STATE OF NEW JERSEY v. JUAN MENDOZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4303-03T44303-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN MENDOZA,

Defendant-Appellant.

_______________________________

 

Submitted: January 18, 2006 - Decided February 7, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 95-05-0582-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth A. Harrigan, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Juan Mendoza was tried by a jury and convicted in 1995 of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two); and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three). Defendant was finally sentenced in 2003, during which the court merged the first and third counts into the second count, and imposed an eight-year custodial term with a three-year parole disqualifier. The court also imposed the statutorily-mandated fines, penalties and fees.

On appeal, defendant argues:

POINT I

THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION.

POINT II

DEFENDANT'S CONVICTION AND SENTENCE MUST BE VACATED SINCE THE UNDERLYING INDICTMENT WAS DISMISSED.

POINT III

DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

We affirm the conviction, and we reverse the sentence, remanding it for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).

Having received information from a confidential informant that a person named Juan would return from New York with a large quantity of drugs, Detective Ivette Otero and other members of the Paterson Police Department Narcotics Unit conducted an investigation in the area of Seventeenth Avenue and East Nineteenth Street on March 8, 1995. At approximately 4:10 p.m., Detective Otero saw defendant, the target of the investigation, walking towards her with another Hispanic male, later identified as Ramon Bonilla. After receiving a radio transmission from Otero of defendant's description and location, two backup units approached defendant in their unmarked vehicles. As the detectives, who wore their police badges visibly, exited their vehicles, defendant immediately turned and ran east on Seventeenth Avenue. Bonilla ran in a different direction, north on East Nineteenth Street.

Detectives Troy Bailey and Virginio Formentin chased defendant. The officers testified that as defendant was running, he reached to his left with his right hand, and tossed a white "softball-like object" onto the porch of the corner house on Seventeenth Avenue and East Nineteenth Street. Both detectives observed defendant toss the object onto the porch. Detective Formentin was approximately fifteen feet behind defendant when defendant threw the object. Detective Bailey went to the porch and recovered the bag, which contained cocaine weighing 4.58 ounces. Defendant was arrested and transported to headquarters, where a search revealed that he had $423 in currency in his possession. The other officers chased Bonilla but did not arrest him, as a search for contraband and a check for warrants proved negative.

Defendant testified at trial and denied possessing the drugs or throwing the object onto the porch. Defendant claimed he had run away from Bonilla and was unaware he was being chased by the police. He also contended the money he possessed was his rent money. The defense also called Jose Padin, who lived in the neighborhood, and who testified that the area was drug-infested, filled with Hispanic males, and the police were "always checking people." Padin further testified he was also stopped by the police on the date of the incident but was not charged or arrested. In summation, defense counsel continued this theme and suggested that the officers were "lying" in their version of the events and could have arrested defendant as a "scapegoat" for having erroneously released Bonilla or having failed to locate the target of their investigation.

Defendant's challenge of prosecutorial misconduct consists of the comment in summation that defendant's version of the events was "nonsense," that defendant's flight from police was probably the single most impressive indicator of his guilt, and that the State did not "need" to perform a fingerprint analysis on the package of cocaine that the officers testified defendant threw onto the porch during his flight. We do not perceive any misconduct on the part of the prosecutor that exceeded the bounds of propriety or fair comment, much less that the prosecutor's conduct was so egregious as to have deprived defendant of a fair trial and warrants reversal. State v. Frost, 158 N.J. 76 (1999); State v. Ramseur, 106 N.J. 123 (1987). We note that the prosecutor's comment concerning flight was placed in context by the court's instruction on the jury's consideration of flight as evidence of consciousness of guilt.

Nor is there any merit to defendant's argument that his conviction and sentence should be vacated based on the purported dismissal of the underlying indictment. Defendant, who had been out on bail, did not appear when the jury returned its verdict on the last day of trial, September 20, 1995, having fled to the Dominican Republic. He apparently returned to Paterson sometime in 1996, but was not arrested until August 16, 2002. The matter was originally scheduled for sentencing on December 13, 2002, but was adjourned. Defendant was finally sentenced on January l7, 2003.

For the first time on appeal, defendant submits a seven-line transcript excerpt of a February 29, 1996 motion involving a different judge and prosecutor than were involved in the trial and sentencing in support of his argument that the underlying indictment was dismissed:

THE COURT: [Prosecutor], you want to move cases for dismissal?

[Prosecutor]: That's correct.

THE COURT: Please proceed.

[Prosecutor]: State versus Juan Mendoza, indictment number 95-05-0582.

THE COURT: Granted.

Although the above colloquy pertains to these charges, the absence of any mention of the verdict strongly suggests that the prosecutor and judge were not aware that a jury trial had been completed. It is clear this dismissal request was made and granted in error. See Rule 3:25-1 (which permits a prosecuting attorney to move before the judge to whom the indictment has been assigned for trial for an administrative dismissal of an indictment prior to or during trial). Moreover, the dismissal of this indictment is not reflected in the court computer records and does not appear to have ever been effectuated. Nor did defense counsel object to imposition of sentence on the ground of the purported dismissal.

The court imposed a term in excess of the seven-year then-presumptive term for a second-degree offense. Accordingly, defendant is entitled to resentencing under Natale II, which abolished presumptive terms under New Jersey's sentencing scheme.

Conviction affirmed; remanded for resentencing.

 

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A-4303-03T4

February 7, 2006