STATE OF NEW JERSEY v. ANGEL PADUANI, a/k/a LUIS MALDONADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0402-05T40402-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL PADUANI, a/k/a

LUIS MALDONADO,

Defendant-Appellant.

___________________________________

 

Submitted February 7, 2007 - Decided April 24, 2007

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Indictment No. 04-12-1686.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jack L. Weinberg,

Designated Counsel, of counsel and on

the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jason F. Statuto,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Angel Paduani was tried before a jury and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) and 2C:2-6 (Count One); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) (Count Two); and third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). Sitting as the trier of fact, the trial judge found defendant guilty of the disorderly persons offense of possession of marijuana. After merging Counts One and Two with Count Three, defendant was sentenced to a term of five years, with a three-year period of parole ineligibility. The court also imposed a concurrent three-month county jail term for the disorderly persons offense; and assessed the mandatory fines and penalties.

We gather the following facts from the evidence presented at the trial. The evidence against defendant came primarily through the testimony of Paterson Police Officer Jason Wester. On August 23, 2004, Wester was temporarily assigned to the Narcotics Unit for the purpose of obtaining evidence of illicit drug activity in the vicinity of Essex Street and Madison Avenue, an area of Paterson known to the police for high drug-trafficking.

Wester drove an unmarked vehicle to this location dressed in civilian clothes, and generally presenting a disheveled appearance. He was given four five dollar bills and directed to purchase illicit drugs. Each of the bills were photocopied. Although he was alone in his car, Wester maintained constant radio contact with an "arrest team" consisting of two other plain-clothes officers.

As Wester drove his car into the area, he was "beckoned" by an individual subsequently identified as defendant. After Wester stopped the car, defendant approached him and asked "What do you need[?]" to which Wester responded, "I need one bag." Defendant then handed Wester a bag containing crack cocaine in exchange for two of the five dollar bills previously provided to the officer as "buy money." As he drove away, Wester saw defendant walk across the street and hand the money to an African-American male.

Immediately after completing this transaction, Wester radioed a description of both individuals to the back-up arrest team, who in turn moved in and made the arrest. Thereafter, Wester identified defendant as the individual that had sold him the cocaine. Defendant and his cohort were arrested within two minutes of the sale.

When first questioned by the police, defendant identified himself as "Luis Maldonado." A search of defendant's person incident to his arrest revealed $113 in cash, and one bag of marijuana. No cocaine was found. The police recovered the two marked five dollar bills incident to a search of the person of the codefendant.

At trial, defendant stipulated that the bag presented by Wester had tested positive for cocaine, and that a map of the area where the alleged transaction took place indicated that the location was within 1,000 feet of Public School No. 11.

Defendant testified on his behalf. He denied selling the cocaine to Wester, and claimed that he was in the area to use a nearby public telephone. He admitted to giving the police a false name at the time of his arrest. He claimed, however, that he did so to avoid being arrested on an open driving while intoxicated warrant.

Against these facts, defendant now appeals raising the following arguments:

POINT I

THE PROSECUTOR'S COMMENTS DURING SUMMATION CONSTITUTED MISCONDUCT AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially raised below)

POINT II

THE IDENTIFICATION PROCEDURES UTILIZED IN THIS MATTER ALONG WITH THE REPORTING PROCEDURES EMPLOYED DEPRIVED THE DEFENDANT OF A FAIR TRIAL AS THEY VIOLATED THE DEFENDANT'S DUE PROCESS GUARANTEES. (Partially raised below)

POINT III

THE TRIAL COURT ERRED IN RULING ADMISSIBLE THE DEFENDANT'S PRIOR CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE CONTROLLED DANGEROUS SUBSTANCES WITHIN 1000 FEET OF SCHOOL PROPERTY AS THE PRIOR CONVICTION WAS TOO REMOTE AND NOT RELEVANT FOR CREDIBILITY PURPOSES.

POINT IV

NUMEROUS TRIAL ERRORS PREJUDICED THE DEFENDANT AND DEPRIVED HIM OF A FAIR TRIAL. (Partially raised below)

-A-

The court failed to promptly swear in the jury.

-B-

The Court erred in permitting the State to state that supervising Detective Mineo was out of the country serving in the military.

-C-

Referencing the area as a high drug/high crime area improperly tainted the defendant as one who associates in illegal activities and implied a guilt by association.

-D-

The defendant's Sixth Amendment Right of Confrontation was violated when the court conducted further discussions with the jury after the defendant and counsel were excused from the courtroom.

POINT V

THE DEFENDANT IS ENTITTLED TO A REMAND FOR A DETERMINATIOM OF AN APPROPRIATE SENTENCE IN THIS MATTER AND A PROPER EXPLANATION OF THE REASONS FOR THIS SENTENCE BY BOTH THE PROSECUTOR IN REFUSING TO WAIVE THE MANDATORY THREE-YEAR PAROLE INELIGIBILITY TERM AND THE REASONS BY THE COURT FOR THE IMPOSITION OF THE APPROPRIATE BASE TERM.

None of the arguments raised attacking defendant's conviction have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). With respect to the sentence imposed by the court, because the five-year term is above the now defunct presumptive term of four years, State v. Natale, 184 N.J. 458 (2005), we are compelled to remand this matter for re-sentencing. State v. Thomas, 188 N.J. 137, 152 (2006).

In the interest of clarity, we note that the trial court properly admitted defendant's prior convictions under N.J.R.E. 609, after sanitizing them in accordance with the procedure outlined in State v. Sands, 76 N.J. 127, 144 (1978), and State v. Brunson, 132 N.J. 377, 391 (1993). None of the prosecutor's remarks to the jury disparaged defense counsel, or undermined defendant's right to a fair trial. The prosecutor's comments regarding Wester were proper because they responded directly to defense counsel's attack on this witness's credibility. Finally, the court's brief comments to the jury without defendant present, but after the verdict had been received, were benign and inconsequential.

Defendant's conviction is affirmed. The matter is remanded for re-sentencing. We do not retain jurisdiction.

 

Several other charges, including second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1, were dismissed by the court before the jury was empanelled.

(continued)

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A-0402-05T4

April 24, 2007