement because he "was scared." On sur-rebuttal, [defendant] Martinez explained Augustine's October 20, 2006 statement was made as part of [a] plea agreement, whereby he was promised favorable treatment. The jury was informed Augustine pled guilty and was sentenced to seven-and-one-half years imprisonment, with a thirty-month period of parole ineligibility. The trial judge instructed the jury that consideration of Augustine's guilty plea and statement were for the purpose of determining credibility and were not evidence of the other defendants' guilt.

[Id. at 4-8.]

Defendant's motion for acquittal at the close of the State's case was denied. Subsequent to the verdict, defendant renewed his motion for acquittal or, in the alternative, for a new trial. The court also denied these applications. The jury found defendant and Rodriguez guilty on all counts.

The State moved for a mandatory extended-term sentence, arguing defendant was a persistent offender pursuant to N.J.S.A. 2C:43-6(f). The motion was granted. In imposing sentence, the trial court considered applicable aggravating and mitigating factors. This appeal ensued.

Reviewing defendant's arguments on appeal, we note some of the same issues were also raised by co-defendant Rodriguez. Following our review, we discern these issues do not warrant further discussion as we rely on our prior conclusions that they lacked merit. R. 2:11-3(e)(2). Accordingly, we reject defendant's arguments in Point I, see Rodriguez, supra, at 9-13 (concluding that at the time of indictment Augustine's statement was not "clearly exculpatory"), and Point V, see id. at 17-20 (determining as sound the trial court's conclusion that no Clawans charge was required because Augustine was available to defendant and Fiorino's testimony would add little to the information offered by Dillard). We turn to the remaining arguments presented by defendant.

In Point VII, defendant offers a second basis to dismiss the indictment. He argues the State lost his April 2, 2005 handwritten post-arrest statement, taken by Carrera and turned over to Paul, which amounts to "a spoliation of evidence." These are the facts.

When defendant was initially arrested, he was interviewed by Carrera, who accepted defendant's handwritten statement of events. Carrera turned the document over to the MCPO. When the State released its discovery, a report mentioned defendant's statement as follows: "[Defendant] and his friends were asked by [Augustine] to bring [him] to New Jersey. [Augustine] offered to put gas in the car and to pay [defendant] $100.00." Defendant formally requested a copy. The State admitted it was unable to locate the document.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the Supreme Court extended constitutional due process protections to require the disclosure of information, which may tend to exculpate the accused. See State v. Reddish, 181 N.J. 553, 639-40 (2004). The State's obligations have also been set forth in Rule 3:13-3. Specifically, Rule 3:13-3(c)(2) provides the State "shall permit defendant to inspect and copy . . . records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant [ ] known to the prosecution but not recorded[.]"

Reversible error may occur when the State breaches its responsibility to provide a defendant with relevant, material discovery. See Reddish, supra, 181 N.J. at 639-40 (holding that "[i]f evidence favorable to the defendant has been suppressed by the State and that evidence is likely to have affected the verdict, a conviction cannot stand"); State v. Gilchrist, 381 N.J. Super. 138, 144-46 (App. Div. 2005); see also Pressler, Current N.J. Court Rules, comment 7.1 R. 3:13-3 (stating a prosecutor's willful violation of his discovery obligation may "require reversal of a conviction if defendant is thereby deprived of a fair trial"). To establish such a Brady violation, the defendant must show that: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)); State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985).

Examining the facts against this standard, we reject defendant's contention. Defendant concedes the loss of his statement was inadvertent. The State readily disclosed the problem and admitted its error once it realized the statement was misplaced. We do not agree with the assertion that the statement was "sufficiently material" that its loss prejudiced the defense. Hollander, supra, 201 N.J. Super. at 479.

Defendant's statement was consistent with his trial defense and related his lack of knowledge that Augustine intended to engage in a narcotics transaction. As presented by the defense at trial, defendant merely drove Augustine to New Jersey in exchange for $100 plus the cost of gas; he had no knowledge the black bag contained cocaine. Although defendant's statement was consistent with the initial statements of his co-defendants, including Augustine, it is not exculpatory, but only self-serving and thus inadmissible. See State v. Gomez, 246 N.J. Super. 209, 215-16 (App. Div. 1991) (noting that statements against penal interest possess sufficient reliability to overcome the bar on hearsay, but "a self-serving statement made after the commission of a crime provides too much opportunity for contrivance to warrant admission").

Moreover, Augustine's first written assertion absolving his friends of knowledge of the drug deal was used by defendant, as he presented Carrera, who in turn identified Augustine's exculpatory statement. Defendant also could have examined Carrera regarding his own statement and was free to cross-examine Paul regarding the loss of the document.

We conclude the loss of defendant's statement did not prejudice his opportunity to present a defense. Accordingly, the denial of defendant's motion to dismiss the indictment will not be disturbed.

Defendant also challenges as error various evidentiary determinations made by the trial court. A trial court's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991)), certif. denied, 163 N.J. 79 (2000). Our review accords "substantial deference to a trial court's evidentiary rulings," State v. Morton, 155 N.J. 383, 453 (1998), and we reverse only when we discern a clear abuse of that discretion.

In Point II, defendant challenges admission of the "unauthenticated" audio recorded conversations between Fiorino and "Alex" to set up the drug transaction on April 1, 2005. After defendant objected to the admissibility of the tape, the court conducted a hearing out of the presence of the jury. See State v. Driver, 38 N.J. 255, 287-88 (1962).

Dillard, who operated the tape recorder, admitted that because of a battery malfunction, the tape contains no introductory statement referencing the parties to the conversation, the date and time of the calls, or any other general information which would serve to authenticate the tape. Defendant argues that because neither Fiorino not Augustine testified, Dillard's general identification of the speakers was insufficient and not persuasive to satisfy the requisites for authentication.

In Driver, supra, the Court established a multi-part test to ensure compliance with N.J.R.E. 901 when considering sound recording evidence. 38 N.J. at 287.

As a condition to admissibility, . . . the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.

[Ibid.]

Defendant argues the parties to the conversation were not sufficiently identified to allow admissibility. We disagree.

Dillard testified that once Fiorino notified him he could schedule a drug transaction, he obtained authorization from a former Chief Assistant Prosecutor to conduct a consensual intercept of telephonic communications. In his request for authorization, Dillard identified the names of the individuals Fiorino sought to call and was given a seven-day time frame to conduct the recording. Dillard also identified the tape recorder and tape he used to make the recording, demonstrated his ability to operate the recording device, described the date and location of the recording, and detailed the steps taken when he learned the battery housing was loose while recording the prefatory facts prior to the phone ringing. Finally, he confirmed the tape recording had not been edited or altered, and contained the conversation conducted in his presence. Additionally, Detective Christopher Vanadia testified regarding his creation of a digital recording from the original analog tape.

Although Fiorino provided only a limited identification of the party he called "Alex," Dillard testified about the time, place and circumstances of the recording made of the call by Fiorino in his presence. Dillard identified Fiorino as one party to the call and said Fiorino's statements, as recorded, matched what he heard. Additional corroborating facts supporting the recording's competence, including that the parties met at the location described in the recorded conversation and were carrying the exact amount of cocaine discussed.

In properly denying defendant's motion, the court found the tape was clearly audible and, in analyzing the Driver factors, found that direct and circumstantial evidence established its admissibility. See State v. Mays, 321 N.J. Super. 619, 628-29 (App. Div.), certif. denied, 162 N.J. 132 (1999). We defer to those findings, which are amply supported by the record. See State v. Ziccarelli, 122 N.J. Super. 225, 238-40 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973).

Also, defendant claims reversible error resulted from the admissibility of Dillard's testimony relating Fiorino's comments to arrange the narcotics purchase. It is undisputed that the statements and the tape contain hearsay. Relying on State v. Phelps, 96 N.J. 500, 509-10 (1984), defendant asserts the court incorrectly interpreted the co-conspirator exception to the hearsay rule in admitting the evidence.

An exception to the general bar of hearsay evidence is found at N.J.R.E. 803(b)(5), which allows as admissible hearsay statements "made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and [ ] in furtherance of that plan." Admissibility is contingent upon a showing that the statement was made in furtherance of the conspiracy, during the course of the conspiracy, and the conspiracy's existence and that a defendant's participation in it, are supported by independent proof. Phelps, supra, 96 N.J. at 510. Defendant's argument focuses on the last prong, contending the State failed to adduce "independent proof" of the conspiracy beyond the hearsay statements. We reject this claim.

The recorded conversation between Fiorino and "Alex" related that he and two others were driving from New York to the arranged meeting place -- the parking lot of a T.G.I. Friday's restaurant in Roxbury -- to effectuate the sale of one kilogram of cocaine for $12,000. In a later call, Fiorino gave "Alex" directions to the restaurant and, based on his arrival in Morris County, the time for the transaction would be between 9:30 and 10:00 p.m. At the time and place noted, defendant arrived driving a vehicle with New York plates in which Augustine and Rodriguez were passengers. Defendant was present during Dillard's inquiry regarding the narcotics and engaged in a conversation with Augustine, conducted in Spanish, after Dillard asked to touch the black-wrapped package to confirm its contents. Defendant offered to drive to the location where Dillard suggested he had the buy-money.

These facts supply sufficient, independent, direct and circumstantial evidence corroborating the conspiracy and defendant's participation therein, lending credence to the inherent trustworthiness of the hearsay contained in the recording and allowing its admissibility under the co-conspirator exception. State v. Savage, 172 N.J. 374, 403 (2002).

The second Confrontation Clause challenge, Point IV, regards the use of a portion of Augustine's plea allocution even though he did not testify. Defendant urges the court erred as use of the statement was barred by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Prior to trial, the State sought a ruling that if defendant introduced, as exculpatory, Augustine's statement to Carrera wherein he claimed sole responsibility for the cocaine sale, the evidence could be rebutted or its effect neutralized by reading that portion of Augustine's plea testimony recanting his prior statement. The court agreed this procedure was appropriate and, at trial, the jury heard both statements accompanied by an instruction limiting the use of the plea testimony solely to attack the credibility of Augustine's statement upon arrest.

Although we agree Crawford included "plea allocution[s] showing [the] existence of a conspiracy" as the type of testimonial evidence wrongfully admitted in the absence of a defendant's ability to cross-examine, id. at 64, 124 S. Ct. at 1372, 158 L. Ed. 2d at 201 (citing United States v. Aguilar, 295 F.3d 1018, 1021-23 (9th Cir. 2002)), that exception only governs testimonial hearsay introduced as substantive evidence of a defendant's guilt. It "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9 (citation omitted).

Here, Augustine's retraction testimony was offered for impeachment purposes. As allowed by N.J.R.E. 806, the second statement attacked the credibility of the first. See State v. Sego, 266 N.J. Super. 406, 411-12 (App. Div.), certif. denied, 134 N.J. 566 (1993). Our review concludes no Confrontation Clause concerns arise from the procedure employed at trial. Tennessee v. Street, 471 U.S. 409, 414-15, 105 S. Ct. 2078, 2081-82, 85 L. Ed. 2d 425, 431-32 (1985).

Defendant next asserts in Point VI that the trial court erred in denying his motions for acquittal, pursuant to Rule 3:18-1, or a new trial, pursuant to Rule 3:20. Defendant's arguments are based on the sufficiency of the evidence. He asserts no evidence was presented showing he had "actual possession" of cocaine, a necessary element for the drug offenses charged. Defendant argues no evidence supports he "touch[ed]," or "look[ed] into the bag." Further his "fingerprints were [not] found on the bag." Additionally, he maintains there was no evidence of intent, defeating count two, and nothing to show he actually distributed the CDS, requiring reversal of the conviction on count three.

Viewing the State's direct and circumstantial evidence in its entirety, we reject these arguments. Giving the State the benefit of all reasonable inferences, we conclude the evidence was sufficient such that "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967).

"Criminal '[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time[.]'" State v. Brown, 80 N.J. 587, 597 (1979) (quoting State v. Davis, 68 N.J. 69, 82 (1975)). To prove conspiracy, the State must show defendant, with the purpose of facilitating the commission of a crime, made an agreement with another person to engage in conduct constituting a crime. N.J.S.A. 2C:5-2.

The uncontroverted evidence shows the police, with the aid of a cooperating witness, arranged for the purchase of a kilo of cocaine. Defendant, along with the co-defendants, drove his vehicle from New York to New Jersey. He arrived at the designated meeting spot on the agreed date for the narcotics sale. The subject of the sale was a kilo of cocaine, which was found in his car. Defendant was present during conversations that expressly discussed inspection of, and payment for, the CDS. Finally, defendant asked Dillard whether he wanted him to drive to another location to complete the exchange of the drugs for money.

With regard to counts two and three of the indictment, defendant's guilt was premised on a theory of accomplice liability. A person may be an accomplice to another in the commission of an offense if, among other actions, he "[a]ids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6c(1)(b). An accomplice may be held legally accountable for the conduct of others. N.J.S.A. 2C:2-6b(3).

From these facts, it was reasonable for the jury to infer defendant, along with Augustine and Rodriguez, intended to take part in a significant drug transaction. Based on this evidence, the facts "coalesce sufficiently to enable a rational jury to infer beyond a reasonable doubt knowledge and control on the part of defendant justifying his convictions for the crimes of . . . possession with an intent to distribute[.]" Brown, supra, 80 N.J. at 599. It is not fatal to the State's case that other possible explanations of defendant's conduct could be argued or that the evidence failed to "exclude every other conceivable hypothesis except guilt." Ibid.

Following our review, we conclude no error deprived defendant of a fair trial. Accordingly, the trial court properly denied his request for a new trial. Based upon our review, his conviction will not be overturned.

Finally, defendant argues the State's request for an extended term was a patent and gross abuse of its discretion and a violation of fundamental fairness (Point IX). We disagree.

The State moved for application of N.J.S.A. 2C:43-6(f), based on defendant's prior 2000 conviction in New York for the attempted sale of CDS. See State v. Thomas, 188 N.J. 137, 149-50 (2006). At a hearing held prior to sentencing, the court reviewed the Attorney General's guidelines, issued as directed by the Court in State v. Lagares, 127 N.J. 20, 31-33 (1992), to examine whether a mandatory extended term for repeat CDS offenses was appropriate. Specifically, the trial judge considered whether (a) the State is able to prove the grounds for extended term eligibility by a preponderance of the evidence; (b) defendant lacked counsel at the trial or plea proceeding for the prior underlying offense; (c) defendant pled guilty pursuant to the Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12; or (d) waiver is essential to assure future cooperation with the prosecution. Finding no exception was applicable in this case, the extended term was imposed.

Defendant supports his arguments by noting the sentence imposed was so disparate to that suggested by the State in its plea offer that he is being punished for choosing to proceed to trial. The reasonableness of defendant's sentence is not related to its similarity to the rejected plea offers. State v. Pennington, 154 N.J. 344, 362-63 (1998). Once a defendant rejects a proposed plea, the prosecution is "free to seek the maximum sentences in accordance with our sentencing guidelines." Id. at 363; see N.J.S.A. 2C:44-1(c)(1) (stating "[a] plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment").

Finding applicable aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(1); seven (defendant committed the offense pursuant to an agreement that he be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself), N.J.S.A. 2C:44-1(a)(7); and nine (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9); and no applicable mitigating factors were found. Thus, the aggravating factors preponderated over the mitigating factor. See N.J.S.A. 2C:43-6b; State v. Sainz, 107 N.J. 283, 290-91 (1987). The court imposed sentence within the first-degree range based on the quantity of CDS involved. N.J.S.A. 2C:35-5a(1). See State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984) (concluding an imposed sentence is not modifiable when properly within the statutory range for the offenses charged).

"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). We have no basis to interfere with the sentence imposed.

 
Affirmed.

State v. Clawans, 38 N.J. 162, 171-72 (1962) (establishing guidelines governing inferences drawn from a party's failure to produce a witness).

N.J.R.E. 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." This principle has long been applied to recordings of telephone conversations. See, e.g., State v. Bassano, 67 N.J. Super. 526, 532-34 (App. Div. 1961).

A secondary challenge contests admission of the statements as implicating the Confrontation Clause because neither Fiorino nor Augustine testified. We determine the argument lacks sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). The State correctly points out that both the United States and New Jersey Supreme Courts have recently confirmed that co-conspirator hearsay exceptions, like the one contained in N.J.R.E. 803(b)(5), do not violate the Confrontation Clause as such statements are highly unlikely to be "testimonial" in nature. See Giles v. California, __ U.S. __, 128 S. Ct. 2678, 2691 n.6, 171 L. Ed. 2d 488, 504 n.6 (2008); Savage, 172 N.J. 374, 402 (2002) (noting the principle that the co-conspirator exception does not offend the Sixth Amendment guarantee of confrontation is "well-established").

The claim of cumulative error in Point VIII is without merit. R. 2:11-3(e)(2).

(continued)

(continued)

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A-4725-07T4

June 29, 2010