STATE OF NEW JERSEY v. WILDEN R. OGANDOOVALLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2807-04T42807-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILDEN R. OGANDOOVALLE,

Defendant-Appellant.

_______________________________________

 

Submitted August 15, 2006 - Decided August 21, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-05-0255.

Yvonne Smith-Segars, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, of Counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a three-day jury trial, defendant Wilden Ogandoovalle was convicted of two counts of third-degree distribution of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and two counts of third-degree distribution of a controlled dangerous substance within 1,000 feet of a school zone, in violation of N.J.S.A. 2C:35-7. After merging the school-zone offenses with the other convictions, the trial judge sentenced defendant to two concurrent five-year prison terms with a three-year period of parole ineligibility.

Defendant appeals from his convictions and sentence, raising the following claims of error:

POINT I

Defendant was denied due process because of a fourteen month delay between the completion of the investigation by law enforcement and his arrest

point II

Prejudicial error was committed when the trial court allowed into evidence the tape and transcript of the December 13, 2001 incident without proper authentication and contrary to State v. Driver, 38 N.J. 255 [(1962)] (Not raised below)

point III

Defendant was denied effective assistance of counsel

a. introduction

b. defendant was denied effEctive assistance of counsel when defendant's trial counsel failed to object to the admission into evidence of the tape and transcript of the december 13, 2001 incident without proper authentication

c. defendant was denied effective assistance of counsel when his trial attorney asked the trial court to impose a prison sentence of five years with a three year parole inelgibility period

Point iv

defendant's sentence was exCessive

Point v

defendant's sentence was illegal and he should be re-sentenced in accordance with state v. natale, 184 N.J. 458 (2005)

We reject defendant's substantive arguments and affirm his convictions, reserving his ineffective assistance claims for a future proceeding for post-conviction relief. As requested, however, we do remand for resentencing in light of State v. Natale, 184 N.J. 458, 484, 495-96 (2005).

I.

The indictment against defendant was the result of two drug transactions that occurred on the evenings of December 6 and December 13, 2001, between defendant and an undercover police officer, outside of the Good Times Tavern in Bound Brook. At trial, the State produced as witnesses the undercover police officer who had purchased the drugs and another police officer who had assisted in identifying defendant. The State also presented as evidence a tape recording and redacted typed transcription of the second drug transaction. Defense counsel's sole theory was that defendant was not the person who sold the drugs, and that the officers had misidentified defendant through a flawed identification process.

In late 2001, the Good Times Tavern was the focus of an ongoing undercover narcotics investigation by a police task force working under the direction of the Somerset County Prosecutors Office. Officer Timothy Pino, an undercover agent with the task force, was assigned to make narcotics purchases at the tavern.

According to Pino's trial testimony, on the evening of December 6, 2001, while attempting to purchase cocaine from two Good Times patrons known as "Minor" and "Hugo," he was directed by those two men to meet an acquaintance of theirs outside the bar. When Pino went outside, a third man, whom he did not know, sold him $60 worth of cocaine. At that particular time, Pino was wired with a surveillance device, but was not recording the conversation. Pino testified that, at the time of this first transaction, his focus had been on Hugo and Minor, and he did not know the name of the man who sold him the drugs.

Upon making the purchase on December 6, Pino left the bar, contacted his backup units, and described the man who had sold him the drugs. He described "a dark-skinned man, approximately six-foot-one, 170 pounds, white T-shirt, [and with] blue jeans." Officer Vito Bet, a patrolman with the Bound Brook Police Department, received Pino's transmission and drove to the area near the tavern. Bet then spotted defendant, who matched Pino's radioed description and with whom he was previously familiar. Bet saw defendant walking in the direction that Pino had indicated. Bet drove past twice, waved, and then radioed the police station and provided them with defendant's name. No further activity transpired that evening.

The following week, on December 13, Pino returned to Good Times to attempt another undercover purchase. That night he purchased twenty dollars worth of cocaine from defendant outside the bar. Pino recorded this second transaction with a wire transmitter concealed under his clothing.

At trial, the jury listened to a redacted version of the audiotape of the December 13 transaction without any objections by defense counsel. The jurors also were provided with a redacted two-page transcription of the recording so they could follow along. The redactions were the result of an agreement between counsel, and the trial judge was not asked to make any rulings about their propriety. Defendant never identified himself on the tape, although the typed transcription listed the speakers as "Timothy Pino" and "Wilden Ogandoovalle." Officer Pino testified at trial that the taped recording was accurate and identified the speakers as himself and defendant.

One week after the second drug purchase, on December 20, Pino obtained a photograph of defendant from the Middlesex Borough Police Department, and recognized defendant as the man from whom he had twice purchased cocaine. Pino made no further purchases from defendant nor did he have any contact with him until defendant's arrest fourteen months later, on April 16, 2003.

Defendant testified on his own behalf at trial and denied ever selling drugs to Officer Pino or to anyone else. When queried about the events in question, defendant stated that he could not remember what he was doing on December 6 and 13, 2001. The prosecution then replayed the recording of the December 13 drug transaction, this time over defense counsel's objection, and asked defendant if he recognized the voices on the tape. Defendant testified that he could not remember that day and he did not know if the voice on the recording was his own.

Given these proofs, the jury found defendant guilty of all charges set forth in the indictment. This appeal ensued.

II.

Defendant first claims on appeal that the fourteen-month span between the drug transactions and his arrest constituted an unreasonably long delay that prejudiced his ability to defend against the charges at trial. Prior to trial, defendant had moved to dismiss the indictment for pre-accusation delay. That motion was denied, with the judge finding in a written opinion that the State's reasons for delay were "meritorious" and that the defense had failed to show "actual and substantial prejudice" resulting from the delay in his arrest.

Recently, in State v. Townsend, 186 N.J. 473 (2006), our Supreme Court held that a defendant alleging a due process violation based on pre-indictment delay has the burden of showing that "(1) the State's delay in seeking an indictment was a deliberate attempt to gain advantage over [the defendant], and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at 489 (citing United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed. 2d 146, 157 (1984)). In Townsend, defendant claimed a violation of his due process rights because his indictment for murder occurred some twenty years after the crime and initial investigation. Id. at 485-486. The defendant argued that the longer the pre-indictment delay involved, the less of a burden an accused should have to show actual prejudice and a violation of his constitutional right to due process. Id. at 488. The Supreme Court disagreed, declining to construe a defendant's due process rights under the New Jersey Constitution in such an expansive fashion. Id. at 488-489. Instead, the Court applied the two-part test described above. The Court found that the defense had produced no evidence that the State's delay was tactical or intended to prejudice defendant. Id. at 489. Moreover, it found that the defense had demonstrated no actual prejudice arising from the delay, even though several alleged witnesses were now unavailable. Ibid. Defendant never proffered the substance of those witnesses' anticipated testimony, nor did he explain how that testimony would have helped his case. Ibid.

Likewise here, defendant has not met his burden to show that the pre-indictment delay was a deliberate attempt by the State to gain a tactical advantage over him. Nor has he shown any actual prejudice.

Defendant contends that the State has offered no legitimate reason for the delay in arresting him. However, in opposing defendant's motion to dismiss, the State averred that defendant had not been arrested sooner because he was only one suspect in a larger undercover narcotics investigation that involved several other suspects, an investigation which was not confined to the events of December 2001. We previously recognized in State v. Aguirre, 287 N.J. Super. 128, 132-33 (App. Div.), certif. denied, 144 N.J. 585 (1996), that it is "perfectly legitimate" for the prosecution to delay an indictment "to gather additional evidence against an accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." See also United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2049-50, 52 L. Ed. 2d 752, 759-61 (1977).

Defendant argues that the State should have explained how arresting defendant sooner would have harmed this investigation, but such a more detailed explanation is unnecessary. We concur with the trial judge's finding that the State's reason for delay is meritorious and that the delay did not occur for the purpose of harming defendant's chances at trial.

Second, we also agree with the trial judge that defendant failed to show actual prejudice from the delay in his arrest. In that regard, we have previously ruled that a defendant must show, "actual prejudice, not possible or presumed prejudice," to support a due process claim. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.), certif. denied, 156 N.J. 408 (1998) (quoting Aguirre, supra, 287 N.J. Super. at 133). Defendant alleges that, because of the delay, he could not remember his whereabouts on the nights in question and thus could not establish an alibi. However, as we noted in Alexander, "'[v]ague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.'" Alexander, supra, 310 N.J. Super. at 355 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed. 2d 288 (1994)); see also State v. Rodriguez, 112 N.J. Super. 513, 516-517 (App. Div. 1970)(rejecting defendant's contention that he was unduly prejudiced by his failure to remember his activities on the critical dates in which he sold marijuana to an undercover agent), certif. denied, 61 N.J. 156 (1972). Defendant offers no concrete proof that the delay actually prejudiced his defense. In light of the unwavering testimony of two police officers that placed him in the area in question on the relevant dates, defendant's paucity of memory of his whereabouts is insufficient to satisfy the prejudice prong of Townsend.

We thus affirm the denial of defendant's pretrial motion to dismiss.

III.

Defendant further claims that the trial judge committed reversible error by failing to conduct a hearing on the admissibility of the December 13 tape recording before admitting it into evidence, pursuant to State v. Driver, 38 N.J. 255 (1962). Because defense counsel at trial never requested such a Driver hearing or disputed in any way the admission of the tape recording into evidence, this court is governed by the plain error standard of review. Under R. 2:10-2, this court will only consider claims of such error not raised at trial if they are "clearly capable of producing an unjust result." No such showing has been made here.

In Driver, the Supreme Court held that any sound recording offered into evidence at trial must be competent and relevant. In resolving such disputed questions, the court should determine that the speakers on the recording are identified, and that (1) the device was capable of taking the conversation or statement; (2) its operator was competent; (3) the recording is authentic and correct; (4) no changes, additions or deletions have been made; and (5) the statements, if confessions, are voluntary. Driver, supra, 38 N.J. at 287. The Court also instructed that trial judges "should listen to the recording out of the presence of the jury before allowing it to be used[,]" in order to determine that the recording is "sufficiently audible, intelligible, not obviously fragmented, and . . . whether it contains any improper and prejudicial matter which ought to be deleted." Id. at 288. In Driver, the Court overturned defendant's murder conviction because the taped recording played for the jury was so garbled and unclear that the trial judge instructed the jury, "[i]f you can't hear it, you can't hear it. Inaudible." Ibid. The Court found that "[b]asic fairness demanded [the tape's] exclusion." Ibid.

We have since clarified that a Driver hearing is not a strict requirement in all cases where sound recordings are offered as evidence. Rather, a defendant may waive a Driver hearing. State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987), State v. Rockholt, 186 N.J. Super. 539, 547 (App. Div. 1982), aff'd, 96 N.J. 570 (1984). Here, such a waiver is reflected by the fact that defendant's trial attorney twice indicated on the record to the court that it was "acceptable" to him for the tape and transcript to be presented to the jury in the redacted form mutually proposed by counsel.

Moreover, a trial judge has wide discretion in applying the requirements of Driver. In State v. Zicarelli, 122 N.J. Super. 225, 238-240 (App. Div.), cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973), we held that, even when part of a tape is inaudible, it is within the judge's discretion to admit the portions that are audible and relevant. "[I]f a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible." Id. at 239.

Defendant fails to demonstrate on this appeal with any specificity that the audiotape played for the jury was in any respect inaudible, inaccurate or altered. Prior to trial, both attorneys listened to the tape and agreed to redact certain portions of the recording both prior to and after the drug transaction. Among the portions deleted from the tape was Officer Pino's opening statement, in which he identifies defendant as the person he is buying drugs from. However, Officer Pino identified the speakers on the tape during his trial testimony and also testified that it was an accurate recording of his conversation with defendant.

Defense counsel's objection to the second playing of the tape, during the State's cross examination of defendant, was not based on the audibility or relevance of the tape, but only on the State's use of the tape to ask defendant to identify his own voice on the recording. That objection was without merit and the trial judge properly overruled it.

On the whole, we discern no plain error in the admission of the redacted audiotape and corresponding transcription.

III.

Defendant next claims that he was deprived of his right to effective assistance of counsel under the federal and state constitutions. He bases his claim on his trial counsel's failure to request a Driver hearing before the audiotape was admitted into evidence, and also on his counsel's failure to press for a lighter sentence.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Because defendant's ineffectiveness claims likely turn, in substantial part, on strategic considerations, we decline to address them on their merits here and defer them for consideration in a future application for post-conviction relief (PCR). See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Counsel's failure to request a Driver hearing may have stemmed from a recognition that the audiotape, as redacted, was competent, relevant and audible, and that it would be wasting the court's time to litigate its admissibility. As to sentencing, defense counsel may have agreed with the five-year concurrent sentences recommended by the State as a preferable alternative to possible consecutive terms of shorter individual, but longer combined, duration. We will not speculate on those matters here, and leave it to a future PCR proceeding to develop the record appropriately.

IV.

Lastly, defendant seeks a remand for resentencing because his five-year sentence, which exceeded the former presumptive four-year term for a third-degree offense, was founded upon aggravating factors that went beyond his prior criminal record. See N.J.S.A. 2C:44-1f(1)(d). The State agrees that such a remand is constitutionally warranted in light of State v. Natale, 184 N.J. 458, 484, 495-96 (2005), and we thus remand the matter for that limited purpose, and do not reach defendant's separate contention that his present sentence is excessive.

Convictions affirmed; remanded for resentencing.

 

Additionally, the effectiveness of trial counsel's sentencing advocacy may be mooted by the disposition of the sentencing remand ordered in Part IV, infra.

(continued)

(continued)

16

A-2807-04T4

 

August 21, 2006