STATE OF NEW JERSEY v. ISMAEL Z. MALDONADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3966-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAEL Z. MALDONADO, a/k/a

NICHOLAS TORRES,

Defendant-Appellant.

________________________________________________________________

December 19, 2011

Submitted October 26, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-01-0086 and 08-09-2696.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ismael Z. Maldonado appeals from two judgments of conviction entered on November 18, 2008. Defendant was found guilty after a jury trial of all three counts of Camden Indictment No. 08-01-0086, charging third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution and/or possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and 5(b)(2) (count two); and third-degree distribution and/or possession with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three).

A second indictment, No. 08-09-2696, charged defendant with first-degree carjacking, N.J.S.A. 2C:15-2 (count one); and second-degree robbery, N.J.S.A. 2C:15-1 (count two). Defendant pled guilty to count two of the second indictment. In exchange, the State dismissed count one and agreed to recommend a seven-year term of imprisonment to be served consecutively to the sentence on the other indictment, with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the terms of the plea agreement, defendant also waived his right to appeal the conviction.

At sentencing, the trial judge merged counts one and two with count three of the first indictment and sentenced defendant to a four-year term of imprisonment with three years of parole ineligibility. Defendant was also ordered to submit a DNA sample, forfeit $205, and pay $1205 in mandatory fines and penalties, and his driver's license was suspended for six months.

In conformity with the plea agreement on the second indictment, defendant was sentenced to a consecutive term of seven years in prison, with eighty-five percent parole ineligibility under NERA, along with $175 in mandatory fines and penalties. Defendant appeals, alleging two trial errors and an excessive sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The trial testimony revealed the following facts regarding the first indictment. At approximately 7:00 a.m. on September 14, 2007, Investigator Mark English, an eight-year veteran of the Camden County Prosecutor's Office assigned to the narcotics task force, was performing undercover surveillance in Camden, New Jersey, within 1000 feet of Pyne Poynt Middle School. He and his partner, Investigator Matt McKeown, were parked in an undercover vehicle on a bright morning with an unobstructed view of defendant from approximately eight to ten yards away.

From that location, English saw defendant exchange a plastic "baggie" for cash with another person, who then left the area. English and McKeown approached defendant and began to search him when eight bags of heroin fell from his pants. The officers also found $205 in defendant's pocket.

At a pretrial hearing on July 28, 2008, defendant moved to exclude the State's use in cross-examination of his 2007 Pennsylvania conviction for unlawful possession of a firearm without a license, for which he was serving a four-year term of probation.

In response to defendant's application, the judge conducted a Sands1 hearing. Defense counsel argued the conviction was extremely prejudicial because a jury might conclude that if defendant was guilty of possessing a handgun without a license, he might be more likely to sell illegal drugs. Additionally, counsel asserted that the conviction was not probative for impeachment purposes because the offense did not inherently involve dishonesty.

Noting that the Pennsylvania conviction was recent, dissimilar to the pending charges and that "an appropriate instruction would be given" to the jury, the judge denied defendant's motion, permitting the State to "use evidence of that conviction to impeach the credibility or believability of the defendant [should he decide to testify]."

The lone State's witness, Investigator Mark English, testified that he had observed defendant sell drugs from a surveillance point on the "800 block of North Eighth Street" in Camden. He and his partner viewed the events while parked in a vehicle at an "undisclosed location" with an "unobstructed view" of defendant. At a sidebar conference following the prosecutor's direct examination, defense counsel informed the trial judge that she was "having a little bit of an issue with this undisclosed surveillance location." Over the prosecutor's objection that the motion should have been made before trial, defense counsel moved to reveal the undisclosed location. Although the judge agreed that the motion should have been made earlier, he agreed to conduct an in camera hearing.

At this hearing, English testified that the police vehicle was parked at the "opposite corner" of the intersection, diagonally across from where the transaction took place. Using a hand-drawn map sketched at the judge's request, he indicated that they were "off to one side" but "facing generally the direction of where the defendant was." English estimated that he and his partner were "[a]pproximately eight to ten yards" from defendant, close enough that they "could see [him] plainly" without the use of binoculars.

English asserted that the exact location should remain confidential because the area was "a known drug corner" with ongoing criminal activity and police investigations. He testified that disclosure might result in retaliation against the police, jeopardizing the safety of officers and civilians alike. The judge found that "the State ha[d] made a preliminary showing [that] there exists a realistic probability that revealing the location would compromise present or future prosecutions and possibly endanger lives or property." Defense counsel then presented her argument on the record, reiterating that because the State's case relied on an eyewitness account, the exact location was "absolutely critical to [defendant's] case." She also highlighted the fact that "anyone viewing [the] public record would see from what already has transpired here today that the person, investigator, was in a parked car on that block."

The judge denied defendant's motion. According to the judge, "the real heart of it is . . . that the officers using this particular ongoing location would be in danger if it were publicly revealed." The judge limited the information available to the defense as follows:

That Investigator English in his observations was approximately eight to ten yards from the defendant's location. That when he made his observations he was not utilizing vision-enhancing equipment. With respect to his elevation and angle of sight, he was observing from the vantage point of being seated in a motor vehicle looking directly at the defendant, not using a mirror to look at the defendant. There [were] no obstructions between him and the defendant. The lighting conditions were that it was a clear day, daylight conditions. And that will be the limit of information to be provided to the defendant.

As to the second indictment, on June 14, 2008, defendant observed a parked car with its key in the ignition. He entered the vehicle and began to drive away. While the vehicle was in motion, its owner appeared and attempted to open the door. Defendant struggled with the vehicle's owner until she eventually fell and was injured.

On appeal, defendant raises the following issues,

POINT I

THE TRIAL COURT'S DECISION DENYING DEFENDANT'S MOTION TO PREVENT THE INTRODUCTION OF A PRIOR PENNSYLVANIA CONVICTION OF POSSESSION OF A HANDGUN WAS IN ERROR.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO REVEAL THE POLICE SURVEILLANCE LOCATION AS THE DISCLOSURE OF THE EXACT LOCATION OF THE UNDERCOVER SURVEILLANCE WAS CENTRAL TO THE DEFENDANT'S CASE.

POINT III

THE SENTENCE IMPOSED [FOR] DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

POINT IV

THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO A SENTENCE ON THE ROBBERY CHARGE ON INDICTMENT [08-09-2696] CONSECUTIVE TO THE SENTENCE IMPOSED ON INDICTMENT [08-01-0086].

I

Defendant asserts in Point I that the trial judge's decision to permit evidence of defendant's prior conviction for impeachment purposes was clearly in error and prejudicially prevented him from testifying. We disagree.

Trial courts are vested with discretion to admit evidence of prior convictions to impeach a defendant's credibility. See, e.g., State v. Hamilton, 193 N.J. 255, 263-64 (2008); see also Biunno, Weissbard & Zegas, N.J. Rules of Evidence, comment 4 on N.J.R.E. 609 (2011). In State v. Sands, supra, 76 N.J. at 147, the Supreme Court "imposed a rule granting trial courts discretion to preclude remote and highly prejudicial conviction evidence from trial when necessary to protect a defendant from the danger of undue prejudice." Hamilton, supra, 193 N.J. at 264; see also N.J.R.E. 403(a) (allowing a judge to exclude otherwise relevant evidence "if its probative value is substantially outweighed by the risk of . . . undue prejudice").

As the Sands Court stated:

The key to exclusion is remoteness. Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period may justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant.

[Sands, supra, 76 N.J. at 144-45.]

As noted by the trial judge, the Pennsylvania weapons conviction for possession of a firearm without a license occurred only approximately six months before the criminal conduct alleged in the first indictment. Although the prior offense did not inherently involve dishonesty or fraud, the conviction was recent and substantially dissimilar from the drug charges defendant faced at trial. Therefore, the judge did not abuse his discretion by admitting the conviction for the limited purpose of impeachment.

II

In his second point, defendant asserts that the trial judge erred by failing to require the State to disclose the precise police surveillance location. According to defendant, this information "was central to the defense and was necessary to preserve [d]efendant's confrontation clause rights." We disagree.

According to both N.J.S.A. 2A:84A-27 and N.J.R.E. 515:

No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.

Under this "official information privilege," "a surveillance location falls within the type of information that a court may conceal in the public interest." State v. Garcia, 131 N.J. 67, 73 (1993). "Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis," id. at 80, and the decision to disclose or withhold a location "should be overturned only if the record discloses a mistaken exercise of discretion in the application of the relevant factors." State v. Zenquis, 131 N.J. 84, 88 (1993) (citing Garcia, supra, 131 N.J. at 81).

To successfully invoke the privilege, "the State must demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. The defendant can then overcome the privilege only by making "a substantial showing of need." Id. at 81. "[I]n determining whether the defendant has demonstrated 'substantial need,' the court should balance the defendant's need for that information with the public's interest in nondisclosure." Zenquis, supra, 131 N.J. at 88 (citing Garcia, supra, 131 N.J. at 80-81). Factors relevant to this determination include the crime charged, possible defenses, the information's potential significance, and whether there is corroborating evidence for the officer's statements. See ibid. (naming the first three factors); Garcia, supra, 131 N.J. at 82 (discussing corroboration).

Even where the State receives the benefit of the official information privilege, the defendant is entitled "to enquire about certain important facts" to help the jury "critically examine testimony, while also serving the State's need for confidentiality." Garcia, supra, 131 N.J. at 81. These include the distance from which the observation was made, whether the witness used any vision-enhancing articles, whether the observations were made from an elevated position, and information about the witness's line and angle of sight. Id. at 81-82.

The trial judge did not abuse his discretion by excluding the precise surveillance location. According to Investigator English, the site under surveillance was "a known drug corner" that was the subject of ongoing police investigations. These facts buttress the judge's conclusion that "the officers using this particular ongoing location would be in danger if it were publicly revealed." In fact, other officers had recently been confronted in a hostile manner when staking out a nearby location.

Additionally, defendant failed to articulate any substantial need for the information, other than to say that it was "absolutely critical to [his] case" because the State was relying on an eyewitness account. The State presented the heroin found on defendant's person that corroborated English's testimony. Moreover, defense counsel was permitted to elicit that English was approximately eight to ten yards from defendant, was not using any vision-enhancing equipment, and was observing defendant directly from a motor vehicle on a clear day. These questions allowed counsel to "conduct effective cross-examination at trial without learning the exact surveillance location." Id. at 81.

III

Defendant next asserts that the aggregate eleven-year sentence imposed by the trial court "was manifestly excessive and constituted an abuse of discretion." We disagree.

"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). The standard of review "is one of great deference, and judges who exercise discretion and comply with the principles of sentencing remain free from the fear of second-guessing." Id. at 501 (internal quotation and editing marks omitted); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (stating that where a sentencing court "adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing").

The record fully supports the sentence imposed by the trial judge. The trial judge found applicable aggravating factors 3 (the risk that defendant will reoffend), 6 (the seriousness of his prior record) and 9 (the need for deterrence) and mitigating factor 2 (that defendant did not contemplate that his conduct would cause or threaten serious harm). N.J.S.A. 2C:44-1a(3), (6) and (9) and -1b(3). Defendant does not object to the aggravating factors, which were all supported by substantial credible evidence. Moreover, the judge found that the aggravating factors "clearly, convincingly and substantially" outweigh the lone mitigating factor. Yet both sentences fell within the mid-length ranges prescribed by the sentencing guidelines.

The sentence was well within the judge's discretion and does not shock the judicial conscience. See Bieniek, supra, 200 N.J. at 612; State v. Roth, 95 N.J. 334, 363-65 (1984).

IV

Finally, defendant argues in Point Four that the trial court "abused its discretion in sentencing Defendant on the second[-]degree robbery charge of indictment 08-09-2696 to a seven year sentence consecutive to the sentence on indictment 86-01-08." We disagree.

A sentencing court must generally consider the criteria announced in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and articulate its reasons for imposing consecutive sentences. See, e.g., State v. Miller, 205 N.J. 109, 122-23 (2011). However, the robbery sentence was imposed pursuant to a plea agreement that defendant entered into knowingly and voluntarily, a fact recognized by defense counsel at sentencing. By defendant's own admission, he entered into the agreement "of [his] own free will," having been advised by counsel. Although the judge offered no explicit reasons for the consecutive sentences, we have the discretion to affirm a consecutive sentence "without the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly mistaken.'" State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) (quoting State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003)). In light of the fact that the two indictments involve unrelated criminal behavior committed months apart and defendant agreed to consecutive sentences as part of his plea agreement, we find these criteria satisfied.

A

1 State v. Sands, 76 N.J. 127 (1978).