STATE OF NEW JERSEY v. JOSE M. ROSARIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5161-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE M. ROSARIO,

Defendant-Appellant.

_______________________________________

December 5, 2012

 

Submitted October 30, 2012 Decided

 

Before Judges Yannotti and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-1385.

 

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

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jose W. Rosario was tried before a jury and found guilty of first-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1), and other offenses. He appeals from the judgment of conviction entered by the Law Division on October 30, 2009. We affirm.

I.

Defendant was charged with second-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count one); first-degree possession of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count four); third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count five); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count six); second-degree possession of a firearm while committing certain drug-related offenses, N.J.S.A. 2C:39-4.1(a) (count seven); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count eight); and fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count nine).1

At the trial of this matter, the State presented evidence which established that on January 16, 2003, Detectives Israel Brown (Brown) and Michael Perez (Perez) of the Bergen County Narcotics Task Force went to a restaurant in North Bergen with a confidential informant for a pre-arranged purchase of cocaine from defendant. After receiving a call from a back-up unit, Brown, Perez and the informant exited the restaurant and observed defendant in a green minivan. Perez and the informant approached and entered the van.

Perez and defendant discussed the purchase of an ounce of cocaine. Defendant told Perez that he would "like the quality of cocaine," he could provide him "with anything that [he] wanted" and that they "could engage in other narcotics transactions in the future." The confidential informant handed defendant $700 in cash. Defendant counted the money, confirmed that he had received $700, and hit a series of buttons on the dashboard, which opened a secret compartment in the vehicle where the cocaine was stored. Perez retrieved the cocaine.

After further discussions, defendant agreed to sell Perez three kilograms of cocaine for $69,000 the following day. After exiting the van, Perez and the confidential informant returned to the restaurant. A field test confirmed that the ounce of cocaine Perez purchased from defendant was cocaine. Brown then secured the cocaine.

On January 17, 2003, at about 4:00 p.m., Brown received a call from defendant. Defendant told Brown he would be willing to sell him three kilograms of cocaine for $69,000. Defendant asked Brown whether he liked the cocaine and Brown replied that he did. Defendant and Brown agreed to complete the sale at a motel in Hackensack later that day.

Brown testified that he observed defendant arrive at the motel in the green van. The confidential informant exited a car and entered the van. Defendant was sitting in the driver's seat and Larregui was in a passenger seat. Brown was standing in front of a door to a motel room when he observed Larregui holding a rectangular, taped package. Brown believed the package contained a kilogram of cocaine.

Brown gave a pre-arranged signal to the backup units, who moved in and arrested defendant and Larregui. Brown said that, after the arrest, he observed the hidden compartment in the van and found three kilograms of cocaine there along with two firearms. One of the weapons was loaded with four 45-caliber, hollow point bullets, and the other handgun was loaded with five 32-caliber bullets. The State Police laboratory confirmed that the package retrieved from the van contained three kilograms of cocaine.

Detective David Anthony DeLucca (DeLucca) questioned defendant after his arrest. DeLucca read defendant his Miranda rights2 and provided defendant with a form that explained those rights in Spanish. Defendant signed the form acknowledging that he understood his rights.

Defendant stated that he recently became unemployed, and he borrowed money from his family and friends to purchase the cocaine. Defendant said he intended to sell the cocaine, turn a profit and repay the persons from whom he borrowed the money. Defendant admitted to selling the cocaine to Perez.

The court granted the State's motion to dismiss count nine, and the jury found defendant guilty on all other counts. The court sentenced defendant to an aggregate term of twenty-four years in State prison, with a nine-and-one-half-year period of parole ineligibility. The court also imposed appropriate fines and penalties.

Defendant appeals and raises the following issues for our consideration:

I. DENYING [DEFENDANT] HIS RIGHT TO CONFRONTATION, THE TRIAL JUDGE ADMITTED LABORATORY CERTIFICATES IN EVIDENCE, OVER DEFENSE COUNSEL'S OBJECTION, AND WITHOUT EXPERT TESTIMONY OF THE ANALYST WHO PERFORMED THE FORENSIC TESTS.

 

A. Because the Laboratory Certificates Are Testimonial, the Confrontation Clause Demanded the Presence of the Analyst at Trial.

 

B. N.J.S.A. 2C:35-19 Constitutes an Unconstitutional Infringement on the Exercise of the Confrontation Right.

 

C. The Convictions For Possession and Distribution of a Controlled Dangerous Substance Must Be Reversed Because the Laboratory Certificates Were Inadmissible.

 

II. THE OMISSION OF THE DEFINITION OF HOLLOW NOSE BULLETS FROM THE JURY INSTRUCTIONS ON POSSESSION OF HOLLOW NOSE BULLETS IS REVERSIBLE ERROR.

 

III. THE TRIAL JUDGE ERRED IN IMPOSING CONSECUTIVE SENTENCES ON COUNTS ONE AND TWO, AND IN FINDING AGGRAVATING FACTOR SIX. ADDITIONALLY, BECAUSE OF THE DISPARITY BETWEEN [DEFENDANT'S] SENTENCE ON THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE AND HIS CO-DEFENDANT'S [SENTENCE ON THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE], THE MATTER SHOULD BE REMANDED FOR RESENTENCING.

 

A. The Trial Court Erred in Imposing a Consecutive Sentence on Count Two.

 

B. The Trial Court Erred in Finding Aggravating Factor Six.

 

C. [Defendant's] Sentence Is Unfairly [Disproportionate] to That Which His Co-Defendant Received.

 

II.

We turn first to defendant's contention that he was denied his Sixth Amendment right to confrontation by the admission of certain laboratory certificates into evidence without testimony of the analyst who performed the forensic tests.

N.J.S.A. 2C:35-19(a) provides, in pertinent part, that the State's forensic laboratory may analyze certain substances, including those believed to be CDS, for purposes of proceedings charging a violation of chapters 35 and 36 of the Criminal Code. N.J.S.A. 2C:35-19(b) additionally provides that the laboratory employee who performs the analysis must prepare a certificate, which shall be signed under oath and include an attestation of the results of the analysis. The statute further provides:

When properly executed, the certificate shall, subject to subsection c. of this section and notwithstanding any other provision of law, be admissible evidence of the composition, quality, and quantity of the substance submitted to the laboratory for analysis, and the court shall take judicial notice of the signature of the person performing the analysis and of the fact that he is that person.

 

[Ibid.]

 

In addition, N.J.S.A. 2C:35-19(c) states that, when a party intends to proffer a certificate executed pursuant to the statute, notice of the party's intent to do so, along with a copy of the certificate and all reports related to the analysis, shall be conveyed to the opposing party no later than twenty days before the proceeding begins. The opposing party must object to the admission of the certificate within ten days of receiving such notice. Ibid. "A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objection to the admission of the certificate." Ibid.

In this case, the State moved to admit two laboratory certificates during Brown's testimony. The first certificate indicated that the substance defendant sold to Perez was .96 ounces of cocaine. The second certificate stated that the three packages found in the car contained cocaine, weighing 34.6 ounces, 34.9 ounces, and 34.2 ounces, respectively.

When the assistant prosecutor asked Brown the results of the laboratory tests, defense counsel objected on the ground that the test results were inadmissible hearsay and the certificates had not been properly authenticated. The trial court overruled the objection, finding that the State had complied with N.J.S.A. 2C:35-19, and counsel's failure to object to the admission of the certificates within the statutorily-prescribed period constituted waiver of any objection to the reports.

Defendant contends that admission of the certificates violated his right to confrontation under the Sixth Amendment to the United States Constitution. He argues that N.J.S.A. 2C:35-19 constitutes an unconstitutional infringement upon the exercise of his Sixth Amendment right to confrontation. He therefore argues that his convictions for possession and distribution of CDS must be reversed.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), the Court considered whether the Confrontation Clause barred the admission of "affidavits reporting the results of forensic analysis[,] which showed that material seized by the police and connected to the defendant was cocaine." Id. at 307, 129 S. Ct. at 2530, 174 L. Ed. 2d at 319. The Court found that the certificates were "testimonial" since they were "'a solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)). The Court held that the Confrontation Clause precluded the admission of the certificates unless the declarant is unavailable and the defendant had the opportunity to cross-examine the analyst. Id. at 328, 309, 129 S. Ct. at 2542, 2531, 174 L. Ed. 2d at 332, 320-21.

The Court added that "notice-and-demand statutes" like N.J.S.A. 2C:35-19 do not run afoul of the Confrontation Clause. Id. at 326-27, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331. The Court said that "notice-and-demand statutes" do not improperly shift the burden to the defense since "[t]he defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so." Id. at 327, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331.

N.J.S.A. 2C:35-19 is a notice-and-demand statute. State v. Miller, 170 N.J. 417, 429 (2002). The statute does not improperly infringe upon a defendant's right to confront the witnesses against him. It merely establishes the time frame in which a defendant must exercise this right. N.J.S.A. 2C:35-19(c). See State v. Rehman, 419 N.J. Super. 451, 455 (App. Div. 2011) (noting that "Melendez-Diaz has had no significant impact on prosecutions in this State" because New Jersey has recognized the accused's right to confront the analyst who prepares a forensic analysis).

Defendant nevertheless argues that N.J.S.A. 2C:35-19 impermissibly allows a defendant to forfeit his right to confrontation by silence. Defendant therefore contends that the statute unconstitutionally fails to ensure that a waiver of the right to confrontation is knowing and voluntary. We disagree. As indicated in Melendez-Diaz, a defendant has the burden of raising his right to confrontation, and a "notice-and-demand" statute like N.J.S.A. 2C:35-19 merely governs the time in which this right may be asserted.

III.

Next, defendant argues that his conviction for possession of hollow nose bullets must be reversed because the trial court erroneously omitted the following portion of the model charge in its instructions to the jury:

a "hollow nose bullet or dum-dum bullet" can be a cartridge of any caliber in which the front portion of the projectile is designed to expand upon entering a target. The jacket metal does not cover the entire bullet and an area near the nose is left uncovered. There is a pit or hollow present in the front of the nose

 

[Model Jury Charge (Criminal), "Possession of Prohibited Weapons and Devices" (2005).]

Defense counsel did not object to the instructions on the count charging possession of hollow nose bullets. We must therefore consider whether the omission of the portion of the model jury charge was plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2.

We are satisfied that the trial court's failure to define the term hollow nose bullets in its instructions was not plain error requiring reversal of defendant's conviction on this count. As the State maintains, the term "hollow nose bullets" is self-explanatory. Furthermore, there was no dispute as to the character of the bullets involved here. In addition, defense counsel's failure to object to the charge indicates that "counsel did not find the absence of [the] definition . . . in the judge's charge to be of any consequence[.]" State v. McClary, 252 N.J. Super. 222, 229 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992).

IV.

Defendant also argues that his sentence is excessive. We do not agree.

Here, the trial court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); three, N.J.S.A. 2C:44-1(a)(3) (likelihood that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of prior record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.3

On count one, charging second-degree distribution of CDS, the court sentenced defendant to six years in prison, with a three-year period of parole ineligibility. The court merged count three with count two, in which defendant was charged with first-degree possession of CDS, with intent to distribute, and sentenced defendant to a consecutive thirteen-year prison term with a six-and-one-half-year period of parole ineligibility. The court merged count five with count four, which charged defendant with a second-degree possession of a firearm while committing certain drug offenses, and imposed a consecutive term of five years in prison.

In addition, the court imposed a one-year concurrent term on count six, which charged possession of hollow point bullets. The court merged count eight with count seven, which charged defendant with second-degree possession of a weapon while committing certain drug offenses, and imposed a concurrent six-year prison term on count seven.4 The aggregate sentence is twenty-four years in prison, with nine-and-one-half years of parole ineligibility.

Defendant argues that the court erred by imposing a consecutive sentence on count two. He contends that the two drug sales constituted one transaction, executed in two parts, with the sales occurring within one day of each other and made to the same person. Defendant says that the objective of the first sale was solely to facilitate the second sale.

In State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court established criteria to be applied by the trial courts when determining whether to impose consecutive or concurrent sentences. Those factors are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

 

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

 

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 

(d) any of the crimes involved multiple victims;

 

(e) the convictions for which the sentences are to be imposed are numerous;

 

(4) there should be no double counting of aggravating factors;

 

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

 

(6) there should be an outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.5

 

[Id. at 643-44.]

 

The record supports the court's finding that the two drug transactions were not committed in a single period of aberrant behavior. The transactions occurred on separate days and at different locations. The first sale involved an ounce of cocaine, while the second involved three kilograms of the drug.

The court additionally noted that the passage of time between the sales gave defendant an opportunity to reflect on whether to commit the second offense. The court properly invoked the principle that under our system of justice, there should be no free crimes. We are therefore satisfied that the imposition of consecutive sentences for the two CDS sales were not an abuse of discretion.

Defendant further argues that the record does not support the trial court's finding of aggravating factor six. There was, however, a factual basis for the court's finding. Defendant's prior criminal history includes a disorderly persons offense. Furthermore, the court only gave defendant's criminal history minimal weight in its sentencing analysis.

Defendant also contends that his sentence is excessive when compared with the sentence imposed upon co-defendant Larregui, who pled guilty to first-degree possession of CDS with intent to distribute and was sentenced to eight years in jail, with a three-year period of parole ineligibility. We are convinced, however, that defendant and Larregui were not similarly situated for sentencing purposes, and there was no impermissible disparity between the sentences imposed upon them.

Larregui was not present during the first drug transaction, and therefore did not have the opportunity to consider whether to participate in a second sale. Larregui pled guilty to one count in the indictment, while defendant was tried and found guilty on eight counts. Moreover, defendant jumped bail, did not appear at his trial, and attempted to abscond from law enforcement for over five years. See State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.) (holding that a lengthier sentence could be imposed on a defendant when a co-defendant cooperates with law enforcement), certif. denied, 111 N.J. 589 (1988).

We are therefore satisfied that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed but remanded to the trial court for entry of a corrected judgment of conviction, reflecting the dismissal of count nine and the aggravating and mitigating factors found by the court at sentencing.

 

 

 

1 Co-defendant Luis Larregui (Larregui), who is also known as David Junior, was charged in counts two through ten of the same indictment. He pled guilty to count two and the remaining charges were dismissed.

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

3 We note that the judgment of conviction erroneously indicates that the court considered aggravating factor seven and mitigating factor eleven, and omits aggravating factor six.

4 We note that the judgment of conviction erroneously indicates that defendant was convicted on count nine, charging unlawful possession of hollow point bullets. As we stated previously, the trial court granted the State's motion to dismiss count nine.

5 After the Yarbough decision, N.J.S.A. 2C:44-5(a) was amended to state that "there shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."