STATE OF NEW JERSEY v. DANILLO ANGELES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2144-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANILLO ANGELES,

Defendant-Appellant.

___________________________

February 14, 2012

Submitted January 17, 2012 - Decided

Before Judges Ashrafi and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0845.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant Danillo Angeles was found guilty under count two of Hudson County Indictment No. 07-05-0845 of possession of methamphetamine in violation of N.J.S.A. 2C:35-10(a)(1) and found not guilty under the third count of possession with intent to distribute methamphetamine in a quantity of one ounce or more in violation of N.J.S.A. 2C:35-5(a) and 2C:35-5(b)(8). The trial judge sentenced defendant to five years imprisonment on the possession of methamphetamine charge. Defendant appeals. We affirm.

The relevant facts developed by trial testimony may be summarized as follows: Jersey City Police Officers Anthony Vlachos and Mark Hennessey were dispatched to the Red Carpet Inn at 459 Tonnelle Avenue, Jersey City on January 28, 2007. The uniformed officers were told that a concerned mother called to report that her twenty-one year old daughter was in Room 112 of the motel with two males involved with CDS.

Arriving at the location, they knocked on the door and a young female identifying herself as the daughter answered. The officers explained why they were there. While the young woman was apparently nervous, she was cooperative, not under the influence of narcotics and invited the officers into the room. Defendant was in the room, and Emmanuel Reyes came out of the rear bathroom when the officers entered.

The officers noticed a long thin piece of aluminum foil with burn marks on it on top of a dresser. A glass burner and little glassine bags frequently used to package narcotics were next to the foil. On the bed was a small palm scale, commonly used to weigh narcotics. When asked, no one claimed ownership of the drug paraphernalia. As a result, each individual was placed under arrest and given Miranda warnings.

Officer Hennessey conducted a search of defendant incident to arrest and recovered four large Ziploc bags of colorless rocks, later determined to be methamphetamine, from defendant's jacket pocket. Three of the bags contained large rocks of the crystal meth, while the fourth bag had little glassine baggies of the substance.

In searching the young woman incident to her arrest, a glass cylindrical pipe and a black glassine baggie were found in her jacket pocket. Prior to transporting the arrestees to the police station, Officer Vlachos discovered the registration card for the room indicated that Reyes had rented it.

All three individuals were seated in the rear of the marked police vehicle. It was explained to them that everyone was being charged with the same crimes and an explanation of the charges was provided. A mumbling conversation then ensued among the arrestees. Shortly thereafter, defendant leaned forward and said that the drugs were his and that the others had nothing to do with it.

Officer Vlachos testified that he did not include defendant's admission in his incident report and that not doing so was an oversight. He did not believe it was crucial whether defendant admitted or denied possession since the drugs were found on his person.

Sergeant Christopher Robateau of the Hudson County Prosecutor's Office Municipal Task Crew testified as an expert witness in the field of narcotics. Having viewed the physical evidence, he determined that the Ziploc bags contained methamphetamine. He explained that a drug user would usually purchase a one-gram "load" container for personal use, lasting about forty-eight hours if taken in succession. He estimated the street cost of a load to be between $150 to $204 depending on the frequency of the customer, and explained that crystal meth is primarily bought in small amounts because of its high cost in comparison with the cost of cocaine or heroin. The certified laboratory certificate reported the weight of the meth at 109.93 grams. According to Sergeant Robateau, its estimated street value was almost $10,000 which could last a single user 200 days on successive day use. Sergeant Robateau also testified that crystal meth is found in small Ziploc bags and divided based on weight using a scale. The scale combined with the type of packaging and large quantities of methamphetamine was, in his opinion, suggestive of an intent to distribute.

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

POINT I

TESTIMONY THAT CLEARLY IMPLIED THAT A NON-TESTIFYING WITNESS HAD TOLD THE POLICE THAT DEFENDANT WAS IN POSSESSION OF DRUGS IN THE MOTEL ROOM VIOLATED THE LONGSTANDING RULE IN STATE V. BANKSTON 63 N.J. 263 (1973).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.

Defendant argues in Point I that Officer Vlachos' testimony that the dispatcher stated a woman identifying herself as a concerned mother called to report her daughter was in a motel room with two men involved in CDS, violated State v. Bankston, 63 N.J. 263, 268-69 (1973). This testimony, it is asserted, involved hearsay which was not necessary to explain why the officers went to the particular location. It was enough, so defendant contends, to testify that they were dispatched to the particular motel room at the Red Carpet Inn to show that it was not an arbitrary decision on their part.

In making this argument for the first time on appeal, defendant must satisfy the plain error standard of review. Under Rule 2:10-2, defendant has to establish that the error was of "such a nature as to have been clearly capable of producing an unjust result." This test is applicable since there was no objection to suggest that defense counsel perceived any error or prejudice at trial. See R. 1:7-2; R. 1:7-5; State v. Macon, 57 N.J. 325, 337 (1971). Here, we need not engage in any extensive discussion of Bankston and its progeny since the proofs against defendant were overwhelming. The crystal meth in the various packages was found on defendant's person. He admitted that it was his when he was being transported to the police station. Furthermore, the reference to him in the dispatcher's report referred to him as a drug user not a drug seller. This worked to defendant's advantage when he was found not guilty by the jury of the intent to distribute charge. The references to what was reported by the dispatcher, as testified to at trial, lacked a clear capacity to provide an unjust result in this case. See R. 2:10-2.

Defendant contends in Point II that his five-year sentence was excessive, and the trial court failed to consider mitigating factors and improperly weighed aggravating factors. We reject the argument which is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely note that defendant had previously been convicted of a conspiracy to distribute a controlled dangerous substance on January 22, 2002 where the conspiracy involved a second degree amount of drugs. Defendant was sentenced to three years imprisonment for that crime. On the same date and on an unrelated charge, defendant was sentenced to three years imprisonment with nine months without parole on a third-degree school-zone drug offense. Within five years from the date of his convictions, not counting the lesser period of time from when he was released from prison, defendant reinvolved himself with a drug offense. We discern no abuse of discretion in light of defendant's drug conviction history in imposing a five year term of imprisonment.

A