STATE OF NEW JERSEY v. YOHAN BALCACER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YOHAN BALCACER, a/k/a

JOHAN RIBAS-BALCACER,

Defendant-Appellant.

__________________________________

November 15, 2016

Submitted October 13, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-02-0302.

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

GurbirS. Grewal,Acting BergenCounty Prosecutor,attorney forrespondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Yohan Balcacer appeals from his conviction and sentence after trial by jury. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm.

We discern the following facts taken from the trial evidence. In October 2011, the Bergen County Prosecutor's Office, Narcotics Task Force (NTF), received and acted upon information that Jose B. Rodriguez was involved with heroin distribution. Detective Michael Perez of the NTF contacted Rodriguez and posed as an interested buyer. Perez and Rodriguez had numerous conversations which resulted in an agreement whereby Rodriguez would sell Perez two kilos of heroin for $100,000. A meeting was set for the transaction on October 18, 2011, at the Hampton Inn in Ridgefield Park.

The NTF held a briefing on the morning of the planned transaction. Perez was equipped with a recording device and transmitter so that backup officers could monitor the conversation between Perez and Rodriguez. Perez prearranged a distress signal should he require assistance from the backup officers.

Meanwhile, Rodriguez was at his home in Union City waiting for a ride to the Hampton Inn. Rodriguez met defendant and Ronald Greene at the intersection of New York Avenue and 32nd Street in Union City at around 10:30 a.m. Defendant was driving a gray Toyota Camry with New York license plates. While driving to the motel, the men discussed their plan. Once Perez offered the money to Rodriguez, the others would steal back the drugs and flee.

At approximately 11:45 a.m., other backup officers arrived at the Hampton Inn to secure a vantage point. Perez spoke to Rodriguez indicating he was en route. Rodriguez advised Perez that he was also en route. At this time, backup officers observed a silver Chevrolet Malibu with New Jersey license plates and a gray Toyota Camry driven by defendant enter the parking lot. The backup officers observed Rodriguez exit the Camry, walk to the hotel's front entrance, and sit on a bench. The backup officers advised Perez that Rodriguez had already arrived.

Perez arrived at the Hampton Inn approximately twenty-five minutes later, parked his car in the center of the lot, and phoned Rodriguez to coordinate a meeting place. Rodriguez walked to Perez's car, entered the passenger-side door, and handed Perez a sample of a tan, powdery substance. Perez suggested he leave with the sample to test the quality and then would meet with Rodriguez in an hour to pay for the heroin. Rodriguez agreed with the suggestion and exited the vehicle. Perez then drove to a pre-determined location where he met with Sergeant Anthony Martino of the NTF. A field test was conducted which confirmed the substance to be heroin. Perez advised Rodriguez by phone that he would return at 1:00 p.m. with the $100,000.

While this was occurring, the Malibu left the Hampton Inn and proceeded to an Exxon gas station. Defendant remained at the Hampton Inn, and Rodriguez exited the Camry holding a package that he placed in bushes near the hotel. Shortly thereafter, the Malibu returned to the Hampton Inn, parking in the rear lot.

Perez returned to the Hampton Inn and approached Rodriguez, who was sitting on a bench near the main entrance. Rodriguez and Perez walked to the bushes where the plastic bag was located. Perez opened the bag and observed a tan, powdery substance similar to the sample. Rodriguez then inquired about the money. Perez responded that it was in his car. As Rodriguez and Perez walked back towards the car, the Malibu approached from the rear of the hotel moving slowly past Perez, with both Brandon Segar and Greene staring at him. The Malibu then parked next to Perez's car. Perez was approached by Greene who racked the slide on a handgun and, from two feet away, pointed it at Perez's head. Perez ran toward the rear of the hotel yelling "gun." Perez remained at that location until he was met by a backup officer.

Greene tried to open Perez's car when members of the Bergen County Sheriff's Department, Criminal Investigation Unit, converged on the scene. Greene threw the gun under Perez's car and attempted, without success, to enter the Camry as it sped away.

The Camry's license plate was broadcast over the State Police Emergency Network (SPEN). A Leonia police officer saw defendant's car heading east on Route 46, activated his vehicle's lights and siren, and engaged in a pursuit. Defendant was weaving in and out of traffic while passing cars on the shoulder of the road. While driving across the George Washington Bridge, the police officer estimated defendant's car reached speeds in excess of 100 miles per hour. Once defendant crossed into the Bronx, the police officer broke pursuit. An arrest warrant was issued for defendant's arrest. He was ultimately apprehended on October 20, 2011.

A Bergen County grand jury returned a twenty-four count indictment against defendant, Rodriguez, Segar and Greene. Defendant was charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count two); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); second-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count four); third-degree possession with intent to distribute an imitation drug, N.J.S.A. 2C:35-11 (count five); first-degree armed robbery, N.J.S.A. 2C:15-1 (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts seven and sixteen); second-degree possession of a handgun with the requisite permit, N.J.S.A. 2C:39-5b (counts eight and seventeen); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count nine); second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1(a) (counts ten and eighteen); second-degree eluding, N.J.S.A. 2C:29-2b (count nineteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count twenty-one).

A bifurcated jury trial involving only defendant commenced on February 25, lasting ten days, ending March 14, 2014. During the trial, the State played surveillance footage of the drug transaction. The footage was shown several times to four of the police witnesses while they narrated the events depicted on the video. Defendant was convicted of third-degree possession with intent to distribute an imitation drug and second-degree eluding. He was acquitted on all other counts.1

On July 25, 2014, defendant's motion for a new trial was denied. That same day, the court sentenced defendant to a four-year term of imprisonment with parole ineligibility of two years for possession of an imitation drug, and to a consecutive eight-year term of imprisonment with parole ineligibility for four years for eluding. Applicable fines and fees were imposed.

Defendant raises the following points on appeal

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED THE PROSECUTOR TO REPETITIVELY PLAY HOTEL SURVEILLANCE FOOTAGE OF THE INCIDENT BEFORE THE JURY. (PARTIALLY RAISED BELOW)

POINT II

THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

Additionally, defendant raises the following points in a pro se supplemental brief

POINT I

THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS WERE VIOLATED WHEN THE COURT ERRED IN COMPELLING A DEMONSTRATION OF HIS "LIMP" BEFORE THE JURY IN VIOLATION OF AMENDMENT V, UNITED STATES CONSTITUTION.

POINT II

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW DUE TO THE COURT'S ERRONEOUS ADMISSION OF "OTHER BAD ACTS" WITHOUT CONDUCTING A N.J.R.E. 404(B) HEARING AS WELL AS FAILING TO GIVE LIMITING AND/OR DISREGARDING INSTRUCTIONS TO THE JURY PURSUANT TO N.J.R.E. 404(B).

POINT III

STATE'S COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE REPEATEDLY ELICITED TESTIMONY THAT THE DEFENDANT'S PHOTO WAS DERIVED FROM "POLICE DATABASE" AS WELL AS WHEN ELICITED HEARSAY TESTIMONY OF [A] HIGHLY PREJUDICIAL NATURE DURING DIRECT EXAMINATION OF [A] WITNESS AS WELL AS AT SUMMATION IN VIOLATION OF AMENDMENT VI, UNITED STATES CONSTITUTION.

We first address defendant's argument regarding the surveillance footage evidence. During trial, the State played the surveillance video several times during the testimony of four of its witnesses. Defendant argues that the repetitive use of the surveillance footage was unduly cumulative and prejudicial.

N.J.R.E. 403 provides that relevant evidence may be excluded if its probative value is outweighed by its prejudicial effect. The burden to prove prejudice is on the party urging exclusion to convince the trial court that the evidence should not be admitted. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

We find defendant's argument of prejudice to lack merit. The jury convicted defendant of eluding and conspiracy to sell an imitation drug; charges supported by evidence other than the surveillance video. The surveillance video was used by the State as evidence of the charges of possession of a firearm and attempted murder; charges for which the jury found defendant not guilty. As such, even if the repeated showing of the video had the capacity for prejudice, no harm was visited upon defendant.

Defendant next argues that his twelve-year term is manifestly excessive because the trial court failed to conduct an accurate aggravating and mitigating factor analysis. The court found aggravating factors (3), (6), (9) and (11), as well as mitigating factor (11) applied. See N.J.S.A. 2c:44-1a(3), (6), (9), (11), b(11). After consideration of the sentence record, we conclude the sentencing factors identified by the trial were supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence was in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). We are satisfied that the sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Bieniek, 200 N.J. 601, 608-09 (2010).

We conclude as well that the court properly applied the factors from State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when sentencing defendant to consecutive terms. When a defendant is sentenced for two or more crimes, the sentences shall run concurrently or consecutively "as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5a. The Supreme Court outlined in Yarbough the following criteria when a defendant is sentenced for multiple offenses at the same time

(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) [Eliminated by amendment to N.J.S.A. 2C:44-5a(2)].

[Yarbough, supra, 100 N.J. at 643-44.]

In sum, we hold the judge's findings were supported by competent, reasonably credible evidence. The judge's application of legal principles and guidelines was correct. As such, under our "limited" and "deferential" standard of review, we reject defendant's challenge to his sentence. See State v. Bolvito, 217 N.J. 221, 228 (2014).

Defendant's remaining arguments, not specifically addressed herein, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The certain persons offense (count twenty-one), was bifurcated, but not presented to the jury as a result of its verdict on the weapons offenses.