STATE OF NEW JERSEY v. FRANCISCO MARRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5378-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO MARRERO,

Defendant-Appellant.

_________________________________________

November 4, 2011

 

Argued December 13, 2010 Decided

 

Before Judges A.A. Rodr guez, Grall and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-0537.

 

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas, of counsel; William Nossen and Joshua L. Weiner, on the brief).

 

Frank Muroski, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Muroski, of counsel and on the brief).

 

PER CURIAM

Following a jury trial, defendant Francisco Marrero was found guilty on nine counts of an indictment charging him with crimes related to controlled dangerous substances: four counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10 and -5b(3) (counts one, five, six and eight); two counts of third-degree possession of methylenedioxyamphetamine (MDA or ecstasy), N.J.S.A. 2C:35-10 and -5b(3) (counts three and nine); two counts of second-degree distribution of gamma hydroxyburate (GHB), N.J.S.A. 2C:35-5a(1) and -5.2 (counts two and four); and one count of third-degree possession of gamma butyrolactone (GBL) (an analog of GHB), N.J.S.A. 2C:35-10a(1) (count seven). This was defendant's second trial on these charges; the first resulted in a mistrial because the jury could not reach a unanimous verdict.

The trial judge did not merge any of the convictions. He imposed two consecutive eight-year terms on the two second-degree convictions. These consecutive terms are concurrent with the terms imposed on the other convictions. We affirm but vacate the conviction oncount six.

Defendant's convictions are based on drugs that were found during a consent-search of his apartment conducted after his arrest, and his sale of drugs to Detective Donald Ingrasselino of the Bergen County Prosecutor's Office Narcotics Task Force on June 16, July 5, July 15, and August 18, 2005. The detective was acting undercover, and he arranged his four meetings with defendant with the assistance of a confidential informant (CI) whom the State did not identify. At trial, defendant did not deny delivering the drugs to the detective; his defense was entrapment by a friend who he claimed was the State's unidentified CI, N.J.S.A. 2C:2-12.

A summary of Detective Ingrasselino's testimony follows. On June 16, 2005, a CI arrived at the Bergen County Prosecutor's Office Narcotics Task Force (NTF), and told the detective that a man named "Frankie" who was living in Fort Lee was a drug dealer who distributed a variety of narcotics. The CI offered his services to the detective. Detective Ingrasselino knew that this CI had previously worked with the NTF and had himself been arrested for selling drugs in 2000. He believed the CI probably offered his assistance to get favorable treatment on another charge.

The detective accepted the CI's assistance. On June 16, the detective directed the CI to call defendant in his presence, and he listened to their conversation. The CI asked defendant whether he could bring with him a friend who wanted to buy cocaine, and defendant agreed. The detective and the CI drove together to the parking lot of defendant's apartment building. When they arrived, the CI called defendant. Defendant came down to meet them, got into the backseat of the car and gave the detective cocaine in return for $540. The detective asked defendant if he could get other drugs, and defendant said he could get GHB. The detective said he was interested. During that encounter, defendant never hesitated or indicated any unwillingness to deal with the detective.

On June 22, the CI placed another call to defendant in the detective's presence. This time the CI said his friend wanted GHB; defendant agreed to provide it and also offered cocaine. At the detective's direction, the CI said no to the cocaine but yes to the GHB. Again, the CI and the detective met defendant in the parking lot of his apartment house and paid for the GHB. Defendant told the detective he would love the product and warned him to be careful because it was very strong. When the detective asked about other drugs, defendant said he could get "E," which the detective understood to mean ecstasy, or MDA.

On July 5, the detective met the CI and they tried to reach defendant but did not succeed. Later that night, the CI called the detective and advised that he had heard from defendant, who said he had ecstasy and told the CI to come for it. Again, the three men met in the parking lot and completed a transaction, this time money for forty ecstasy pills. The detective asked defendant if he would be able to get 1000 pills, and defendant said he would.

On July 15, the detective asked the CI to see if defendant would allow him to give the detective his phone number. Defendant agreed, and the detective called him and asked for 1000 ecstasy pills. Defendant said he did not have ecstasy but offered GHB. Later that day, the detective and defendant met and completed that transaction.

On August 18, the detective had the CI call defendant and ask if they could buy cocaine. Defendant met them as usual and gave them cocaine. Immediately after that transaction, back-up officers who were listening in came to the car and arrested the men.

According to an officer who participated in the arrest, defendant consented to a search of his apartment. That search led to the recovery of one bottle of GHB, cocaine, a scale, small plastic bags and a bong.

Defendant's account of his four meetings with the detective was for the most part consistent with that of Detective Ingrasselino. The most significant difference is that defendant asserts that the money he was paid was simply a return of cash he had paid for the drugs on behalf of his long-time friend, Marlon Falco. According to defendant, Falco was the person who arranged and was present during his meetings with Detective Ingrasselino. The drugs he delivered belonged to Falco; defendant had done nothing more than pick them up for Falco and pay his supplier.

Defendant met Falco in 2004, while he was in college, through a mutual acquaintance. Defendant experimented with cocaine, GHB and ecstasy while he was in college, and he was able to do that without ever buying any drugs because his friends shared their drugs with him. He and Falco became friends and at times Falco provided defendant with free cocaine.

In January 2005, defendant ran into Falco at Studio Four, a club in Fort Lee. That night and again several weeks later, Falco asked defendant if he had any cocaine on him. Defendant replied, "no." Falco then took defendant to the men's room where they shared cocaine, which Falco gave defendant for free. Falco even gave defendant free cocaine to take home with him.

Later in 2005, defendant encountered Falco at Studio Four, and Falco invited him to his birthday party. They went to an exclusive lounge in New York City called Quo. Falco provided defendant with free ecstasy and cocaine, and introduced defendant to two individuals identified as drug dealers, "Rams" and "Tom."

On three additional occasions, Falco gave free cocaine to defendant at Studio Four. In early Spring 2005, Falco asked defendant to meet with him. Falco informed defendant that he had a disagreement with Rams and Tom, Falco's drug suppliers, and asked defendant to pick up the drugs for him; defendant declined. Falco replied that he would no longer provide defendant with free drugs. Falco promised defendant that he would make the arrangements, and all defendant had to do was pick up the drugs. Defendant agreed to pick up the drugs, pay the money which Falco gave him, and then deliver the drugs. This was done on several occasions.

According to defendant, a few days before June 16 when the CI met with Detective Ingrasselino, Falco asked defendant to pick up cocaine. However, on this occasion, Falco told defendant that he was too busy to drop off the money in advance and requested that defendant front him the money. In return, Falco agreed to let defendant keep some of the cocaine and to pay him back when he picked up the drugs.

After picking up the cocaine, defendant called Falco to pick up the drugs in the parking lot outside defendant's apartment complex. Defendant went to the parking lot and got into the rear passenger seat of a car occupied by both Falco and Detective Ingrasselino, whom Falco introduced as "Tommy." After defendant asked if they were going to go to Studio Four, Falco asked him if he had the cocaine. Defendant gave the cocaine to Falco, and Falco paid defendant the money he had fronted.

Later that night, defendant saw Ingrasselino at Studio Four. They did not engage in conversation. Defendant and Falco consumed cocaine in the club's bathroom that night.

A few days later, Falco contacted defendant and asked him to pick up some GHB for him. Falco contacted the dealer in New York, negotiated the quantity and price, and defendant agreed to front him the money. Defendant bought the GHB and delivered it to Falco and Ingrasselino, and he was repaid for the money he had paid to the New York dealer.

In July 2005, the same scenario was repeated with respect to a purchase of ecstasy. The ecstasy was delivered to Falco, in the presence of Ingrasselino. Sometime later, the scenario occurred again with respect to a bottle of GHB. However, this time Falco said that "Tommy" Ingrasselino would pick up the bottle. The transaction went according to plan.

Defendant's last transaction with the detective was on August 18, 2005. As arranged, defendant delivered cocaine to Falco in the parking lot. After he did, he was arrested.

By stipulation at trial, the jurors were advised that Falco had been charged with crimes he committed in July 2004 and that he subsequently entered into an agreement with the State and pled guilty to the charges.

As noted above, the principal defense strategy centered on the affirmative defense of entrapment, which defendant sought to support with an allegation that the State failed to properly supervise a confidential police informant. The defense contended that Falco made all of the arrangements with the suppliers; the claim was that but for Falco's getting defendant accustomed to having free drugs and his threat to cut off defendant's free supply, defendant would not have become involved in purchasing or distributing drugs.

Prior to trial, defendant made three applications resulting in evidentiary rulings that defendant challenges on appeal. The motion judge first denied defendant's application concerning the nondisclosure of the identity of the CI working with Ingrasselino in the NTF.

Defendant also moved to present expert testimony by Michael Levine on supervision of CIs. The State objected. The motion judge denied the application, finding that the elements of undercover narcotics procedure and the supervision of a CI were not beyond the ken of the average juror, and expert testimony would impermissibly usurp the jury's role as the trier of fact. He reasoned that the affirmative defense of entrapment presented a factual issue, and jurors could reasonably decipher what the facts were without expert testimony.

The third pretrial motion was heard by the trial judge. Defendant had subpoenaed the State for the materials distributed at a seminar for undercover narcotics officers known as "Top Gun." Defendant had learned that Ingrasselino had attended this course. The trial judge granted defendant discovery of the training manual, and stated that he would do an in camera review in order to determine which portions were relevant to defendant's request. However, on motion of the Attorney General of New Jersey, the judge quashed a subpoena served upon that office to produce the manual.

In her opening remarks, the assistant prosecutor, told the jury:

[Y]ou're never going to hear the name of the confidential informant mentioned by the State and the reason why is because we make them a promise that we will keep their identity confidential. There are laws and in fact there's a court order protecting that confidentiality.

 

During trial, defendant called Falco to testify outside the presence of the jury. Falco invoked his Fifth Amendment privilege and was excused.

Defendant testified and essentially admitted to the underlying conduct.

During his summation, defense counsel stated: "[T]here's been no testimony by the Prosecutor's Office that refute[s] any of the testimony given by [defendant]." The prosecutor's immediate objection was sustained. Defense counsel continued: "Now for you to -- well, there's three people to this case, the confidential informant and as you heard the Prosecutor there's an order saying that we can't call him. His identity is confidential. That doesn t stop us from identifying him but we can't call him." The prosecutor again objected. The trial judge stated to defense counsel: "You can call any witness you wanted to . . . . You had the opportunity to call any witnesses." Defense counsel responded: "Well, except the confidential informant." The prosecutor objected and wanted to be heard at side bar. The judge responded:

No. We're not going to hear it. Ladies and gentlemen, that s not the law. Defense had a right to call any witnesses, could have called any witnesses. Whether Mr. Falco was or was not the confidential informant we don't know but he was not called as a witness so we don't know where he stands.

 

Defense counsel then objected and requested to speak at side bar.

At side bar, defense counsel objected to the judge's characterization that the defense could have called the CI. Counsel claimed that he was responding to the prosecutor's statement in her opening that there is an order regarding the confidential informant and he is not supposed to be called. The judge responded that defense counsel did call him and he asserted his Fifth Amendment privilege not to testify.

Defense counsel asked for a mistrial or alternatively fora curative instruction. The trial judge denied the mistrial motion, but gave the following instruction to the jury:

I did indicate either side could call any witnesses they want. The fact that someone calls a witness or doesn t call a witness, no inference can be made one way or the other. You're not allowed to read anything into it or read anything out of it. There may be reasons why someone is not called. There may be reasons why someone is not available. We don t know those reasons. So you cannot attribute positive or negative circumstances [to] the fact that a witness was not called.

 

On appeal, defendant contends that:

THE TRIAL COURT'S VARIOUS PRE-TRIAL EVIDENTIARY RULINGS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE AND A FAIR TRIAL.

 

Specifically, defendant contends that the evidentiary rulings regarding: (a) the nondisclosure of the identity of the CI; (b) the admissibility of the expert opinion of Michael Levine; and (c) the production of a portion of the "Top Gun" training manual, all constituted an abuse of discretion. We disagree.

Non-Disclosure of CI's identity

Defendant argues that the motion judge erred by not ordering the disclosure of the CI's identity. Our review is for abuse of discretion. State v. Milligan, 71 N.J. 373, 383-84 (1976). Although we agree that the judge should have required the State to confirm or deny Falco's identity as the informant, we conclude that in the circumstances of this case the error was harmless and does not warrant reversal of these convictions. R. 2:10-2.

N.J.R.E. 516, the CI privilege, provides:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a government division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

 

[N.J.R.E. 516 (also codified as N.J.S.A. 2A:84A-28) (emphasis added).]

 

It is well-settled that the State's right to invoke the informant's privilege depends on the balance of competing interests "'the public interest in protecting the flow of information against the individual's right to prepare his defense.'" State v. Florez, 134 N.J. 570, 579 (1994) (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628-29, 1 L. Ed. 2d 639, 646 (1957)). The proper balance depends "'on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'" Ibid. As the Supreme Court has observed, the privilege is not available "when the informer is an essential witness on a basic issue in the case, when the informer is an active participant in the crime for which the defendant is on trial, when the defendant may reasonably assert the defense of entrapment, or when fundamental principles of fairness to the accused mandate disclosure." Id. at 579. Here, the alleged conduct of the CI was the basis for defendant's entrapment defense.

Defendant's argument is that the identity of the CI was critical to his entrapment defense. With respect to the entrapment defense, the identity of the CI was only important to the defense because of the need to establish that Falco's role in persuading defendant to commit the crimes was attributable to the State. Defendant presented his defense on the assumption that Falco was the confidential informant. Other courts have found non-disclosure of the informant's identity to be harmless error under similar circumstances. See Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947) (discussed in Rovario, supra, 353 U.S. at 62 n.12, 77 S. Ct. at 628 n. 12, 1 L. Ed. 2d at 646 n.12); Daniel v. Commonwealth, 427 S.E.2d 423, 426 (Va. Ct. App. 1993).

The verdict strongly suggests that the jurors viewed Falco as a government agent. On counts one, three, five, and six of this indictment, which charged defendant with distribution of ecstasy and cocaine, the jurors acquitted defendant of distribution and convicted him only of possessing the drugs. That suggests that the jurors were persuaded by defendant's testimony that Falco had induced him to distribute those drugs by supplying him with both cocaine and ecstasy at no charge and then threatening to cut off the supply. Conversely, the jurors found defendant guilty of distributing GBH. Defendant did not testify that Falco shared GBH him with him before he agreed to pick up that drug, and there was no evidence that he had become accustomed to using it. Defendant's testimony about the drugs Falco gave him before he became Falco's courier is the only evidence that distinguishes the transactions involving cocaine and ecstasy from those involving GBH. Further, had the jurors not made that link, it is unlikely that they would have requested clarification of the judge's instruction on the entrapment defense. Thus, it is reasonable to conclude that the withholding of the name of the CI did not prejudice defendant's entrapment defense in any way.

There is additional support for our conclusion that the State's invocation of the privilege was incapable of producing an unjust result. Here, we focus on factors relevant to fundamental fairness theimpact on defendant's ability to present a defense and his right to cross-examine witnesses against him.

Defendant testified about his defense. In addition, through admission of the stipulation concerning Falco's guilty plea, defendant was able to point out Falco's interest in convincing defendant to commit crimes he would not otherwise have committed so that Falco could curry favor with the State. The inference of Falco's motive to entrap defendant was further supported by Detective Ingrasselino's testimony about the CI's probable interest in securing favorable treatment on a charge. Thus, defendant was not unfairly deprived of his ability to present his defense.

It also clear that defendant was not denied the right of cross-examining a witness against him. With the exception of the CI's initial characterization of defendant as a drug dealer, which was not material to these charges, the State's evidence did not include any hearsay statement made by the CI. The participating detective and defendant were the only witnesses who testified about these transactions.

For all of the foregoing reasons, we conclude that defendant is not entitled to reversal of his convictions because the State was allowed to keep the identity of the CI "secret."

Expert Testimony

Defendant argues that the motion judge impermissibly barred himfrom presenting the expert testimony of Michael Levine. We disagree.

We first address the principles of the entrapment defense. "The defense of entrapment, which serves to excuse the defendant from criminal responsibility, can arise whenever a defendant introduces evidence of the government's involvement in the crime through initiation, solicitation, or active participation." State v. Johnson, 127 N.J. 458, 464 (1992) (citing Ted K. Yasuda, Entrapment as a Due Process Defense, 67 Ind. L.J. 89, 92 (1982)).

In claiming the affirmative defense of entrapment, defendant relies on N.J.S.A. 2C:2-12, which provides:

a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:

 

(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

 

(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

 

b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.

 

[Id. (emphasis added).]

 

This Code defense, as opposed to the due process entrapment defense which is not at issue in this case, "requires that the defendant address an objective prong that stresses the nature or character of government conduct. That conduct must involve (1) 'methods of persuasion or inducement' that (2) create 'a substantial risk' of the commission of a crime (3) by a person not otherwise 'ready to commit [that crime].'" Johnson, supra, 127 N.J. at 468 (quoting N.J.S.A. 2C:2-12a(2)). This "test focuses on 'the ability of the average person, rather than the particular defendant, to withstand inducements to engage in criminal activity.'" Ibid. (quoting State v. Rockholt, 96 N.J. 570, 579 (1984)).

Here, defendant argues that Levine's testimony was relevant and material to aid the jury in two areas: (1) the proper undercover procedures that should have been used in the investigation of defendant; and (2) the absence of CI supervision and handling in this case. Defendant relies on State v. Berry, 140 N.J. 280, 290 (1995) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)), where the Court set forth three requirements for the admission of expert testimony:

"(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony."

 

Defendant alleges that the NTF undercover operation was inconsistent with long-standing professional standards. However, from our review of the trial record and the statutory entrapment defense, we conclude that the issue here is not whether NTF adhered to a recognized standard in conducting the undercover operation that led to defendant's arrest. Rather, the issue is whether the CI, a police agent, "employ[ed] methods of persuasion or inducement which create[d] a substantial risk that [these crimes would] be committed by persons other than those who are ready to commit" them. N.J.S.A. 2C:12-2a(2). Adherence to or departure from accepted standards of undercover operations involving a CI does not aid the jury in determining whether the CI's conduct caused defendant to engage in conduct that defendant would not have otherwise committed. Put another way, the question is whether the CI made knowingly false statements about the legality of the conduct to defendant, or employed methods of persuasion, that created a substantial risk that defendant would commit a crime, which defendant was not ready to commit. That was a factual dispute for the jury to determine involving a normative judgment in light of common understanding about human nature.

Defendant compares his situation to that in State v. B.H., 183 N.J. 171, 177 (2005), where the Court considered the admissibility of expert testimony proffered by a defendant to assist in proving an affirmative defense. However, in that case, the proffered defense was based on the "battered woman syndrome," which involves technical knowledge about an abnormal condition. Id. at 181, 195.

Defendant also seeks to compare his situation to procedures in malpractice and product liability litigation. This effort is misplaced. It is based on a fallacy, i.e., that deviation from a police standard of conduct tends to prove entrapment by the police and submission by the defendant. The common experience of human beings in general does not lead to that conclusion. In fact, whether the defense of entrapment excuses a defendant's criminal actions is not a matter that is outside the ken of properly instructed jurors. The jury wasevaluating the conduct and interaction between defendant and Falco. The jury could rely on its common experience to determine the elements of the entrapment defense: was defendant caused to engage in conduct in which he would not have engaged except for Falco's inducement and encouragement. The question was not what police officers should do to minimize the risk of impermissibly persuasive actions but whether impermissible methods were used.

Quashing of Subpoena

Defendant also argues that the trial judge erred by quashing his subpoena for a limited portion of the "Top Gun" training manual. We reject this argument for substantially the same reasons that we determined that it was not error to exclude defendant's expert testimony. The "Top Gun" manual was simply a component of the argument we have already rejected: non-adherence to a police standard for undercover operations is not evidence tending to prove or disprove that the State entrapped the defendant into committing the crimes of which he was convicted.

We are mindful that "[o]ur discovery rules are to be liberally construed because we adhere to the belief that justice is more likely to be achieved when there has been full disclosure and all parties are conversant with all available facts." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000). However, even in civil cases, the scope of discovery is not infinite and "is limited by Rule 4:10-2(a) to information that is 'relevant to the subject matter involved in the pending action . . . .'" K.S. v. ABC Prof'l Corp., 330 N.J. Super. 288, 291 (App. Div. 2000). In this context, N.J.R.E. 401 supplies the definition of relevancy. See ibid. Relevant evidence has a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Therefore, we affirm the trial judge's decision quashing the subpoena.

Defendant also contends that:

THE TRIAL JUDGE'S INAPPROPRIATE COMMENTS MADE IN THE PRESENCE OF THE JURY, INCLUDING HIS CONFUSING AND ERRONEOUS JURY CHARGE REGARDING DEFENDANT'S ENTRAPMENT DEFENSE, DENIED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND CONSTITUTED REVERSIBLE ERROR.

 

Specifically, defendant argues that: (a) the trial judge injected his opinion as to the meaning of testimony provided by Detective Booth; (b) irrevocably prejudiced the jury by raising a negative inference from defendant's alleged failure to call the CI as a witness; (c) failed to instruct the jury that the entrapment defense applied to each and every substantive offense of the indictment; and (d) erred by citing State v. Riccardi1 when clarifying the use of the word "trap."

Judge Interjecting His Opinion

Defendant argues that the trial judge gave the jury his opinion on what Booth meant when he testified that defendant admitted to having "dealt" drugs rather than "selling" them, and that this impermissibly influenced the jury and usurped its role as the ultimate arbiter of fact. Booth testified on direct examination that defendant admitted that he "sells" cocaine, ecstasy, and GHB. On cross-examination, defense counsel sought to impeach that testimony by reading back testimony where Booth stated that defendant had "dealt" drugs as opposed to had "sold" them. The prosecutor objected.

The trial judge asked defense counsel, "[a]re you making the distinction between the word dealt drugs and sold drugs . . . ?" Counsel answered, "Yes." The judge then stated:

I'll let the jury make -- I'll permit the question. I'm going to overrule the objection. I think that dealing drugs and selling drugs may be the same thing but you may think it is different, folks. So what your recollection is and your understanding of common language is [sic] up to you. I'm going to permit this question and this line of questioning. I'm overruling the objection of the Prosecutor.

 

Defense counsel then objected, stating that he thought "dealt" and "sell" are different and the judge was interjecting his opinion into the case.

Defendant argues that the judge's comment violates N.J.R.E. 605, which provides that "[t]he judge presiding at the trial may not testify as a witness in that trial." Defendant relies on State v. Ray, 43 N.J. 19, 25-26 (1964), which instructs that a judge must be careful with what he or she says in front of a jury, especially in instances where the case rests primarily on the jury believing or rejecting a defendant's version of events.

We conclude that neither N.J.R.E. 605 nor Ray addresses what occurred here. In Ray, counsel objected to "the judge's lengthy interrogation of a witness" and "frequent interrogation of the defendant." Id. at 28. The Supreme Court held that those improprieties, viewed collectively, deprived the defendant of a fair trial. Id. at 29-30.

At this trial, the brief comment by the trial judge was not testimony. Cf. State v. Ridout, 299 N.J. Super. 233, 239 (App. Div. 1997) (finding reversible error in trial judge's statements to jury regarding credibility of identification evidence). Moreover, the judge gave a curative instruction. See State v. McGraw, 129 N.J. 68, 77 (1992). We disagree with defendant's claim that the curative instruction was grossly insufficient to rectify the prejudice to defendant. The judge gave an instruction that addressed the language in defense counsel's closing. Jurors are presumed to have followed the court's instructions. State v. Nelson, 173 N.J. 417, 478 (2002) (citing State v. Manley, 54 N.J. 259, 270 (1969)).

Negative Inference Due To Failure To Call CI

Defendant argues that the judge's instructions to the jury regarding defendant's failure to call the CI as a witness created a negative inference. At the start, we note that the prior ruling by the motion judge was that the State did not have to reveal the identity of the CI. That ruling did not preclude defendant from calling any witness. Therefore, defense counsel's statement was somewhat misleading when he remarked that, ". . . as you heard the [p]rosecutor there is an order saying that we can't call him. His identity is confidential. That does not stop us from identifying him, but we can't call him." It tended to lead the jury to conclude that the judge ordered, at the assistant prosecutor's request, that Falco could not be a witness. That was contrary to the facts. Falco, not the judge or prosecutor, had made himself unavailable by invoking his privilege against self-incrimination.

We find no error or misstatement of the law by the judge's instructions to the jury about inferences from the calling or non-calling of witnesses. Moreover, to the extent that the judge's comment could be construed as permitting a negative inference based on failure to call any witness, the judge corrected that misimpression. He directed:

I did indicate either side could call any witness they want. The fact that someone calls a witness or doesn't call a witness, no inference can be made one way or the other. You're not allowed to read anything into it or read anything out of it. There may be reasons why someone is not available. We don't know those reasons. So you cannot attribute positive or negative circumstances [to] the fact that a witness was not called.

This instruction adequately addressed any suggestion that the jury could draw a negative inference from defendant's failure to produce the CI or Falco With respect to Falco, who invoked his fifth amendment privilege, it was fully consistent with McGraw, supra, 129 N.J. at 77.

Entrapment Defense Instruction

Defendant argues that the judge improperly instructed the jury as to the entrapment defense and how it applies to each and every substantive offense of the indictment. We are not persuaded. The trial judge read the entrapment charge to the jury twice, during the initial charge, and when the jury asked for clarification of the word "trap." The instruction tracks the applicable Model Jury Charge.

Defendant complains that although the judge briefly discussed the entrapment defense, he did not remind the jury of its existence for each one of the nine offenses. However, defense counsel stated throughout the trial and in his summation that defendant relied on the defense of entrapment for every charge against him. We note that the jury acquitted defendant of three distribution charges. Therefore, judged against the plain error standard, we have no warrant to interfere. R. 2:10-2.

Use Of The Word "Trap"

Defendant contends that the trial judge improperly clarified the word "trap." We disagree.

During the jury's deliberations, the jury asked for clarification of the word "trap," as used in N.J.S.A. 2C:2-12. The trial judge, over the objection of defense counsel, recited language from State v. Riccardi, 284 N.J. Super. 459 (App. Div. 1995), which defendant contends is entirely distinguishable from the facts in this case.

Defendant argues, based on language from Riccardi, that the judge grossly misled the jury because in that case the claim was that the police entrapped the defendant, whereas here defendant claimed that the CI entrapped him. We do not accept this argument. Defendant raises the defense of entrapment, which focuses on the conduct of "[a] public law enforcement officer or a person engaged in cooperation with such an official." N.J.S.A. 2C:2-12. Therefore, here, the actions of Falco are imputed to the State.

The trial judge first read to the jury language from Florez, supra, 134 N.J. 570, and then language from Riccardi, supra, 284 N.J. Super. 459. In clarifying entrapment, the judge stated that a defendant must show that the crime was a direct result of police action. Then the judge stated:

I'm going to refer you to two cases. The first is State v. Flore[z] . . . . It's a 1994 case. Part of the language of that case says that where the Court examined a transaction where a government informant indicated that defendant was interested in buying cocaine the informant told the defendant that he knew a seller. A police officer pretended to sell the drugs and then arrested the defendant.

 

Several factors that might indicate entrapment exist. Those factors include hiring an informant on a contingent fee basis, targeting the defendant on the unsupervised decision of the informant rather than reasonable suspicion of intent to commit the crime, and possible state supply of purchase money.

 

We read that in conjunction with the case that was decided one year later, in 1995, State v. Riccardi . . . . That case held that an undercover officer does not act improperly by initiating and pursuing a conversation in character with a person he had no reason to suspect of having a predisposition for criminal activity.

 

Both portions of the trial judge's instruction must be read together to understand what he told the jury. Although it is correct that defendant did not claim that the police entrapped him, defendant did maintain that the CI was not properly supervised, which led to the entrapment. Because the judge properly set forth case law addressing entrapment, and that included language on the unsupervised decision of a CI, we perceive no error.

Cumulative Effect

Defendant also argues that the cumulative effect of the claimed errors in this issue denied him a fair trial. Because we conclude that there is no merit to any of these claimed errors, this argument fails.

Defendant also contends:

THE PROSECUTOR'S INAPPROPRIATE COMMENTARY ON PREJUDICIAL MATTERS NOT AT ISSUE, AND HER REPEATED VOUCHING FOR THE CREDIBILITY OF THE STATE'S WITNESSES INFRINGED ON DEFENDANT'S RIGHT TO A FAIR TRIAL AND CONSTITUTED REVERSIBLE ERROR.

 

Specifically, defendant argues: (a) the prosecutor made impermissible references to residue in a decorative bong found in defendant's apartment; and (b) she repeatedly vouched for the credibility of the State's witnesses. We disagree that any comments deprived defendant of a fair trial.

It is true that "prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). To warrant reversal, a prosecutor's misconduct must constitute a clear infraction and substantially prejudice a defendant's fundamental right to have a jury fairly assess the merits of his or her defense. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

"The standard for reversal based upon prosecutorial misconduct is well-settled in the law. It requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Whether a prosecutor's misconduct denied a defendant a fair trial requires consideration of both the "tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Ibid. On appeal, a court will consider: (1) whether defense counsel made timely and proper objections to improper remarks; (2) whether the remarks were promptly withdrawn; and (3) "whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Id. at 575-76 (internal quotations omitted).

Impermissible References To Residue

During the consensual search of defendant's apartment, the detectives found what appeared to be a glass bong. Defendant testified that it was a decorative item that had been filled with sand and seashells. The prosecutor suggested in front of the jury that the "residue" in the bong looked like marijuana residue. Defense counsel objected. The judge stated that this case had nothing to do with marijuana, and instructed the jury to disregard the statement.

The State made the same suggestion during closing argument. The prosecutor showed the article to the jury, and stated: "Take a look at this when you're in the jury room and you look. You look and see if this looks like this is residue of sand and mini seashells or if it's residue of something else." The judge overruled the objection.

State Vouching For Witnesses

In addressing prosecutorial comments during summation, the court in State v. Marquez, 277 N.J. Super. 162, 172-73 (App. Div. 1994) (internal citations and quotations omitted), certif. denied, 141 N.J. 99 (1995), stated:

This court has remarked that instances of prosecutorial excesses in the course of summation seem to come to this court with numbing frequency. We have, however, steadfastly adhered to the view that in order to warrant reversal, the improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case. We have done so out of our recognition that public security should not suffer because of a prosecutor's blunder.

 

Here, the prosecutor should not have made any reference to marijuana. However, the judge told the jury to disregard the first comment, and the comment in summation did not specifically mention drug residue. It is a stretch to find that this was prejudicial and led the jury to convict defendant of much more serious drug use and distribution. In fact, defendant did not contest that he was involved in drug transactions but instead asserted the defense that he was entrapped.

During summation, the prosecutor also made the following comments. The detectives "testified credibly. They testified truthfully. Detective Ingrasselino came in and he was very candid with you." "The State's witnesses testified in compliance with a court order. He [sic] didn't do anything to mislead you, to try and cover anything up, to try and hold any information from you that you'd otherwise be entitled to. . . . He came into court and he testified to you truthfully . . . ." Ingrasselino "came and testified to you and he told you why on four of the five sales why his conversation was not recorded and he was being very, very truthful to you." Booth "testified very candidly and have [sic] very truthfully and he told you everything that went on with regards to his involvement. . . . He testified truthfully." Booth "didn't lie to you. He testified truthfully to you. He was very, very candid. . . . And I had say [sic] to you, members of the jury, that when he came in, he testified, he was completely candid. He was truthful and he explained to you . . . ." "He testified very truthfully and candidly with regards to that."

It has been repeatedly held that a prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony. However, defendant compares the prosecutor's statement to one made in Frost, supra, 158 N.J. at 81, where the prosecutor stated "there is absolutely no evidence in this case that shows wrongdoing by the officers. . . . No evidence of any wrongdoing whatsoever."

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

Here, in summation defense counsel claimed that Ingrasselino "added things that were not in his report," and that he deliberately chose to keep them out so he could say "whatever he wants to say depending on the case." Defense counsel argued that Booth lied about finding the scale with the drugs rather than with electronic equipment. Further, counsel claimed that both detectives were "deliberately deceiving" the jury. He asked the jury, "How can we trust what he says to you?" and stated that if Ingrasselino did moonlighting as a real estate agent, he would make exaggerated and false statements. No objections to any of the prosecutor's comments were made at trial.

Prosecutors are expected to make "vigorous and forceful closing arguments to juries." Timmendequas, supra, 161 N.J. at 587. While the prosecutor in this case repeatedly stated that the testimony was truthful, in the context of both summations, defendant has not shown plain error.

Defendant also challenges his sentence, contending,

THE TRIAL COURT INAPPROPRIATELY IMPOSED CONSECUTIVE SENTENCES ON COUNTS TWO AND FOUR OF THE INDICTMENT.

 

DEFENDANT'S EIGHT-YEAR STATE PRISON SENTENCE ON COUNTS TWO AND FOUR MUST BE REDUCED AS THE TRIAL COURT INAPPROPRIATELY FOUND AGGRAVATING FACTORS ONE AND THREE IN IMPOSING SENTENCE.

 

We agree that there must be a resentencing hearing.

Defendant was thirty-eight years-old at the time of the sentence. He had no history of convictions. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (1) the nature and circumstances of the offense; (3) the risk that defendant will commit another offense; and (9) the need for specific and general deterrence from violating the law.

The judge also found two of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (2) defendant did not contemplate that his conduct would cause or threaten serious harm; and (7) defendant has no history of prior delinquency or criminal activity. The trial judge explained his findings as follows:

Aggravating and mitigating circumstances. Aggravating factor one. I find the nature and circumstances of the offense and the role of the defendant an aggravating factor.

 

I find aggravating factor three, there is a risk this defendant will commit another offense. I find that always exists. And nine, I find the need to deter this defendant and others does exist in this particular case as it always does.

 

Mitigating factors. I find two mitigating factors. I find mitigating factor two, that this defendant did not contemplate that his conduct would cause or threaten serious harm. And I find mitigating factor seven that there is no history of any crime or delinquency prior to this conviction. That he's led a law-abiding life for a substantial period prior to this offense.

I do find, however, that the aggravating factors outweigh substantially the mitigating factors.

 

This statement by the judge comprises his entire explanation for determining that an eight-year term on each of the second-degree counts was appropriate.

We are satisfied that the sentencing judge failed to explain how he arrived at the conclusion that "the aggravating factors outweigh substantially the mitigating factors." "Merely enumerating those factors does not provide any insight into the sentencing decision, which follows not from a quantitative, but from a qualitative analysis." State v. Kruse, 105 N.J. 354, 363 (1987).

Not only did the judge fail to engage in a "qualitative analysis[,]" ibid., of the sentencing factors, his findings contain an apparent inconsistency that requires explanation, namely that both aggravating factor number one and mitigating factor two are present. It is not clear how the "nature and circumstances of the offense and the role of the actor therein," N.J.S.A. 2C:44-1(a)(1), can be an aggravating factor if "defendant did not contemplate that his conduct would cause or threaten serious harm[?]" N.J.S.A. 2C:44-1(b)(2). The judge provided no explanation for this apparent anomaly.

Moreover, the judge found that aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3), (9), "always exist[,]" without offering any insight as to how either of those factors applied to defendant's particular circumstances. The absence of such insight or explanation renders the judge's findings devoid of any "qualitative analysis." Kruse, supra, 105 N.J. at 363.

"The Court Rules require that the sentencing court explain the reasoning behind its findings" with respect to aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010) (citing Rule 3:21-4(g)). Here, the judge did not identify the facts that supported his findings on the aggravating and mitigating factors.

That explanation is important for meaningful appellate review of any criminal sentence challenged for excessiveness. The reviewing court is expected to assess the aggravating and mitigating factors to determine whether they were "based upon competent credible evidence in the record." An appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court. However, when an appellate court determines that the trial court has found aggravating and mitigating factors unsupported by the record, the appellate court can intervene and disturb such a sentence with a remand for resentencing.

 

[Ibid. (citations omitted).]

 

In light of the complete lack of any qualitative analysis of the pertinent sentencing factors, as well as what appears to be a blatant inconsistency in finding aggravating factor one and mitigating factor two, we are compelled to conclude that the judges findings are "unsupported by the record [.]" Ibid. Therefore, we remand this matter for resentencing. On remand, the judge must comply with his obligation to render "findings of fact that are grounded in competent, reasonably credible evidence[,]" and to "apply correct legal principles in exercising [his] discretion." State v. Roth, 95 N.J. 334, 363 (1984).

In State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court explained that the sentencing judge should set forth in his or her decision the reasons for imposing either a consecutive or concurrent sentence. Some reasons should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 

(d) any of the crimes involved multiple victims; [and]

 

(e) the convictions for which the sentences are to be imposed are numerous.

 

[Id. at 644 (footnote omitted).]

In addressing the Yarbough factors, we note that the two sales were more than three weeks apart. This does not indicate a single period of aberrant behavior. We perceive no error in the imposition of consecutive terms.

On appeal, the State correctly concedes that the count six conviction for possession of CDS must be reversed because it is based on a charge that combines the conduct for which he was convicted charged in counts one and five. Accordingly, we vacate the conviction on count six.

W

e remand for a resentencing hearing and entry of an amended judgment vacating the conviction and sentence imposed on count six. In all other respects, including our determination that consecutive sentences are appropriate, the judgment of conviction is affirmed.

1 284 N.J. Super. 459 (App. Div. 1995).