STATE OF NEW JERSEY v. GEORGE M. HLADUN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4491-06T44491-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE M. HLADUN,

Defendant-Appellant.

___________________________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-04-0158.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Charles Ouslander, First Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant George Hladun appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the strict liability drug-induced death of Gary L. Debele, N.J.S.A. 2C:35-9, a first-degree crime, and third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). After appropriately merging the two offenses, the judge sentenced defendant to fifteen years in prison, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant raises the following points on appeal:

POINT ONE

THE CUMULATIVE EFFECT OF THE COURT'S EVIDENTIARY RULINGS AGAINST DEFENDANT DEPRIVED HIM OF A FAIR OPPORTUNITY TO PRESENT A DEFENSE AND THUS, HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, AND 10.

A. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT DECEDENT EXPERIENCED A NON-FATAL HEROIN OVERDOSE THREE MONTHS BEFORE HIS FATAL OVERDOSE.

B. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT DECEDENT WAS KNOWN TO SELL COCAINE TO SUPPORT HIS HEROIN ADDICTION.

C. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT PROVIDED CONTEXT TO DECEDENT'S 4:00 A[.]M[.] VISIT TO DEFENDANT'S HOME, SEEKING COMPANY ON A DRUG PURCHASING EXCURSION.

POINT TWO

THE COURT ERRED IN ALLOWING LAY WITNESS TESTIMONY ON THE CAUSE OF DECEDENT'S INTOXICATION, DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, AND 10.

POINT THREE

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

Defendant also raises the following points in his pro se supplemental brief:

ARGUMENT I

APPELLA[NT] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE UNITED STATES SIXTH AMENDMENT TO THE CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION, ARTICLE I, PARAGRAPH 10

A. DEFENSE COUNSEL[']S FAILURE TO PROPERLY INVESTIGATE PRE[-]TRIAL

B. DEFENSE COUNSEL[']S FAILURE TO ADEQUATELY CROSS-EXAMINE AND CHALLENGE THE STATE[']S MEDICAL EXPERT[']S QUALIFICATIONS

C. DEFENSE COUNSEL[']S FAILURE TO OBJECT TO THE STATE[']S EXPERT WITNESS TESTIMONY ON THE BASIS THAT SAID TESTIMONY LACKED FOUNDATION IN THE MEDICAL FIELD AND THAT SAID TESTIMONY WAS AN EMBROIDERY OF THE REPORT

D. DEFENSE COUNSEL FAILED TO ADEQUATELY CROSS-EXAMINE THE STATE[']S EXPERT WITNESSES['S] TESTIMONY, THUS INFRINGING UPON DEFENDANT[']S SIXTH AMENDMENT RIGHTS

E. FAILURE OF DEFENSE COUNSEL TO MARK THE EXPERT WITNESSES['S] MEDICAL REPORTS INTO EVIDENCE SO [THE] JURY MAY REVIEW DISCREPANCIES IN THE STATE[']S EXPERT WITNESS TESTIMONY

ARGUMENT II

TRIAL COURT ABUSED IT[S] DISCRETION IN RULING INADMISSIBLE DEFENSE EVIDENCE SHOWING THAT THE DECEDENT HAD ABNORMAL EKG CARDIAC READINGS OF HIS HEART AFTER THE STATE OPENED THE DOOR DURING OPENING STATEMENTS AND DIRECT EXAMINATION; THUS, INFRINGING UPON DEFENDANT'S SIXTH AMENDMENT RIGHTS TO PRESENT A COMPLETE DEFENSE

ARGUMENT III

DEFENDANT[']S RIGHT TO A FAIR TRIAL WAS INFRINGED UPON DUE TO PROSECUTORIAL MISCONDUCT

A. SPURIOUS ALLEGATIONS BASED ON FACTS OUTSIDE AND UNSUPPORTED BY EVIDENCE ADDUCED AT TRIAL

B. INFRINGEMENT OF DEFENDANT[']S RIGHT TO NOT TESTIFY DURING TRIAL

C. P[E]RJURIOUS TESTIMONY

ARGUMENT IV

THE APPELLANT'S DUE PROCESS RIGHTS ARE HEREBY PREJUDICED BECAUSE OF THE LACK OF A COMPLETE RECORD, WHICH, UNDER THE CIRCUMSTANCES, RENDERS COMPETENT REVIEW IMPRACTICAL

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

During the early morning hours of May 31, 2003, Gary L. Debele died of a heroin overdose while asleep on the couch in his home. Debele had attempted to overcome his addiction to the drug during the preceding years, including the successful completion of an in-patient drug treatment program in the summer of 2002. During the weeks prior to his death, he was no longer employed, but, according to his wife Cynthia, he regularly attended meetings in an attempt to maintain sobriety.

Debele was discovered in a lifeless condition at approximately 5:30 a.m. by his step-daughter, Cheryl Machyousky, who lived with Debele, her mother Cynthia, and her half-brother, Gary Debele, Jr. Machyousky awakened the family and summoned her aunt who was a nurse, before Gary Jr. called 911. Emergency medical personnel were unable to revive Debele, and he was pronounced dead at the scene.

The preceding evening, near 9:00 p.m., Debele asked Machyousky to drive him to K-Mart to purchase supplies for the garden they were planting. While Machyousky was driving to K-Mart, Debele asked her to stop at defendant's house, claiming that defendant owed him money. After defendant came to the front door, Debele went around the side of the house with him, and, after a few minutes, both returned to the car. Defendant continued a conversation with Debele about borrowing a roto-tiller from him. As they left defendant's home, Debele told Machyousky that he did not need to go to K-Mart that evening, and so they drove home.

Machyousky knew the symptoms of heroin intoxication having lived for several years with a man that was addicted to the drug. Although Debele exhibited no such signs when he left for K-Mart, he did on the ride home from defendant's house. When Machyousky reached home, Debele went into the bathroom where Machyousky assumed he was ingesting more drugs. Police who responded to the home the next morning found a cut straw with white-powder residue on it in the bathroom garbage can. The residue was heroin.

Machyousky agreed to assist the police investigation into Debele's death by consenting to secretly record telephone conversations with defendant. She attempted to have defendant speak about the night before Debele's death, and whether defendant gave him the heroin that led to his death. A taped conversation she had with defendant on June 18, 2003 was played for the jury. We recite some of the exchange:

Machyousky: But um, I mean, did you recognize the stamp that was on the[] [bags of heroin]? You know how they stamp the bags?

Defendant: No.

Machyousky: It was a different kind? 'Cause you should be very careful.

. . . .

I mean, you know how . . . they stamp it, and they give it a name?

Defendant: Yeah.

Machyousky: He (meaning Debele) said that he didn't recognize the name on th[e] [bag] . . . that night.

Defendant: Um.

Machusky: And he was even worried about it himself. So it, it was different to you? You didn't recognize it either?

Defendant: I didn't, I didn't take notice.

. . . .

Machyousky: How many did he even get?

Defendant: Um, two?

Machyousky: He got two from you that night? And, you know, he seemed to be doing okay, George. . . . [W]ere you guys talking regularly or? I mean, I know back [in] the days before he went to rehab and when you guys were going to Newark and scoring dope and whatever, and you had some trouble with the law, and I thought, you know, you guys were doing so good, and, and he just relapsed.

Defendant: Yeah, I know.

. . . .

Machyousky: Yeah. . . . . [W]as he supposed to get a couple more from y[ou]?

Defendant: No. No. No.

Machyousky: Just what he got from you the night before.

Defendant: Yeah.

Defendant called Machyousky the next day and asked if she found any bags of heroin with stamps on them. She took notes of the conversation and gave them to the police.

Without objection, Cynthia Debele testified that her husband told her that defendant was supplying him with heroin. She testified about her husband's attempts to deal with his addiction. Cynthia claimed her husband was a homebody until defendant began to call their home "quite often," resulting in Debele frequently going out with him. After Debele lost his driver's license in early 2003, his son Gary Jr. would drive him around. He took his father to defendant's house about three or four times, and on those occasions, his father would go in for five or ten minutes and come back to the car. When they returned home, his father would just go to his bedroom, and, on occasion, Gary Jr. saw him exhibit "some weird behavior." Without objection, he was asked if he ever took his father "anywhere else that he obtained heroin?" He replied, "Not to my knowledge, no." Again without objection he was asked, "And do you know of anyone else other than . . . defendant from who your dad would have gotten heroin?" He again replied, "No, not to my knowledge."

Detective Clifford Scott Lessig of the Raritan Township Police Department responded to the Debele home on the morning of the death. He subsequently conducted an investigation that included securing the telephone records of Debele and defendant. Those records revealed a call from defendant's home to Debele shortly before 9:00 p.m. on the night before his death. The records further revealed a number of calls from the Debele residence to defendant's residence during the preceding months, including one that occurred earlier on the evening of May 30.

Lessig arrested defendant on September 4, 2003. After defendant waived his Miranda rights and agreed to speak to him, the detective played a portion of the taped phone conversation between defendant and Machyousky. Defendant told Lessig the "he would occasionally accompany Debele to purchase heroin in Newark or Irvington. . . . [H]e stated that he wouldn't purchase or use any heroin, but he would accompany Debele to keep him out of trouble." Lessig played the tape again, specifically that part of the conversation "where [defendant] . . . indicat[ed] he gave [Debele] two bags [of heroin]." At that point, defendant told Lessig "that Gary Debele tried to sell him two bags of heroin." After Lessig told defendant that his version "didn't make sense[,]" the conversation ended.

We digress briefly to recount what happened immediately before the State rested. The State produced the medical examiner, Dr. Steven M. Diamond, as an expert witness. After the State rested, defendant produced his medical expert, Dr. Karl D. Schwarz. Unfortunately, the audiotape of the proceedings was lost or destroyed, and no transcript could be prepared. As a result, we ordered a temporary remand to the trial judge to reconstruct the record. See R. 2:5-3(f).

On December 20, 2007, a hearing was held with only the judge and the trial attorneys present. All three executed a written "Statement of Proceedings in Lieu of Transcript Pursuant to R. 2:5-3(f)." That statement memorialized that: 1) each expert had testified consistently with their reports, which were attached; 2) "[p]ursuant to the Court's ruling on the State's objection, Dr. Schwartz's [sic] testimony was limited to the general confines of his report[]"; and 3) "[o]n cross-examination, Dr. Schwartz [sic] acknowledged that he did not avail himself of the pretrial offer of Dr. Diamond to make tissue samples available to him for his examination." As reflected in their reports, Diamond opined that Debele died of a drug overdose, the toxicological findings indicating that Debele had ingested heroin. Schwarz opined that Debele died of natural causes, specifically, cardiomyopathy.

Defendant again moved to reconstruct the record and demanded to be present at the hearing. We again remanded the matter for a second hearing, which was held on March 12, 2009. The judge permitted defendant to testify regarding his recollection of the trial events. We discuss the entire issue in greater detail below.

Defendant produced several witnesses at trial in addition to Schwarz. Adrienne Hawkinson, his long-term, live-in girlfriend and mother of his two children, testified that she met Debele for the first time when he and defendant gave her a ride to Newark so they could all purchase drugs. The week immediately prior to Debele's death, Hawkinson claimed that he came to their house in the early morning hours and knocked on the window of their basement apartment. That same week, she claimed Debele tried to sell defendant two bags of heroin in her presence.

Hawkinson and defendant lived with his mother, Carol Hladun. She corroborated that someone she believed to be Debele was outside her home knocking on the basement window at 4:00 a.m. on Wednesday, May 28. Defendant's co-worker, Brian Bosland, testified that he and defendant went to Debele's house to pick up a roto-tiller a couple of years prior to Debele's death. Bruce Bushman, a friend of defendant's, testified that he witnessed Debele buying drugs on Halsey Street in Newark during the last week of May 2003.

Defendant did not testify in his own behalf. After summations and charge, the jury returned guilty verdicts on both counts of the indictment.

II.

We deal first with the evidential issues raised by defendant's first point. In each instance, defendant contends that the judge erred by excluding certain relevant evidence. Collectively, he contends that the effect of these rulings was "to deprive [him] of a fair opportunity to present a defense . . . ."

Our standard of review requires us to give "substantial deference to [the] trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We generally will not disturb those rulings absent "a clear error of judgment" resulting "in a manifest denial of justice." Id. at 454; State v. Cook, 179 N.J. 533, 569 (2004).

Unless otherwise barred by our Rules of Evidence or other law, "all relevant evidence is admissible." N.J.R.E. 402. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401 (emphasis added). Relevancy demands that there be a "logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). However, even "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403; see State v. Lykes, 192 N.J. 519, 534-35 (2007).

Clearly any evidence that tended to negate the proofs regarding the necessary elements of the crime of strict liability drug-induced death, N.J.S.A. 2C:35-9, was relevant to a "fact of consequence." That statute provides in pertinent part,

a. Any person who . . . distributes or dispenses . . . any . . . controlled dangerous substance . . . in violation of subsection a. of N.J.S.[A.] 2C:35-5, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree.

b. The provisions of N.J.S.[A.] 2C:2-3 (governing the causal relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant's act of . . . distributing or dispensing a substance is the cause of a death when:

(1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and

(2) The death was not:

(a) too remote in its occurrence as to have a just bearing on the defendant's liability;

. . . .

c. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance, or by his consenting to the administration of the substance by another.

. . . .

[Ibid.]

The State must prove beyond a reasonable doubt that it was the defendant who "distribute[d] or dispense[d]" to the victim the drugs that caused his death. State v. Morrison, 188 N.J. 2, 13 (2006).

"A defendant is entitled to prove his innocence by showing that someone else committed the crime with which he or she is charged." State v. Jimenez, 175 N.J. 475, 486 (2003) (citations omitted). A defendant need not show a probability that another party committed the crime; the evidence need only raise a reasonable doubt as to defendant's guilt. State v. Fortin, 178 N.J. 540, 591 (2004). Evidence of third-party guilt nevertheless must be admissible under our Rules of Evidence. Ibid.

"The connection between the third party and the crime cannot be left to conjecture." Ibid. (citing State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). "Stated more concretely, there must be some link . . . between the third party and the victim or crime capable of inducing reasonable people to regard the evidence as bearing upon the State's case . . . ." Fortin, supra, 178 N.J. at 591 (citations and quotations omitted). The determination of whether there is a link between the third party and the crime is fact sensitive, and we review the judge's evidentiary ruling under an abuse of discretion standard. Ibid.; see State v. Cotto, 182 N.J. 316, 333 (2005).

Thus, in the context of this case, evidence that supported a reasonable inference that someone other than defendant distributed the heroin that killed Debele was highly relevant. It is in this context that we now consider defendant's specific arguments regarding the judge's evidentiary rulings.

(a)

At a pre-trial hearing, the trial judge ruled in limine on several defense proffers, including evidence that in February 2003, Debele had survived a drug overdose that was alleged to have been a possible suicide attempt. When questioned by the judge, defense counsel admitted that he had no "[d]irect evidence" that Debele had attempted suicide, but that certain defense witnesses may have heard Debele express "thoughts that amounted to suicidal ideation."

The State acknowledged that Debele overdosed on drugs in February, but claimed to have information that it was defendant who had supplied him with the drugs. Moreover, the State argued that after he recovered, Debele denied that he had attempted suicide.

When questioned about the relevancy of the evidence, defense counsel claimed it showed that Debele "was involved in drugs," that it was "part of the factual picture of the life . . . Debele was leading," and that Debele's family "circled the wagons" and implicated defendant in the death because they were concerned that Debele's death benefits as a county employee were at risk if it was determined that he committed suicide.

The trial judge determined the evidence was not relevant because the intentional ingestion of the drug by the victim is not a defense under subsection (c) of N.J.S.A. 2C:35-9. Citing N.J.R.E. 403, he also determined that the testimony would have the tendency to confuse the jury by suggesting Debele's intentional use of heroin was a defense, when it was not.

Before us, defendant makes two arguments as to the relevancy of this evidence, neither of which was advanced at trial. He contends that the evidence of a prior overdose implies the existence of another possible source of the drugs that led to Debele's death. Moreover, he contends that if Debele attempted suicide by ingesting drugs three months before his death, that would support a defense under subsection (b)(2)(a) of the statute, i.e., that his death was "too remote" to defendant's conduct to justify criminal culpability. We conclude that the evidence of Debele's prior overdose was properly excluded.

Certainly, evidence that Debele obtained the drugs from someone other than defendant was highly relevant. There is, however, no logical connection between the fact that Debele overdosed in February, whether it was a suicide attempt or not, and a fact of consequence, i.e., whether he had a source of heroin other than defendant more than three months later. Moreover, there was ample testimony that was admitted without objection from either side regarding Debele's relapse into drug use during the months preceding his death. Thus, defendant was not denied the opportunity to argue that there were other sources of heroin from which Debele obtained the fatal dose.

We also find defendant's "remoteness" argument unavailing. As used in the statute, the remoteness defense reflects a "communal determination by a jury about how far criminal responsibility should go in cases of this kind: a community's sense of justice on whether a defendant, otherwise clearly responsible under the criminal law, should be relieved of punishment because the result appeared too distant from his act." State v. Maldonado, 137 N.J. 536, 567 (1994); see Model Jury Charge (Criminal), "Strict Liability for Drug Induced Deaths" (1997) (instructing jurors to "consider how drug-induced deaths normally occur in comparison with how this death actually occurred," and "whether the State has proven beyond a reasonable doubt that the death did not occur in such an unusual manner that it would be unjust to find the defendant responsible for the death."). The Court has also noted "that under most circumstances the victim's ingestion of the drugs may not be used in any way in opposition to the State's case." Maldonado, supra, 137 N.J. at 572 (footnote omitted).

Thus, evidence that in February Debele overdosed on heroin in what was alleged to be a failed suicide attempt lacked any relevancy to the statutory defense of remoteness. The judge properly exercised his discretion in excluding that evidence.

(b)

Defendant proffered testimony from Arthur Hladun who allegedly had personal knowledge that Debele sold cocaine to support his heroin addiction in 2001, and that he, defendant and Debele would go to Newark together to buy heroin. Although defendant now argues this evidence reveals that Debele had another source of heroin, at trial defense counsel conceded, "it doesn't really have anything to do with who . . . Debele got the drugs from shortly before his death . . . ."

The judge concluded that the evidence lacked relevancy. He offered to hold an N.J.R.E. 104 hearing and allow defendant to produce the witness; defendant never made the request. We agree that the fact that Debele allegedly sold drugs in 2001 is irrelevant. As to the trips that he allegedly made to Newark with or without defendant, as we have already noted, there was significant evidence that was admitted without objection by either the State or defendant on the subject. We find no basis to reverse on this ground.

(c)

Defendant contends that the trial court erred in not permitting Hawkinson to testify that when Debele came to their house at 4:00 a.m. a few days prior to his death, he wanted defendant to accompany him to Newark to buy drugs. Hawkinson claimed that she overheard Debele pressure defendant to join him; she further claimed that Debele wanted defendant to go because on a prior occasion in Newark, while in the company of his son Gary Jr., Debele claimed they were nearly robbed. Out of apparent safety concerns for his son, Hawkinson claimed Debele wanted defendant to accompany him this time.

Defendant sought to admit Hawkinson's testimony regarding Debele's statements as an exception to the hearsay rule. See N.J.R.E. 803(c)(25) (permitting admission of a statement against interest). The State argued that the evidence was untrustworthy, irrelevant, and that its probative value was substantially outweighed by the prejudice the State would suffer because it could not ascertain from the now-dead Debele whether the statements were ever made. The judge concluded that because Debele could have had many motives for making the statements, they lacked inherent trustworthiness, and their probative value was substantially outweighed by the prejudice visited upon the State.

However, further colloquy between defense counsel, the prosecutor and the judge revealed that the State did not object to Hawkinson testifying that Debele came to their window early in the morning, "a couple of times["] during the week prior to his death. The State further did not object to Hawkinson testifying that Debele "wanted . . . defendant to go to Newark to buy drugs." Thus, the only evidence that the State sought to exclude was Hawkinson's testimony regarding Debele's claim that he had previously used his son to drive him to Newark to buy drugs.

Defendant argues before us that Debele's alleged statement should have been admitted under N.J.R.E. 803(c)(25). He claims the evidence was highly relevant 1) to show that Debele had other sources for his heroin; 2) to impeach Gary Jr.'s testimony that he never accompanied his father to Newark to buy drugs; and 3) to demonstrate that Debele's family's resentment against defendant caused them to implicate him in Debele's death.

Assuming arguendo Debele's statement that he involved his son in a prior drug-buying trip to Newark was admissible under N.J.R.E. 803(c)(25), the evidence lacks any relevancy to the issue of whether defendant supplied Debele with the drugs that killed him. During earlier evidentiary rulings, the judge clearly indicated that any evidence tending to prove that Debele obtained the heroin from someone other than defendant was relevant. We assume, therefore, that the State recognized the relevancy of that portion of Hawkinson's testimony to which it lodged no objection, i.e., that during the week before his death, Debele repeatedly asked defendant to accompany him to buy drugs in Newark. However, for reasons unexplained by the record, defense counsel chose not to ask Hawkinson why Debele appeared at defendant's window at 4:00 a.m.

To the extent Debele's statements contradicted Gary Jr.'s testimony that he never drove his father to Newark to purchase drugs, we note that the inherent prejudice to the State in permitting the decedent's alleged statements far outweighed this limited probative value. The balance of defendant's arguments in this regard lacks sufficient merit to warrant any further discussion. See R. 2:11-3(e)(2).

III.

Defendant argues that it was error to permit Machyousky to opine that Debele was high on heroin after leaving defendant's home, and to permit her and Cynthia Debele to opine that Debele exhibited signs of heroin intoxication the evening before he died. Defendant contends that the specific cause of intoxication can only be introduced through expert testimony.

The State argues that there was no objection at trial and the admission of this lay opinion testimony was harmless error, if error at all, because the autopsy plainly showed that Debele ingested heroin on the evening of his death.

Defense counsel lodged no objection to Machyousky's testimony in this regard until it was over, at which point he asked for a sidebar, stating:

Perhaps because the toxicology tests are so clear about heroin being in his system and drugs having been found in the bathroom after decedent's demise, I've been perhaps too lax with objecting to lay opinion from this witness about whether her father was under the influence of heroin. Perhaps the [c]ourt has heard enough to clarify whether or not it's allowable in the present form, whether a comment needs to be made or whether it should be stricken.

The judge, noting there had been no objection, nevertheless concluded that Machyousky's testimony was a lay opinion and "therefore valid." Defense counsel did not request any instruction from the judge. When Cynthia Debele testified, defendant made no objection.

In State v. Bealor, 187 N.J. 574, 577 (2006), the Court held that while "evidentially competent lay observations of the fact of intoxication are always admissible, lay opinion in respect of the cause of intoxication other than from alcohol consumption is not admissible because, unlike alcohol intoxication," there is no general awareness of how the effects of a particular drug manifest themselves. We agree with defendant, therefore, that the lay opinion testimony that Debele was specifically high on heroin was inadmissible.

The question becomes whether the error was harmless or whether it requires reversal. "In determining whether the admission of disputed evidence was harmless, we focus on 'whether in all the circumstances there [is] a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'" State v. Kemp, 195 N.J. 136, 149-50 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)). This requires us to consider the other evidence in the case and the relative strengths and weaknesses of the State's proofs. Kemp, supra, 195 N.J. at 150. The existence of other substantial evidence supporting defendant's guilt may render the admission of improper evidence harmless. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).

Clearly, as it relates to the cause of Debele's death, the opinion testimony of his wife and step-daughter was harmless error. As the State argues, and defense counsel conceded at trial, there was no dispute that Debele ingested heroin shortly before he died. Therefore, opinions that he was evidencing signs of heroin intoxication were insignificant to the jury's resolution of this fact.

The issue presents a closer question as to the highly disputed fact of whether defendant supplied Debele with the heroin that killed him. In this regard, the lay opinion evidence provided circumstantial evidence of the State's contention that defendant was the supplier. In other words, the opinions offered by both Machyousky and Cynthia that Debele exhibited signs of heroin intoxication after he visited defendant permitted the jury to infer that defendant supplied the drug, an essential element of the State's case.

However, even if the opinion testimony as to the cause of Debele's intoxication was excluded as it should have been, both Machyousky and Cynthia would have nevertheless been permitted to testify that Debele was intoxicated after he met with defendant, but not before. See Bealor, supra, 187 N.J. at 577. Based upon the autopsy results and the heroin residue found in the straw in the bathroom, the jury would have clearly inferred that the cause of his intoxication was heroin. Additionally, the taped conversation between defendant and Machyousky provided the jury with an admission that defendant had been the source of the heroin. Under the specific facts of this case, we conclude that permitting Machyousky and Cynthia to offer lay opinion testimony that Debele was exhibiting signs of heroin intoxication amounted to harmless error that does not require reversal.

IV.

We briefly address the arguments defendant raises in his pro se brief, none of which is of sufficient merit to warrant extensive discussion. See R. 2:11-3(e)(2).

Defendant contends that his trial counsel provided ineffective assistance. We do not address the merits of this claim which is best left for post-conviction relief pursuant to R. 3:22-4. See State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant argues that electro-cardiograms (EKGs) of Debele performed when he was hospitalized as a result of the February overdose revealed that he had an abnormal heart beat. He contends that even if evidence of the earlier overdose was barred, these records should have been admitted. However, the EKGs were never mentioned in Schwarz's report, and the reconstruction of the May 30 proceedings fails to reveal that Schwarz ever examined the EKG findings or that they were relevant to his opinions. Moreover, even without the EKGs in evidence, Schwarz was able to render an opinion regarding Debele's cause of death; the jury simply rejected it.

Defendant's argument that the missing May 30 transcript requires reversal is unavailing. Not only did the attorneys participate at the two hearings, defendant was permitted to testify at the second remand hearing and offered his recollection of events. We find this procedure fully complied with Rule 2:5-3(f) and relevant case law. See, e.g., State v. Casimono, 298 N.J. Super. 22, 26 (App. Div. 1997), certif. denied, 154 N.J. 609 (1998) (setting forth the minimal due process requirements for such proceedings). We do not believe the missing transcript has inhibited our review, and defendant's specific claims of prejudice are without merit. See State v. Paduani, 307 N.J. Super. 134, 143 (App. Div.) (holding there must be a specific showing of prejudice to mandate reversal because of missing transcripts), certif. denied, 153 N.J. 216 (1998).

Lastly, defendant's claims of prosecutorial misconduct are unavailing. He alleges that when Schwarz referenced Debele's February overdose during his trial testimony, the prosecutor objected and stated that the testimony "would not have mattered, because the defendant was with the decedent on that occasion also." Because the transcript does not exist, we cannot determine whether the comment was made in front of the jury; defendant's testimony at the reconstruction hearing does not indicate it was, and the judge made no finding as to whether the comment was actually made, and if so, what were the circumstances. In any event, such a comment could not have affected the outcome of the case because although the State successfully sought to eliminate any reference to the prior overdose, the taped conversation between defendant and Machyousky references it and defendant acknowledged on the tape that he was present when it happened.

During her summation, reviewing the testimony of defense witness Bosland, the prosecutor noted that "no one c[ould] corroborate [it] except for the defendant and except for Mr. Debele, who[] obviously passed away." At his post-verdict motion for a new trial, defendant argued that the comment infringed upon his Fifth Amendment right not to testify. The trial judge essentially noted that the prosecutor's comment was fleeting and primarily directed to the lack of any corroboration of Bosland's testimony from any source. Defendant reiterates the argument before us.

The comment was improper, but does not require reversal. "[I]n order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The fleeting remark about the lack of corroboration of testimony that was essentially inconsequential to the critical issues in the case did not deny defendant a fair trial.

Lastly, defendant contends that the prosecutor committed misconduct by claiming that she was aware of many cases in which intranasal snorting of heroin caused death. Schwarz apparently challenged the comment and, in one of the letters he sent to defendant, offered to review all autopsies performed in Hunterdon County free of charge in order to rebut the assertion. However, there is nothing in the record that indicates whether the comment was made in front of the jury, or whether there was any objection. Schwarz's theory as to the cause of Debele's death was adequately explored during direct and cross-examination, and any statement made by the prosecutor, if indeed it was made in front of the jury, could not amount to reversible error.

V.

Defendant argues that the judge imposed a manifestly excessive sentence in light of the NERA period of parole ineligibility. See State v. Marinez, 370 N.J. Super. 49, 59 (App. Div.) (modifying an "unduly harsh and severe" sentence because of the judge's failure to consider the real consequences of NERA), certif. denied, 182 N.J. 142 (2004). We find no basis to disturb the sentence in this case.

The judge noted that defendant had not graduated high school, was unemployed at the time of his arrest, and had three prior indictable convictions and two disorderly persons convictions. A bench warrant for defendant's arrest was outstanding from New York. The judge found aggravating factors three, six and nine as a result. N.J.S.A. 2C:44-1(a)(3), (6), and (9). He also found one mitigating factor in that the victim's conduct "induced or facilitated [the] commission" of the crime. N.J.S.A. 2C:44-1(b)(5). The judge concluded that the aggravating factors outweighed this one mitigating factor and sentenced defendant to the midpoint of the possible sentence range. See N.J.S.A. 2C:43-6(a)(1) (setting ordinary sentencing range for a first-degree crime between ten and twenty years).

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. See State v. Roth, 95 N.J. 334, 364-65 (1984). Here, the sentence imposed does not shock our conscience.

 
Affirmed.

Machyousky's name is spelled "Machyusky" in the trial transcripts, but on the Victim Impact Form that is in the record she spelled her name "Machyousky" which we adopt for the balance of this opinion.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We discuss below in greater detail additional testimony regarding these early morning encounters that the jury did not hear.

There are discussions of Debele's trips to Newark to purchase drugs with defendant in the taped conversation between defendant and Machyousky. To the extent these references, and those made by other witnesses at trial, relate to defendant's own purchases and use of drugs on dates not alleged in the indictment, there was apparently no objection lodged by defendant, and whether defendant was unduly prejudiced by the evidence is not an issue that has been raised on appeal.

Defendant's pro se appendix includes two letters that Schwarz sent to him in which he criticized defense counsel's performance, insisted that the prosecutor lied about the frequency of heroin overdose through intranasal snorting, and accused the medical examiner of deceiving the jury regarding whether the level of heroin found in Debele's blood was sufficient to cause death. Notably, Schwarz does not mention the allegedly abnormal EKGs in either letter.

(continued)

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31

A-4491-06T4

March 17, 2010