STATE OF NEW JERSEY v. RAUL ROJAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0811-04T30811-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAUL ROJAS,

Defendant-Appellant.

________________________________________________________________

 

Argued December 6, 2007 - Decided January 4, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 03-07-0912.

Gregory A. Stathis argued the cause for

appellant (Stathis & Leonardis, attorneys;

Mr. Stathis, of counsel and on the brief).

Russell J. Curley, Deputy Attorney General,

argued the cause for respondent (Stuart Rabner,

Attorney General, attorney; Mr. Curley, of

counsel and on the brief).

PER CURIAM

A Middlesex County jury convicted defendant Raul Rojas of possession of cocaine, N.J.S.A. 2C:35-10(a)(1); possession with intent to distribute cocaine, N.J.S.A. 2C:35-10(a)(1); and possession with intent to distribute cocaine in a school zone, N.J.S.A. 2C:35-7. After properly merging two of the convictions into the school zone offense, Judge Paley sentenced defendant to three years and six months imprisonment with thirty-six months of parole ineligibility. Defendant appeals, seeking reversal of his convictions because (1) the police conducted an illegal search, (2) the State's expert provided "inflammatory and prejudicial" testimony that "inferentially expressed an opinion on the guilt of defendant," (3) the court improperly instructed the jury on the school zone offense, and (4) trial counsel provided defendant with "incompetent" representation. We reject each of these arguments and affirm.

The facts can be briefly summarized. A New Brunswick police officer observed defendant standing on the same corner in a high crime area at 1:00 p.m. and 3:00 p.m. on the same day. The officer observed defendant walk across the street and go behind a building, through a fence, and into the backyard disappearing from view. About twenty minutes later, the officer saw defendant come from behind the building walking more quickly than before. He looked up and down the street constantly and then "very casually" dropped a cigarette pack behind a bush. It was later determined that the cigarette pack contained two small clear plastic bags. One was tied up and contained ten small packets of cocaine and the other was open and contained one packet. The officers arrested defendant and seized $124 from his person. According to the official map, the corner where the officer first observed defendant was within 100 feet of a New Brunswick school.

Based on these facts, defendant argues that he was unlawfully searched because the officer lacked a sufficient basis to conduct an investigatory stop. We disagree on three bases. First, the argument has been waived because defendant failed to file a timely motion to suppress evidence in the trial court. R. 3:5-7(f); State v. Martin, 87 N.J. 561, 566-67 (1981); State v. DiRienzo, 53 N.J. 360, 384 (1969). Second, the police could lawfully retrieve the discarded cigarette pack. State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). After discovering cocaine, in the discarded cigarette pack, the police had probable cause to arrest defendant. Finally, the method by which defendant cautiously dropped the cigarette pack behind the bush provided reasonable suspicion to detain defendant for an investigation. See State v. Johnson, 171 N.J. 192, 219 (2002); State v. Arthur, 149 N.J. 1, 10 (1999). Once the cocaine was discovered in the discarded cigarette pack, suspicion ripened into probable cause.

Defendant next challenges the State's expert testimony on drug distribution, the hypothetical question that was asked, and the fact that the prosecutor wrote the expert's report. Although defendant claims the expert went too far in his testimony, we disagree, and conclude that the testimony did not differ significantly from that permitted in State v. Odom, 116 N.J. 65, 79 (1989). See also State v. Summers, 179 N.J. 306, 317 (2003).

In an effort to clarify the hypothetical, the judge asked, "[b]ased on your analysis of the facts in the hypothetical question, Sergeant Camisa, were the -- was the cocaine that was seized here on June 5th 2003 possessed for personal use or possessed with the intent to distribute?" We agree with defendant that it would have been preferred for the judge not to have mentioned the specific date. Only the month and year were necessary. We also agree that the use of the term "here" could have been interpreted by the jury as linking the seizure to the defendant. Nevertheless, the proofs against defendant were strong, and these minor miscues were hardly "capable of producing an unjust result." R. 2:10-2.

In addition, even if the expert's report was written by the prosecutor, the officer accepted the report as his own and was available for cross-examination based on the report. We see no error here.

Defendant also argues that he was entitled to an acquittal because the State failed to prove that the cigarette pack was found within the school zone. Again, we disagree. Bypassing the failure of defendant to move before the trial court for a judgment of acquittal, R. 3:18-1, it is obvious to us that the evidence was sufficient to convict. The police observed defendant carrying the cigarette pack within the school zone and even if defendant and the drugs were never physically together within the school zone a defendant may still be convicted of constructively possessing drugs located outside the zone while he is within the zone. State v. Lewis, 185 N.J. 363, 373-75 (2005).

Finally, defendant claims his counsel was "incompetent" for failing to move to suppress the cocaine, for failing to object to the expert witness, and for requesting an instruction that defendant was not charged with using drugs. Because we have found meritless defendant's first two claims, they are no indication of ineffective representation. State v. Worlock, 117 N.J. 596, 625 (1990). In addition, we reject defendant's contention that defendant's counsel was ineffective for failing to portray defendant as a drug user in the hope that the jury would acquit him of the more serious distribution related offenses. Trial strategies cannot support a charge of ineffectiveness. State v. Preciose, 129 N.J. 451, 460 (1992).

Accordingly, although defendant has advanced several claimed errors deserving careful consideration, we find each of them lacking in merit and insufficient to have caused an unjust result.

Affirmed.

 

The judgment of conviction reflects adjudication by guilty plea and should be corrected.

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A-0811-04T3

January 4, 2007