STATE OF NEW JERSEY v. RONALD JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD JOHNSON,

Defendant-Appellant.

____________________________

November 24, 2014

Submitted November 12, 2014 Decided

Before Judges Reisner and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 08-09-2152.

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

James P. McClain, Atlantic County Prosecutor,attorneyforrespondent (Kathleen E. Bond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronald Johnson appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). He also appeals from the five-year sentence, which was imposed to run concurrent with another five-year sentence he was then serving on a different conviction.1 Defendant presents the following points of argument for our consideration

POINT I

DENYING DEFENDANT HIS RIGHT TO CONFRONTATION, THE TRIAL JUDGE ADMITTED A LABORATORY CERTIFICATE IN EVIDENCE, OVER DEFENDANT'S OBJECTION, AND WITHOUT EXPERT TESTIMONY OF THE ANALYST WHO PERFORMED THE FORENSIC TESTS. U.S. CONST. AMEND. VI. XIV; N.J. CONST. ART. 1, PAR. 10.

POINT II

THE TRIAL JUDGE ERRED BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WITHOUT AN EVIDENTIARY HEARING, THEREBY VIOLATING THE DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND. IV, XIV; N.J. CONST. ART. I, PAR. 7.

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE.

For the reasons that follow, we affirm the conviction and the five-year sentence. However, with the State's consent, we remand for the limited purpose of entering a corrected judgment of conviction (JOC) awarding defendant an additional 195 days of jail credit.

I

In light of the issues presented, we briefly summarize the State's case as presented at the trial. During undercover surveillance, the police noticed defendant standing outside a motel. A car pulled up and an individual later identified as Rasoul Mohammad approached defendant and spoke with him. The two men walked around the side of the motel and then returned, after which Mohammad returned to his car. Because Mohammad had an outstanding warrant, the police stopped the car as it drove away. The other occupant of the car also had an outstanding warrant and, when arrested and searched, she was found to have two envelopes of drugs. The police then returned to the motel and approached defendant with the intention of questioning him about his possible sale of drugs. As they approached, he dropped a small amount of crack cocaine on the ground and they retrieved it. At the trial the State introduced a laboratory certificate identifying the substance as cocaine. Based on that evidence, defendant was convicted of CDS possession.

In challenging his conviction, defendant first claims that the trial court erred in admitting the lab certificate over his objection. The State responds that defendant failed to file a timely pre-trial motion objecting to the admission of the certificate without the testimony of the chemist who tested the drugs.

This is the background. Defendant was arraigned in 2008. During the next four years, he retained and then dismissed five attorneys. On May 11, 2012, about two weeks before the scheduled trial date of May 29, 2012, defendant filed a motion to dismiss his sixth attorney and represent himself. After holding a Farretta2 hearing, the trial judge granted the motion. Defendant then filed a letter stating that he objected to the lab certificate. The trial judge treated the letter as a motion and denied it as untimely. The judge reasoned that defendant received the lab certificate years earlier, and the ten day time limit for filing an objection had long since expired. We find no error in that ruling.

Pursuant to Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.2d 3l4 (2008), a laboratory report of the type at issue here constitutes testimonial hearsay. Absent a waiver, a defendant has a Sixth Amendment right to confront and cross-examine an appropriate witness from the testing laboratory. See State v. Michaels, 219 N.J. 1, 6-7 (2014). However, this right can be waived by failing to make a timely objection pursuant to State procedural rules. See State v. Williams, 219 N.J. 89, 98 (2014).

New Jersey has adopted such a rule, N.J.S.A. 2C:35-19, requiring a defendant to object to a lab certificate within ten days after receipt. Further, an objection must assert that the composition, quality or quantity of the substance may be inaccurate. State v. Miller, 170 N.J. 417, 436 (2002). Not only was defendant's motion extremely untimely, there is no indication in this record that he raised any of the good faith objections Miller requires. Consequently, the objection was waived. State v. Simbara, 175 N.J. 37, 48 (2002). We find no abuse of the trial court's discretion in declining to relax the time limit, as there was no good cause for the delay and the motion was raised shortly before a scheduled trial date. See N.J.S.A. 2C:35-19(c). We affirm on this point without prejudice to defendant's right to file a petition for post-conviction relief, should he have legally competent evidence that challenging the lab certificate could have changed the result of the trial. See State v. Cummings, 321 N.J Super.154, 164-65 (App. Div.), certif. denied, 162 N.J.199 (1999).

Defendant next challenges the trial judge's refusal to entertain his suppression motion because it was untimely. We find no error in that ruling. The motion was years out of time. After ruling that the motion was untimely, the judge also explained to defendant why such a motion was highly unlikely to be successful even if entertained.

Defendant's motion stated simply that he was "asking for an order suppressing all evidence during this warrantless search without any reasonable articulable suspicion or probable cause."3 The trial judge explained to defendant that, in preparation for the hearing, he had reviewed the State's discovery package and saw no possible meritorious basis for a suppression motion. Essentially, the State's case was that Officer Mayer approached defendant and saw that defendant's right fist was clenched. As the officer got closer, he saw defendant open his hand and saw small white objects fall to the ground, which the officer then retrieved. Defendant's claim was that he did not possess any drugs. However, in the absence of a factual allegation that the officer somehow conducted an unlawful search, that claim is essentially irrelevant to a suppression motion. Perhaps if defendant had asserted a colorable Fourth Amendment contention, we might look more closely at the judge's rejection of his suppression motion as untimely. However, on the record presented, the motion appeared patently without merit and we find no abuse of the judge's discretion in declining to entertain it some four years out of time.

Finally, defendant argues that the five-year sentence was excessive for a third-degree possessory drug offense. While in other circumstances, a five-year term for possessing a small amount of cocaine might seem excessive, in the circumstances presented here we cannot find that the sentence was shocking to the conscience or otherwise erroneous. See State v. Roth, 95 N.J. 334, 363-64 (1984).

Defendant has a fairly extensive criminal record, which the court properly considered. However, evaluating the "real time" consequences of this sentence, the judge also correctly noted that defendant will, in all likelihood, spend little or no additional prison time because the sentence was imposed concurrent to a five-year term imposed in 2011 and the judge awarded defendant 407 days of gap time. In fact, at the January 14, 2013 sentencing hearing, defendant thanked the court for the concurrent sentence. We also note that the judge waived any suspension of defendant's driver's license, so he could more quickly return to gainful employment on his release from prison. Under these circumstances, we find no basis to disturb the five-year sentence.

However, we remand to enter an amended JOC awarding an additional 195 days of jail credit. Defendant was originally awarded 195 days of jail credit which were then deleted in an amended JOC on February 13, 2013, because they were awarded on the prior sentence. By letter dated November 14, 2014, both sides agreed that under State v. Hernandez, 208 N.J. 24 (2011), defendant is entitled to the 195 days of jail credit.

Affirmed in part, remanded in part.

1 The sentence imposed here was "flat," meaning that it did not involve any period of parole ineligibility. The pre-existing sentence included a two and one half year parole bar.

2 Farretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

3 The motion is not included in the appendices. However, the trial judge quoted from the motion during the May 11, 2012 hearing.