STATE OF NEW JERSEY v. NORMAN POLANCO

NOT FOR PUBLICATION WITHOUT THE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.

NORMAN POLANCO,

Defendant-Appellant.

___________________________________________

March 26, 2015

Submitted February 10, 2015 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-02-0327.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Norman Polanco appeals from his conviction for first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A.2C:35-5(a)(1), -5(b)(1), and hindering prosecution, N.J.S.A.2C:29-3(b)(1).1 He also appeals from the aggregate sentence of twelve years in prison with a four-year parole bar.

On this appeal, defendant presents the following points for our consideration

POINT I. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO PRESENT A COMPLETE DEFENSE AND TO SHOW THIRD-PARTY GUILT, AND BECAUSE THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION.

POINT II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION. (NOT RAISED BELOW)

POINTIII. THE TRIAL COURT'S "APPLE PIE" CIRCUMSTANTIAL EVIDENCE CHARGE WAS BIASED TOWARDS CONVICTION AND UNDERMINED DEFENDANT'S PRESUMPTION OF INNOCENCE. (NOT RAISED BELOW)

POINT IV. THE 12 YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION FOR POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE ON COUNT TWO WAS MANIFESTLY EXCESSIVE.

In a supplemental pro se brief, defendant presents these additional points

POINT I. DEFENDANT WAS DENIED HIS RIGHT OF A FAIR TRIAL WHEN DETECTIVE [ ]PEREZ WAS ALLOWED TO TESTIFY AS BOTH A FACT WITNESS AND AN EXPERT WITNESS OVER THE OBJECTION OF THE DEFENSE.

POINT II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHEREFORE THE CONVICTION SHOULD BE SET ASIDE AND THE INDICTMENT MUST BE DISMISSED. (NOT RAISED BELOW)

POINT III. THE STATE DENIED DEFENDANT A FAIR TRIAL BY HIDING BEHIND A FALSE PRETENSE OF INFORMANT'S PRIVILEGE IN ORDER TO PRESENT A FALSE NARRATIVE TO THE JURY THAT THE INFORMANT WAS SOMEONE OTHER THAN HECTOR ACEVEDO FIGUEROA. (NOT RAISED BELOW)

Having reviewed the record in light of the applicable law, we find no merit in any of defendant's arguments, and we affirm the conviction and the sentence.

I

At the trial, the State presented the following evidence through a series of police witnesses. On August 23, 2011 Sergeant Borzotta of the Bergen County Prosecutor s Office received information that a confidential informant would be able to set up a drug sale between an undercover officer and a suspected drug dealer, later identified as Hector Acevedo Figueroa (Figueroa).2 It was arranged that two undercover officers, Detective Fernandez and Detective Perez, posing as girlfriend and boyfriend, would make the buy that night in Edgewater, Bergen County, while other officers kept them under surveillance. One of the goals of the investigation was to determine if this initial sale might lead to a larger purchase and possibly the discovery of Figueroa's supplier.

On August 23, 2011, Detective Fernandez arranged for a purchase of cocaine from Figueroa, and told him that her "boyfriend" would make a larger purchase of cocaine from him if they liked the product. Detective Perez, posing as the boyfriend, then introduced himself to Figueroa and paid for the cocaine. Later that day Detective Perez, again posing as the boyfriend, called Figueroa seeking to purchase a larger quantity of cocaine and they agreed to meet around 8:00 or 8:30 p.m. at Figueroa s place of employment, a barber shop in Union City, Hudson County, to negotiate the deal.

Detective Perez met with Figueroa as planned while Detective Fernandez waited in their unmarked police car a few blocks away. While standing outside the barber shop, Detective Perez and Figueroa negotiated a price for 500 grams of cocaine. According to Detective Perez, during those negotiations, Figueroa consulted with another man, later identified as defendant Polanco, who was standing nearby.3 After an agreement was reached on the price of $34 per gram, for a total of $17,000, Detective Perez spoke directly with defendant, who agreed to call him when he had the cocaine on hand.

Around 10:00 p.m., defendant called Detective Perez and told him he had the cocaine. When the detective arrived back at the barber shop, he told defendant that he did not have the $17,000 with him, and he wanted to see the drugs before calling his "girlfriend" who would then deliver the cash. Defendant agreed, briefly left the barber shop, and returned shortly thereafter with a small shopping bag. Detective Perez, Figueroa, and defendant went into the back room of the barber shop, where defendant produced the cocaine from the bag. After inspecting the cocaine, Detective Perez called Detective Fernandez and told her that he was in the back room, the cocaine was there, and she should bring the money. As he explained at trial, that call served as the pre-arranged signal for a large back-up team, composed of officers from both Bergen County and Union City, to move in and make the arrest.

After alerting the back-up officers, Detective Fernandez then walked into the barber shop, pretending to have the money, and the arrest unit burst into the shop behind her. Detective Fernandez was placed under arrest in the front of the barber shop to maintain her cover.

Detective Perez testified that when the arrest unit came into the shop yelling "police," defendant opened the back exit and threw the bag of cocaine out the door. The officers tackled Detective Perez and placed him under arrest to maintain his cover, but as he lay on the floor facing away from the back room, he heard an officer shouting that someone in the back room was refusing to give the officer his hands to be handcuffed.

Sergeant Borzotta, the first member of the arrest unit to arrive in the back room, testified that he saw defendant toss a bag out the back door. He also testified that, while conducting surveillance of the shop earlier, he had seen defendant holding the same bag. Sergeant Borzotta later retrieved the shopping bag, which contained a large quantity of cocaine. Sergeant Borzotta testified that Figueroa, who was also arrested at the scene, was later mistakenly released by the Union City police, who did not know he was involved in the drug transaction.4

Detective Massaro, also with the arrest unit, testified that he and Detective Ingrassilino followed Sergeant Borzotta into the back room of the barber shop and attempted to arrest defendant. He testified that defendant resisted arrest and there was an ensuing struggle to arrest him. Detective Massaro also thought he saw defendant reaching for a gun during the struggle, although the object at defendant's waist later proved to be a cell phone. However, according to Massaro, at the time he thought the object was a gun and believed his life was in danger. Defendant was injured in the struggle and taken to the hospital by ambulance.

Multiple eyewitnesses identified defendant as being involved in the transaction at issue. Detective Perez identified the defendant as the man with whom he negotiated the cocaine purchase. Sergeant Borzotta identified defendant as the man he saw and heard negotiating with Detective Perez outside the barber shop.5 Detective Massaro identified defendant as the man he saw talking with Detective Perez outside the barber shop, the man he saw walking into the barber shop with a bag slightly after 10:00 p.m., and the person he arrested.

Officer Huergo testified that he was conducting surveillance from the front stoop of a building across the street from the barber shop. He identified defendant as one of the men Detective Perez was talking to outside the barber shop. He also testified that after those negotiations, defendant walked in and out of the shop talking on his cell phone. According to Officer Huergo, a brown minivan then pulled up and defendant took a shopping bag from the minivan, later identified as the bag that held the cocaine.

In his trial testimony, defendant denied that he knew about or was involved in any drug dealing at his barber shop. He asserted that he was an innocent bystander whom the police spontaneously attacked and wrongly arrested. Defendant testified that he knew Figueroa only as one of the barbers who worked in his shop. He testified that he did not know Figueroa was involved in selling drugs.

According to defendant, at around 4:30 p.m. on August 23, 2011, he went to eat at a local bodega, where he saw Figueroa eating with a customer nicknamed "Frasey" and several other men defendant did not recognize. At around 5:00, defendant finished eating and went to the barber shop. At around 8:00 p.m., Figueroa came into the shop where Frasey and another man were waiting for him. Defendant testified that he left the shop several times to call his wife on his cell phone, because it was noisy inside. At one point, he saw Figueroa outside the shop talking to someone defendant could not identify. Defendant denied discussing drugs or the price of drugs with Figueroa or anyone else.

At around 9:00 p.m., defendant went outside again to call his wife, and from outside the shop, he saw Figueroa enter the back room with Frasey and a third individual. He testified that he re-entered the shop and headed toward the back, because he did not allow that many people in the back room. However, after seeing that nothing unusual was happening, he turned around and left the back room. According to defendant, at that moment the police burst into the shop and something happened that caused him to lose consciousness. When he regained consciousness, he realized that he had been physically attacked. Defendant denied having a shopping bag when he entered the back room, denied throwing the bag out the back door, and denied resisting arrest. He testified that he suffered serious injuries to his face during the incident, a contention the State did not dispute.

Defendant's wife testified that she called her husband often while he was at work, and called him around 9:00 p.m. on August 23, 2011. She stated that defendant told her he was outside the shop but was going inside to see why there were a lot of people going into the back room. She testified that the next thing she heard was the sound of someone being hit and "a commotion." After that she was unable to contact her husband on his cell phone.

Eli Santos testified that he was in the barber shop playing dominoes on the night of August 23, 2011. He testified that he saw Figueroa and two other men he did not recognize enter the back room at about 9:00 or 10:00 that night. He stated that defendant then went into the back room, and a few minutes later the police arrived.

In summation, defense counsel argued that defendant was an innocent victim of police brutality, and that the police falsely accused him of selling drugs to avoid a lawsuit over the injuries defendant suffered. In response, the prosecutor emphasized the overwhelming evidence of defendant's guilt, based on the testimony of multiple witnesses. The prosecutor also pointed out that defendant's own witness, Santos, testified that defendant was in the back room with Figueroa when the police arrived.

II

On this appeal, defendant argues that his theory of the case at trial was that defendant was "misidentified" and that some "unidentified person" was the one who negotiated the drug deal with Detective Perez and Figueroa. He argues that the trial court erroneously prevented him from presenting evidence of misidentification and "third-party guilt." We review the trial court's evidentiary ruling for abuse of discretion. State v. Fortin, 178 N.J. 540, 591 (2004). We find none.

The issue arose in this context. During Detective Massaro's cross-examination, defense counsel sought to show Massaro a photograph of several individuals who had been arrested in a completely different case. The prosecutor objected at sidebar, questioning how defense counsel had obtained a photo that appeared to be from a police lineup; arguing that the photograph was irrelevant; and expressing concern that defense counsel might be trying to get Massaro to identify a confidential informant.

In response to the judge's request for a proffer, defense counsel stated that he wanted to ask Massaro if a particular individual shown in the photograph was in the barbershop, or standing outside the barbershop, at the time of the arrests. He then represented to the court, "There will be testimony, I believe, that my client knows one of these two people." The judge ruled that there was an insufficient foundation to question Massaro about suspects in a different case, but that if defendant "wants to blame [the drug sale] on one of these people, he can get up on the stand and do that." Defense counsel then withdrew the question, stating, "I'll reserve it until my case goes in."

However, the photograph was never mentioned again. Although defendant testified, he was not asked if any of the individuals whom he saw in the back room with Figueroa was also in the photograph. Nor was he shown the photograph and asked if he could identify anyone in the photo. As previously noted, defendant had a very distinctive appearance, with a long ponytail. There was no evidence that anyone in the photo resembled defendant, or that someone who looked like defendant was in the back room or outside the barbershop and could have been misidentified as being defendant.

A defendant has a constitutional right to argue that someone else committed the crime and to introduce evidence of third-party guilt. Fortin, supra, 178 N.J. at 590. Such evidence is admissible so long as it is "capable of raising a reasonable doubt of defendant's guilt." Id. at 591 (quoting State v. Koedatich, 112 N.J. 225, 299 (1988)). However, "there must be some link . . . between the third party and the victim or crime, capable of inducing reasonable people to regard the evidence as bearing upon the State's case. The connection between the third party and the crime cannot be left to conjecture." Ibid. (citations and quotation marks omitted).

In this case, there was no evidence that someone other than defendant was involved in the drug deal with Detective Perez and Figueroa at the barbershop. Nothing in this record suggests that the question posed to Massaro was anything more than either a fishing expedition or an attempt to inject a red herring into the case. Moreover, "the evidence did not suggest, even inferentially" that defendant was mistaken for someone else who was involved in the drug deal. Fortin, supra, 178 N.J. at 593.

In his second point, defendant argues, for the first time on appeal, that the prosecutor's summation was "overzealous" in referring to the police witnesses as "dedicated officers, people who put their lives on the line." We agree that it would be improper for a prosecutor to suggest to the jury that they should give a police officer's testimony greater weight because he or she is in law enforcement. However, in this case, the prosecutor's comment was a response to defense counsel's summation portraying the officers as having beaten up his client for no reason and then having falsely accused him of drug dealing. Defense counsel repeatedly referred to the extent of his clients' injuries, inferring that the police must have done something wrong because defendant was badly injured.

In that context, the prosecutor reminded the jury that the officers were brave people who were just "doing their job." The comment also inferentially reminded the jurors that the officer who hit defendant believed that his life was in danger because defendant appeared to be reaching for a gun. Finally, given the overwhelming evidence of defendant's guilt, even if the comment should not have been made, it did not have a clear capacity to produce an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

Next, defendant argues, again for the first time on appeal, that the judge committed plain error by giving an initial jury instruction containing an example of circumstantial evidence which favored the prosecution. In addition to the classic "snow on the ground" instruction,6 the judge used an example involving a child who is told not to eat a pie. His mother later finds a partly eaten pie and, although her son denies eating it, he has crumbs all over his face. The example ends by telling the jury that in that situation, "the circumstantial evidence . . . is more satisfying, is more persuasive that, in fact, he had taken the pie even though no one actually saw [him] take the pie."

Defendant argues that the charge is inherently biased in favor of the State. We summarily rejected the same argument in State v. Kelly, 406 N.J. Super. 332, 352-53 (App. Div. 2009), aff'd on other grounds, 201 N.J. 471 (2010). And, in this case, resting as it did primarily on direct rather than circumstantial evidence, any error in such a charge would be harmless beyond a reasonable doubt.

Nonetheless, although the example was not problematic in this case, in a closer case or one with different evidence, it might be. For future reference, we are inclined to agree that it would be the better practice to use the traditional "snow on the ground" example, because it is not specifically keyed to an accusation of wrongdoing, and does not, even inferentially, imply that circumstantial evidence of guilt may be "more persuasive" than a defendant's insistence on his innocence.

We review the judge's sentencing decision "in accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The judge fully explained her reasons for imposing the twelve-year sentence, which was close to the low end of the sentencing range for a first-degree crime and included a concurrent sentence on the hindering charge. We find no basis to intervene.

D

Defendant's pro se appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The jury acquitted defendant of resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), and aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a).

2 Pursuant to the parties' stipulation, the trial judge advised the jury that this information was presented solely to explain why the police undertook their investigation.

3 Several police witnesses, including those conducting undercover surveillance of this negotiating session, testified that defendant was conspicuous because he wore his hair in a long ponytail.

4 Borzotta explained that he could not communicate that information to the Union City officers at the scene, without destroying the anonymity of the two undercover officers.

5 Borzotta overheard part of the drug negotiations through a transmitting device Detective Perez wore on his person.

6 The "snow on the ground" example is the one used in the Model Charge. See Model Jury Charge (Criminal), Circumstantial Evidence 1993).