STATE OF NEW JERSEY v. FRANCISCO SOTO, a/k/a JOSE RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6216-03T46216-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO SOTO, a/k/a JOSE RODRIGUEZ,

Defendant-Appellant.

______________________________________

 

Submitted October 31, 2005 - Decided November 18, 2005

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County,

03-04-0741.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

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

PER CURIAM

On April 1, 2003, a Bergen County Grand Jury returned Indictment No. 0741-03 charging defendant, Francisco Soto (a/k/a Jose Rodriguez), and three others with second-degree possession with intent to distribute a controlled dangerous substance (CDS), methylenedioxymethamphetamine (MDMA) or "Ecstasy", in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). Two of the codefendants, Nicholas Palamaro and Thomas Hernandez, pled guilty prior to defendant's trial and agreed to testify against defendant in exchange for a maximum of three years imprisonment. Following a two-day trial, a jury found defendant guilty of the CDS offense and he was sentenced to an eight-year term of incarceration with three years of parole ineligibility. Defendant appeals and we affirm.

The incident giving rise to defendant's conviction occurred on November 19, 2002. Palamaro had arranged to sell 1000 pills of Ecstasy to "Chris," who, unbeknownst to Palamaro, was undercover detective, Christian Lewicki. Palamaro and Hernandez drove into New York City to purchase the pills from Joseph Guerrzera. Guerrzera did not have the pills but told Palamaro and Hernandez to wait while he made a phone call. After the telephone call, Guerrzera informed Palamaro and Hernandez that he could only obtain 750 pills. They waited thirty to forty-five minutes for defendant to arrive. When defendant arrived, he handed Guerrzera a package, and then accompanied the three to New Jersey.

While in the car, Palamaro called Lewicki to tell him that he only had 750 pills, but agreed that the deal would take place. Palamaro was to receive one dollar per pill, or $1000, as originally intended, while the total amount to be paid was supposed to be $9000. The three accompanied Palamaro in his car to the motel where the sale was to occur. Defendant remained in the car while the other men took the pills to Lewicki. Lewicki insisted that Palamaro show the pills before he showed Palamaro the money, but Palamaro disagreed. Palamaro, Hernandez, and Guerrzera returned to the car. Hernandez testified, over defendant's objection, that after returning to the car, Guerrzera had a conversation with defendant in Spanish and then stated, "it's gonna happen, we're gonna do it." The three men returned to the motel room with the pills to complete the transaction. After identifying the pills, Lewicki placed the three men under arrest. Meanwhile, other officers, who had surrounded the motel, arrested defendant, who was sitting in Palamaro's car. The pills tested positive for Ecstasy and weighed over three ounces. At the police station, Detective Lewicki gathered pedigree information from all four men: both Palamaro and Hernandez were twenty years old, Guerrzera was twenty-three, and defendant was forty.

At trial, Palamaro testified, without objection from defendant, to a conversation between himself and defendant while they were driving to the motel. The following exchange then occurred between the prosecutor and Palamaro:

COUNSEL: And, on the way to the Stage Coach Motel did you have any conversations or did [defendant] have any conversations with you?

WITNESS: Yes, there was [sic] a few conversations.

COUNSEL: And, can you please tell the members of the jury what that conversation consisted of?

WITNESS: Most of the conversations was [sic] just saying did I know Chris which was the -- which was the person who wanted the ecstacy [sic] pills.

COUNSEL: Okay. He asked you if you knew Chris?

WITNESS: Yes.

COUNSEL: Can you tell the members of the jury approximately how many times [defendant] asked you if you knew Chris?

WITNESS: I'd say over five times.

COUNSEL: And, what did you tell him in answer --

WITNESS: I told him that I knew him well, knew him well.

COUNSEL: Okay. Why did you tell him that you knew him well?

WITNESS: `Cause I assumed that I did.

Palamaro also testified, without any objection, about similar conversations that he had with Guerrzera related to whether Palamaro knew Chris during the same drive.

On appeal, defendant raises the following points:

POINT I

MR. SOTO WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL DUE TO THE TRIAL COURT'S FAILURE TO EXCLUDE HEARSAY EVIDENCE.

POINT II

NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

(A) THE PROSECUTION COMMITTED MISCONDUCT BY ASCRIBING AN AGE TO MR. SOTO DURING HIS SUMMATION, VIOLATING MR. SOTO'S DUE PROCESS RIGHT TO A FAIR TRIAL AND 5TH AMENDMENT AND COMMON LAW RIGHT TO REMAIN SILENT.

(B) THE PROSECUTOR'S [sic] COMMITTED MISCONDUCT BY OFFERING HIS PERSONAL OPINION ABOUT EVIDENCE, DEPRIVING MR. SOTO OF HIS RIGHT TO A FAIR TRIAL.

POINT III

THE SENTENCE IMPOSED BY [JUDGE] VENEZIA WAS UNCONSTITUTIONAL AND THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO HAVE A JURY DETERMINE THE ESSENTIAL FACTS FOR IMPOSITION OF A MAXIMUM STATUTORY TERM.

POINT IV

THE SENTENCE IMPOSED BY JUDGE VENEZIA WAS UNDULY EXCESSIVE.

Defendant contends that the various conversations to which Palamaro testified without objection, and Hernandez's testimony, to which defendant did object, that Guerrzera stated, "it's gonna happen, we're gonna do it" after discussing the situation with defendant, represented hearsay evidence, which deprived him of a fair trial. He also argues, for the first time on appeal, that the judge erred in failing to hold a hearing to determine the reliability of the statements and whether they were admissible under the co-conspirator exception to the hearsay rule, N.J.R.E. 104 and N.J.R.E. 803(b)(5). We disagree.

Under the co-conspirator exception to the hearsay rule, an out-of-court statement is admissible against a defendant if it is offered against the defendant and "made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." N.J.R.E. 803(b)(5). Three conditions must be met for admission of the statement: (1) it "must have been made in furtherance of the conspiracy"; (2) it "must have been made during the course of the conspiracy"; and (3) "there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it." State v. Phelps, 96 N.J. 500, 509-10 (1984) (discussing the almost identical predecessor rule, Evid. R. 63(9)(b)).

The rationale for the co-conspirator exception is the belief that "[p]articipation in a conspiracy confers upon co-conspirators the authority to act [on] one another's behalf to achieve the goals of the unlawful scheme." State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997). Even though the opportunity to cross-examine is denied, the circumstances of such statements "afford a sufficient guarantee of testimonial trustworthiness." Ibid. Moreover, the exception applies regardless of whether a conspiracy count is contained in the indictment. State v. Clausell, 121 N.J. 298, 336 (1990). Additionally, the trial court must determine the admissibility of the statement in accordance with N.J.R.E. 104. Phelps, supra, 96 N.J. at 519-20. A hearing is not required, however, "to entertain frivolous objections to coconspirator declarations," but only where the "quantum of hearsay to be admitted is substantial and the risk of prejudice is severe." Id. at 520.

Here, the several conversations regarding "Chris" and Guerrzera's statement following his conversation with defendant were made during the course of the perpetrators' participation in the drug deal and in furtherance of it. There was also substantial independent evidence from both witnesses that defendant provided the drugs, the necessary ingredient in the transaction, which were ultimately seized by the authorities.

We are likewise satisfied that the judge's failure to hold a N.J.R.E. 104 hearing before admitting Guerrzera's statements and the conversations related by Palamaro did not constitute plain error under the circumstances. Initially, we note that after she voiced her objection, defense counsel declined the judge's invitation to be heard at side bar. Had the trial judge been alerted to the problem now belatedly advanced on appeal, the side bar discussion would have no doubt covered the fact that the conditions precedent for the admissibility of Palamaro's and Hernandez's testimony were clearly present. We do not know the reason defense counsel declined the judge's invitation other than to assume that she knew her objection was fruitless. Her failure to entertain the invitation deprived the trial judge of participating in the very balancing process that defendant now argues should have been exercised to decide whether the prejudice of specific evidence outweighed its probative value. State v. Ramseur, 106 N.J. 123, 266 (1987). It also suggests that defense counsel did not find the testimony to be overly prejudicial. State v. Macon, 57 N.J. 325, 333 (1971).

Ordinarily, trial error that is induced, encouraged, acquiesced in, or consented to by defense counsel does not form a basis for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); see also State v. Pontery, 19 N.J. 457 (1955); State v. Roscus, 16 N.J. 415 (1954). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Pontery, supra, 19 N.J. at 471.

That being said, we see no possibility that an N.J.R.E. 104(c) hearing would have resulted in the preclusion of the evidence challenged on appeal. The evidence of defendant's guilt was overwhelming. Simply stated, the admission of Palamaro's and Hernandez's testimony was not error, much less error that was clearly capable of producing an unjust result. R. 2:10-2.

During the State's closing arguments, the prosecutor referred to Palamaro and Hernandez as "knuckleheads," "dopey kids" and "kids," while referring to the defendant as a forty- year-old man. The prosecutor also argued to the jury that while Palamaro would receive one dollar per pill, he "did not know" how much the other men would receive. Defendant contends that the prosecutor's closing remarks amounted to prosecutorial misconduct notwithstanding his failure to object. None of the challenged comments constitutes plain error. R. 2:10-2.

When prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with "whether the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. Ramseur, supra, 106 N.J. at 322.

Contrary to defendant's contention, Lewicki testified that he determined the ages of the individuals involved when he obtained their pedigree information at police headquarters following the arrests. The prosecutor's comments respecting the ages of the perpetrators were based upon the evidence and inferences reasonably drawn from the proofs. State v. Timmendequas, 161 N.J. 515, 588 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 85 (1999); State v. Harris, 156 N.J. 122, 194 (1998). So too, the prosecutor's statements concerning the proceeds that Palamaro and Hernandez would have received from the failed transaction were based upon inferences that could reasonably be drawn from the evidence. They did not represent an "opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant," as maintained by defendant. State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980)), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Bogen, 13 N.J. 137, 140, cert. denied sub nom., Lieberman v. New Jersey, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

We are also satisfied that the prosecutor's reference to Palamaro and Hernandez as "knuckleheads" and "dopey kids" did not deprive defendant of his right to a fair trial because the comments were not so egregious as to constitute plain error, especially in the face of the overwhelming evidence of defendant's guilt. In evaluating a claim of error, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). It is not unusual to find that criminal cases are tried with some degree of emotion. "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 510-11. Here, the prosecutor was not referring to defendant when she made the challenged descriptive comments.

The judge found aggravating factors (3) (risk that the defendant will commit another offense), (6) (extent of defendant's prior criminal record), and (9) (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1a. He did not find any mitigating factors and did not state that he engaged in any balancing. In citing the aggravating factors, the judge stated "this is not the first time and it's not even the second time, it is the third time that [defendant has] come before a court with circumstances that are similar." Under the circumstances, we are satisfied that the sentence imposed, one year above the presumptive term, did not violate defendant's Sixth Amendment right under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because it was based on defendant's prior criminal record. State v. Natale (Natale II), 184 N.J. 458, 466 (2005). We have also considered defendant's contention and supporting argument and are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

Contrary to R. 2:6-2(a)(1), defendant failed to note in the table of contents that the point raised on appeal was not raised below.

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A-6216-03T4

November 18, 2005