STATE OF NEW JERSEY v. JOSHUA A. MALDONADO

NOT FOR PUBLICATION WITHOUT THE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.

JOSHUA A. MALDONADO,

Defendant-Appellant.

December 9, 2015

Argued October 7, 2015 Decided

 
Before Judges Alvarez, Ostrer, and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 12-03-0338.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

David M. Galemba, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Joshua A. Maldonado was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon while committing a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1(a) (count two); second-degree possession with intent to distribute ecstasy, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2) (count three); third-degree possession of ecstasy, N.J.S.A. 2C:35-10(a)(1) (count four); third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and 2c:35-5(b)(11) (count six); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count seven); and fourth-degree obstruction, N.J.S.A. 2C:29-1(a) (count eight).1

On September 13, 2013, after denial of his motion for a new trial, defendant was sentenced on count three to seven years imprisonment. Count four was merged into count three. On count six, into which count seven was merged, the court imposed a three-year sentence to run concurrent with count three. Eighteen months imprisonment was imposed on count eight also concurrent to count three. On count two, into which count one was merged, defendant was sentenced to a seven-year term, subject to three and one-half years of parole ineligibility, consecutive to his sentence on counts three, seven, and eight. Thus, the aggregate sentence was fourteen years with three and one-half years of parole ineligibility. Appropriate fines and assessments were imposed. Defendant appeals, and we affirm.

I.

Our review of the trial record establishes the following. On September 14, 2011, Vineland Police Officers James Day and Louis Platania were travelling southbound on Third Street when they saw defendant in the passenger seat of a northbound automobile. As they turned to follow, they saw that defendant had slouched down and turned his face away from them. Because the Vineland Police wanted to speak to him, the officers followed.

When the car turned into an apartment complex, Day and Platania saw defendant jump out of the moving vehicle, carrying a book bag. Defendant tripped and lost his grasp on the bag, which Platania grabbed while chasing defendant into an adjoining apartment complex. Upon reaching the second apartment complex, defendant attempted to kick in the door to Unit B-7. Unable to gain entry, defendant tried other doors until he disappeared into Unit B-4. Defendant's brother lived in B-7.

The book bag defendant dropped was later found to contain a loaded handgun, over fifty grams of marijuana, more than one-half ounce of ecstasy, and a digital scale. Defendant stipulated to the admission of the State Police laboratory test results.

Platania, a seven-year veteran who had attended numerous schools related to narcotics and street crime, testified that when searching the book bag he saw "[s]everal large bags of green and brown leaf vegetation which smelled and looked just like marijuana from [his] prior training and experience as a police officer." He also found "a couple of sleeves of . . . orange pills that were stamped with a fairy and then a number" and "[j]ust based on the actual way the pill[s] looked with the stamp on it . . . look[ed] just like [e]cstasy."

Lieutenant Daniel Leon from the Burlington County Prosecutor's Office testified as the State's expert in "narcotics, distribution, and investigation." When asked what "an average or common drug distributor or dealer, . . . [would] utilize to protect their investment[,]" Leon said that "[i]n looking at the evidence of seized in this case, he saw that there was a 9mm handgun that [] [was] seized[,]" and that such a weapon would likely be found on a drug distributor rather than a drug buyer. He opined that there were more "benefits for a drug trafficker to have a handgun in their possession or readily available, versus a drug user that really [would not] benefit from possessing a gun or . . . being caught with a gun on their person."

When asked hypothetically if the presence of a pound of marijuana, 19.6 grams of ecstasy, a small digital scale, and a handgun, indicated that the drugs were possessed for personal use as opposed to distribution, Leon responded that in his opinion, the drugs were possessed with intent to distribute. Since the defense theory was misidentification, trial counsel did not cross-examine Leon.

Day testified that prior to September 14, 2011, he had seen defendant "[m]aybe five to ten times." He acknowledged that his earlier interactions with defendant were "[v]ery brief . . . a minute or two at the most." Day knew defendant had a brother, but could not recall his appearance, even though he had seen him in B-7 on the day of the incident.

Platania testified that he had seen defendant "[f]ifteen to [twenty] times" between 2009 and September 14, 2011, and had spoken with him approximately five times, once for about ten minutes, and on the remaining occasions, for one to two minutes. He, like Day, identified defendant as the person in the passenger seat of the car.

Platania said that the person who jumped out of the vehicle took a spill as he ran, and when he got up, he directly looked at Platania. He "just locked eyes" with him, and then turned and fled. Platania obtained a warrant authorizing the search of the interior of the book bag once the officers felt the exterior, realized it contained a handgun, and removed and secured it.

Platania weighed the marijuana, and said "[i]t came to just over a pound." He also weighed the ecstasy pills and found the total to be 23 grams. The lab did not weigh all of the marijuana or the ecstasy, but verified that the substances were as Platania suspected. When the lab took partial weights, it found that the marijuana came to 110 grams, and the ecstasy to 19.66 grams.

In closing, trial counsel reiterated the defense theory that because the officers did not have an adequate opportunity to view the suspect, they misidentified defendant as the person who ran and dropped the book bag containing contraband. Trial counsel also argued that even if officers initially erroneously identify a suspect, when they "come in to testify, they're going to testify that they're sure to their opinion . . . . [T]heir job is to make decisions and then like a baseball umpire, stick with the decision." In closing, the State responded: "[s]o a trained police officer who sees this individual four separate times, albeit for a total of a few seconds at a time, two minutes total, that is magnified in his eyes. It is not just, oh, look at the clock and count one[]one-thousand, two[]one-thousand. For . . . Platania that time, I submit to you, likely seemed longer."

The jury commenced deliberations on a Thursday at 3:30 p.m. and were informed that if additional time was necessary, they could continue deliberations until 5:00 p.m. If that did not suffice, they would return the following Tuesday. At 4:50 p.m., the jury informed the court that it had reached a verdict. Defendant's mother began to cry as the jury verdict was announced.

According to the trial judge who described his observations on the record, juror number seven turned to defendant's mother when this occurred and began to take out tissues. When the jury was polled, juror number seven stated she was undecided.

At sidebar, counsel and the court discussed the "undecided" response, and the judge indicated his intent to return the jury on Tuesday for additional deliberations. In his opinion "[juror number seven] was affected by the antics of the mother." He also indicated that should the jury return a verdict at some future point in time, defendant's mother would have to be excluded from the courtroom.

When the judge said he was considering questioning juror number seven, defense counsel responded that "this is a really sensitive time, obviously, in the course of the jury. . . . I'm talking about as far as the trial itself." Counsel went on to state that "[t]o bring a juror in at this point and start questioning her I mean, we don't know whether the problem was a result of what was happening in the jury deliberation room, or what happened with the mother." Defense counsel acknowledged hearing the mother crying, and said that turning around to "see what was happening" was not an unnatural reaction. The judge noted that only juror number seven did so and that he wanted to be certain that she was capable of continuing to deliberate. Defense counsel said: "it's a sensitive time because I know that there's a lot of cases that deal with when you can substitute a juror and when you can't." The judge went on to say he might excuse the juror, but anticipated questioning her that Tuesday. Defense counsel reiterated that he wanted the opportunity to research the issue and that he had a "concern" if the court were to start questioning her. As the colloquy ended, an "unidentified speaker" advised the judge that juror number seven "would like to ask you a question, if possible." The judge would not entertain any question from the juror that day but said he would do so the forthcoming Tuesday.

On Tuesday, while the jury was gathered in the jury assembly room, defense counsel made a motion for mistrial which was denied. The judge advised counsel that he intended to allow deliberations to resume because juror number seven's statement was made after she heard defendant's mother cry, and because she did not say that defendant was not guilty, but only that she was undecided. The judge had drafted a proposed charge which, because counsel did not consent, he did not give. The jury was brought into the courtroom and told to resume deliberations.

After the jurors left to deliberate, the judge advised counsel that jury personnel had just informed him that juror number seven had asked if there was any way she could be "switched out with someone else[.]" Although not entirely clear from the record, the question was apparently raised by juror number seven to court staff while the panel waited in the jury assembly room.

Defendant's attorney renewed his motion for a mistrial, adding that he did not agree that another juror should be substituted for juror number seven. The judge told counsel that he would instruct jury personnel to inform juror number seven that she was to continue to deliberate with the other jurors.

As the morning wore on, the jury sent out a note asking why the driver of the vehicle in which defendant was seen was not called by either defense counsel or the State. As an aside, the judge then informed counsel that he had not responded to juror number seven's question because she was actively deliberating with the other jurors and he did not wish to interrupt that process. He answered the question regarding the driver of the vehicle, however, and later that morning the jury returned a unanimous guilty verdict. When the jury was polled on this occasion, all indicated their agreement with the verdict.

In sentencing defendant, the judge found aggravating factor three, the risk defendant would re-offend, N.J.S.A. 2C:44-1(a)(3), six, his prior criminal history, N.J.S.A. 2C:44-1(a)(6), and nine, the need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge refused to find mitigating factor seven, the lack of a prior criminal history, N.J.S.A. 2C:44-1(b)(7), because defendant had, at nineteen, two prior juvenile adjudications and one diversion. He had also been arrested four times as an adult.

On appeal, defendant raises the following points

POINT I

THE COURT'S CONDUCT WITH REGARD TO JUROR NUMBER SEVEN DENIED MR. MALDONADO DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS (U.S. CONST., AMEND. VI; N.J. CONST. (1947), ART. [I], [ ] 9).

POINT II

THE STATE PRESENTED HIGHLY IMPERMISSIBLE EXPERT TESTIMONY THAT INFRINGED UPON THE JURY'S FACT-FINDING FUNCTION, AND DENIED MR. MALDONADO A FAIR TRIAL, NECESSITATING REVERSAL (U.S. CONST., AMEND VI; N.J. CONST. (1947), ART. [I], [ ] 9). (NOT RAISED BELOW).

POINT III

PLATANIA'S OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN (U.S. CONST., AMENDS[.] VI, XIV; N.J. CONST. (1947), ART. [I], [ ] 1, 9, 10). NOT RAISED BELOW)

POINT IV

THE STATE'S ARGUMENT IN CLOSING BOLSTERING PLATANIA'S ABILITY TO OBSERVE, BASED UPON HIS POLICE TRAINING, WAS OUTSIDE THE RECORD IN THIS MATTER AND CONTRARY TO WELL-ESTABLISHED SCIENCE REQUIRING REVERSAL (U.S. CONST., [AMENDS.] V, VI, XIV; N.J. CONST. [ART.] I, 1[,] 10). (NOT RAISED BELOW)

POINT V

THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. MALDONADO A FAIR TRIAL (U.S. CONST., [AMENDS.] V, VI, XIV; N.J. CONST. [ART.] I, 1[,] 10). (NOT RAISED BELOW).

POINT VI

MR. MALDONADO'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.

II.

A.

We commence our discussion of defendant's first point on appeal by reference to Rule 1:8-10 which states

Before the verdict is recorded, the jury shall be polled at the request of any party or upon the court's motion . . . . If the poll discloses that there is not unanimous concurrence in a criminal action . . . the jury may be directed to retire for further deliberations or discharged.

Judges are thus vested with broad discretion to address situations such as this.

The purpose of polling the jury is to ascertain the concurrence of each member of the panel in the verdict rendered in the courtroom, as opposed to the vote cast by each juror during deliberations. Ragusa v. Lau, 119 N.J. 276, 280-81 (1990). As the Supreme Court has stated,

[b]ecause the trial court has the benefit of hearing a juror's answer and personally observing a juror's demeanor, it is in the best position to ascertain whether hesitancy or equivocation on the part of a juror reflects involuntary or coerced assent. [] However, in exercising its discretion, the trial court has a duty to eliminate all doubt about the unanimity of the verdict to effectuate the poll's essential purpose of ferreting out coerced decisions.

[State v. Milton, 178 N.J. 421, 434 (2004).]

Defendant contends that the judge erred because he did not speak to the juror. Because he failed to do so, he asserts, it is now impossible to ascertain whether her changing her initial equivocal response was the result of coercion or some other pressure that resulted in the eventual guilty verdict.

Generally, a trial court's delay in responding to a question by the jury requires a new trial if there is evidence of reversible error. State v. Bey, 129 N.J. 557, 606-07 (1992), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). In Bey, the Court found that the failure to respond to the jury's question regarding parole eligibility for a life sentence was not reversible error since the question "was an issue of fact[,]" the "delay was not inordinate," and the "jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict." Id.at 607. In this case, the court's delay in answering juror number seven's question after her equivocal response to the polling was at least in part due to trial counsel's understandable reluctance to have the judge unintentionally intrude upon the jury's thought process.

Even the following Tuesday, when the jury resumed deliberations five days later, juror number seven, although initially expressing to court staff an interest in being substituted, made no subsequent direct request to the judge regarding her continued service. She only asked court staff if it were possible and asked the judge nothing at all. Thus, as in Bey, no reversible error occurred because "the jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict." Id. at 607.

Moreover, juror number seven's question related to her service, not any issue with regard to substantive law or facts. By not responding to her tentative inquiries, none of which were made in the courtroom on the record when she had the opportunity to do so, the judge thereby properly shepherded the jury to a unanimous verdict without interfering in "the deliberative process." See State v. Figueroa, 190 N.J. 219, 236, 239-40 (2007).

It is also possible, as the judge speculated, that juror number seven's equivocal response upon being polled may well have been the product of defendant's mother's tears in the courtroom after the announcement of the guilty verdict by the jury foreperson. Whatever the reason, from her silence when in the courtroom before deliberations resumed on Tuesday, and unremarkable participation in the subsequent deliberations, we conclude that her final verdict was not the product of an error by the judge in the exercise of his discretion.

More harm than good may have resulted from any inquiry of juror number seven before additional deliberations took place. Rule 1:8-10 vests in trial judges the discretion to make that decision, and in this case, by allowing the juror to continue deliberating, the confidentiality of the process was protected. The judge's decision was thus not an abuse of discretion. SeeState v. Musa, 222 N.J.554, 569 (2015) ("[I]nquiry into the deliberative process -- delving into the thoughts and views of jurors -- is forbidden.").

B.

Next, defendant contends that Leon's testimony denied him a fair trial because it exceeded the boundaries of expert testimony. The expert testimony was not objected to at trial; our review is therefore under the plain error rule. See State v. Miraballes, 392 N.J. Super. 342, 360-61 (App. Div.), certif. denied, 192 N.J. 75 (2007). Any error will be disregarded unless it is "clearly capable of producing an unjust result." R. 2:10-2.

Certainly, an expert may offer an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. It is undisputed that expert testimony which tells the jury that which is obvious "usurp[s] the jury's sole responsibility to find the facts." State v. Sowell, 213 N.J. 89, 102 (2013).

Expert testimony in criminal trials can be helpful to "ordinary jurors to understand the difference between drugs possessed for distribution as opposed to personal use[.]" Id. at 100. Under N.J.R.E. 703, no error occurs if an expert bases an opinion on facts perceived or made known to them during or before a trial. However, experts may not opine directly on a defendant's guilt. Sowell, supra, 213 N.J. at 103 (quoting State v. Odom, 116 N.J. 65, 79 (1989)). Additionally, the opinion should only reflect the facts that are in evidence. Id. at 106-07.

In State v. Reeds, 197 N.J. 280, 295 (2009), in response to the hypothetical as to the reason a person would possess several hundred bags of heroin, the expert stated that "they would be possessed with the intent to distribute." The Court found no error with this opinion. Ibid.

In this case, Leon's testimony undoubtedly conformed to the facts in evidence. Ultimately, however, he responded to a hypothetical question. Moreover, Platania had already testified that a handgun was seized from the book bag before the jury heard from Leon.

The expert's statement that persons engaged in drug trafficking would be more likely to possess guns than mere users has been previously found to be unobjectionable. See State v. Spivey, 179 N.J. 229, 240 (2004) (narcotics expert testified that drug dealers often carry guns for protection); see also State v. Samuels, 189 N.J. 236, 257 (2007) ("Nor is it unusual for drug dealers, who are fearful of having their money or drugs stolen, to carry guns during a drug transaction in order to protect themselves from the buyers."). The subject was properly explored through the expert in this case. It was not error, much less plain error.

C.

Defendant next contends that Platania's testimony identifying the drugs overstepped the bounds of State v. McLean, 205 N.J. 438, 461 (2011) (holding that police officers testifying as lay witnesses must limit testimony to factual recitations). The evidence was not objected to and is therefore subject to review under the plain error rule.

Platania's testimony regarding his observations and the conclusion he drew therefrom were unobjectionable given his training and experience. It was rationally based on his perception and would assist in determining a fact in issue. See N.J.R.E. 701. Police officers are routinely permitted to testify as lay witnesses based on their personal observations. State v. Labrutto, 114 N.J. 187, 198 (1989). Furthermore, counsel stipulated as to the admissibility of the laboratory results which corroborated his opinion. There was no error in the admission of his testimony, much less error which prejudiced the outcome.

D.

Defendant, building on his argument regarding Platania's allegedly improper testimony, argues from that point that the State's reference to the officer's testimony in closing requires reversal. His failure to object to the State's closing statement, however, suggests that he "did not believe the remarks were prejudicial at the time they were made." See State v. Frost, 158 N.J. 76, 84 (1999). We review the objection under the plain error standard, State v. Daniels, 182 N.J. 80, 95 (2004), and in order to warrant reversal, the State's conduct must have been "clearly and unmistakably improper" and egregious enough to deprive defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 522 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

Defendant charges that the State was attempting to improperly bolster Platania and Day's identification of him as the person who fled the vehicle by reminding the jury that they were "trained police officer[s]." Prosecutors are, however, entitled to respond when the credibility of their witnesses is attacked. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000).

In this case, the defense theory was that the officers had misidentified the suspect. Trial counsel spent considerable time in his closing statement focused on the issue.

Therefore, we consider the prosecutor's comments to have been reasonably related to the scope of the evidence presented. Frost, supra, 158 N.J. at 82. The suggestion was not that the officers should be believed simply because of their employment, State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969), or that the officers would be sanctioned if the jury did not find their testimony convincing. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). The passing comment regarding the officers' training was intended only to make their identification more convincing to the jury.

Furthermore, both officers had had a number of prior encounters with defendant. They did not testify that their training would have preternaturally enhanced their observations. They were familiar with someone from prior encounters with them and testified solely on that basis. Even if the comment was error, it was harmless error that would not have prejudiced the outcome.

E.

We do not consider defendant's point five to warrant discussion in a written opinion. See R. 2:11-3(e)(2). There were no errors which in the aggregate warrant reversal.

F.

Finally, defendant challenges his sentence as excessive. We affirm sentences unless (1) the sentencing guidelines were not followed; (2) "the aggravating and mitigating factors found by the sentencing judge were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

The sentencing court must also "state . . . the factual basis for supporting [a] finding of [a] particular . . . factor[]" and "describe the balancing process leading to the sentence." R. 3:21-4(g); State v. Kruse, 105 N.J. 354, 359-60 (1987).

Far more must be demonstrated than defendant's bald assertion that since he can be "adequately punished" for the crime with a lesser sentence, the one imposed was excessive. Additionally, there was no basis for the sentencing judge to have considered mitigating factor seven as defendant had a prior juvenile history. The fourteen-year term imposed in this case fell within the sentencing guidelines, the aggravating and mitigating factors were based upon competent and credible evidence in the record, and the sentence was not so clearly unreasonable as to shock our conscience.

Affirmed.

1 Count five, charging defendant with second-degree possession with intent to distribute ecstasy within 500 feet of public housing, N.J.S.A. 2C:35-7.1(a) and 2C:35-5, was dismissed by the State prior to the jury's deliberations.