STATE OF NEW JERSEY v. ERIK A. PETRIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIK A. PETRIC,

Defendant-Appellant.

October 1, 2013

Argued September 9, 2013 - Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-03-0508.

Vincent J. Sanzone, Jr., argued the cause for appellant.

Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was found guilty of second-degree possession of cocaine in a quantity of one-half ounce or more with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); third-degree possession of marijuana in a quantity of one ounce or more with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11) (Count Three); and fourth-degree possession of marijuana in a quantity of more than fifty grams, N.J.S.A. 2C:35-10a(3) (Count Four).

The judge granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) and, after merging Count Two into Count One, and Count Four into Count Three, sentenced defendant to eleven years' imprisonment, with a forty-two month period of parole ineligibility on Count One, and five years' imprisonment on Count Three, to run concurrently. The appropriate penalties and license suspension were also imposed.

On appeal, defendant raises the following arguments:

I. THE MOTION JUDGE ERRED IN REFUSING TO COMPEL THE STATE TO PROVIDE THE CELL PHONE NUMBER OF THE CONFIDENTIAL INFORMANT, AND ERRED IN DENYING DEFENDANT A FRANKS1 HEARING.

A. The Motion Judge Erred in Denying the Defendant a Franks Hearing.

II. THE MOTION JUDGE ERRED IN DENYING THE DEFENDANT EVIDENCE AS TO WHETHER SGRO LIED, BECAUSE IF HE DID IT WAS STILL DISCOVERABLE UNDER BRADY V. MARYLAND2.

III. THE STATE FILED ITS EXTENDED TERM APPLICATION OUT OF TIME, AND HENCE, THE COURT ERRED IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM.

IV. THE TESTIMONY OF THE STATE'S INTENT TO DISTRIBUTE EXPERT WAS PREJUDICIAL AND THAT COMBINED WITH THE PROSECUTOR'S SUMMATION REGARDING HIS TESTIMONY DENIED THE DEFENDANT A FAIR TRIAL.

A. The Prosecutor's Summation Was Prejudicial and Denied the Defendant a Fair Trial Because He Compounded the Inappropriate Comments of the Expert Witness.

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

I.

Prior to trial, defendant moved to compel discovery of, among other things, the cell phone number of a confidential informant (CI) referenced in an affidavit of Berkeley Township police detective Anthony Sgro submitted in support of an application to search defendant's car and home on October 17, 2008. In his affidavit, Sgro stated he had been assigned to work with the Special Operations Group of the Ocean County Prosecutor's Office, and that during the week of September 14, 2008, he and another investigator met with a CI who described defendant and stated defendant was distributing marijuana and cocaine from his home.

The CI stated he or she had purchased marijuana from defendant in the past, and in the officers' presence called defendant's cell phone in an effort to arrange a "controlled buy" of marijuana. Defendant instructed the CI to come to his home to make the purchase.

After ensuring the CI had no contraband on his person, the officers watched as the CI was allowed into defendant's home. The CI emerged thereafter with a "green vegetative matter" later found to be marijuana.

During the week of October 12, 2008, the CI contacted Sgro and said defendant had contacted him or her and stated he would be traveling to Staten Island "on Friday" in his Silver Toyota Camry to purchase a "large quantity of marijuana." On Friday, October 17, 2008, Sgro and another investigator in an unmarked car followed defendant to Staten Island from his Ocean County home. Approximately two hours later they saw defendant leave Staten Island and enter the Parkway south, exiting in Ocean County, where they pulled defendant over.

A police dog indicated that vehicle contained a controlled dangerous substance (CDS). Defendant was taken into custody and Sgro submitted the affidavit for a search warrant for defendant's vehicle and home, based on the dog's identification as well as the CI's information and the officer's observations of the previous "controlled buy." After the warrant was issued, a search of the vehicle revealed over three pounds of marijuana in a knapsack in the trunk as well as $1494 in the center console. At defendant's home, police discovered more marijuana, and over ninety-two grams of cocaine divided into 141 clear plastic bags, together with a digital scale and many empty ziplock bags.

Thereafter, defendant was indicted for the offenses alleged to have occurred on October 17, 2008. No charges were brought against defendant based upon the "controlled buy" the CI had made during the week of September 14, 2008. Prior to trial, defendant moved to compel production of the CI's cell phone number to prove that the initial phone call between defendant and the CI actually took place, arguing he was entitled to the number in order "to corroborate . . . why [Sgro] had probable cause." The judge denied the motion, and determined, in pertinent part, that the information sought pertained only to the search warrant and that:

The information, materials and documents sought to be obtained would amount to a fishing expedition to locate or glean some item that would establish intentional wrongdoing or misconduct on the part of law enforcement. The defendant has made no preliminary showing of any intentional wrongdoing by law enforcement in this application, and for those reasons I am going to deny the application. . . .

Defendant then moved again to suppress the evidence discovered by the officers pursuant to the search warrant or, alternatively, for a Franks hearing. Defendant submitted affidavits from thirteen of fifteen individuals who spoke to him on his cell phone during the week of September 14, 2008, stating they had no CDS-related conversations with defendant that week. Defendant argued that these affidavits supported his contention that Sgro had lied in the search warrant affidavit.

The judge disagreed and denied the motion. He reasoned, in pertinent part:

The defendant in this case is not entitled to an evidentiary hearing under Franks. The defendant has failed to show by a preponderance of the evidence the affiant, Investigator Sgro, either intentionally or with reckless disregard for the truth made false or misleading statements in support of the warrant to search the defendant's residence or silver Toyota that the defendant drove on October 17, 2008.

The defendant's offer of proof does not cover all of the callers to the defendant's telephone in this particular case, I believe it was 13 out of the 15 calls were covered. Furthermore, any of the affiants contacted by the defense counsel could have been the confidential informant and, therefore, subject to an impossible decision between providing an affidavit to the defense counsel and revealing his or her identity. This dilemma faced by a potential affiant who may have been a CI diminishes the weight to be accorded to those affidavits.

In addition to these deficiencies, the subject phone call at issue resulted in a controlled buy and that corroborates the contents of that phone call, i.e., that the defendant had a quantity of marijuana that he was willing to sell to this particular CI at this residence again as a result of the CI's call to the defendant during the week of September 14. This telephone call was not the sole basis on which the search warrant was requested and executed, but a step in the process to establish sufficient grounds ultimately to secure the search warrant.

The information later supplied by the CI regarding the defendant's trip to Staten Island to secure a large quantity of marijuana during the week of October 12, that was corroborated by the police officer's later observations of the defendant's trip to and from Staten Island and quashes any claim that the police were acting on stale information in support of the request for a search warrant.

Because the defendant cannot show by a preponderance of the evidence that the information contained in the affidavit is false or misleading or that the affiant intentionally or with reckless disregard for the truth made such statements, the defendant is not entitled to an evidentiary hearing under Franks.

The Court further finds that based on the totality of the circumstances, the information provided in support of the search warrant was sufficient to constitute probable cause. The information provided by the CI was corroborated by surveillance and investigation conducted by the Special Operations Group for both the September 14, 2008 narcotics purchase and the October 18, 2008 trip to Staten Island, New York. Such corroboration supported the basis for the confidential informant's knowledge and credibility. . .

The matter thereafter proceeded to trial where, as noted, defendant was convicted on each charge in the indictment. This appeal followed.

II.

We turn first to defendant's argument that the judge erred in denying his motion to disclose the cell phone number of the CI. Defendant stated that he wanted the information to "try to establish a falsehood" in Sgro's affidavit. Defendant's argument is unpersuasive.

N.J.R.E. 516 permits the State to refuse to disclose as privileged the identity of a confidential informant. State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003). Evidence of the informant's identity is inadmissible unless the trial judge determines that the identity of the informant is essential to a fair determination of the issues. Ibid. Courts have required disclosure when the informant was directly involved or played an integral role in the crime for which the defendant has been indicted. State v. Milligan, 71 N.J. 373, 386-87 (1976). "On the other hand, absent a strong showing of need, courts generally deny disclosure where the informant plays only a marginal role, such as providing information or tips to the police or participating in the preliminary stage of a criminal investigation." Id. at 387.

Notwithstanding defendant's assertions to the contrary, disclosure of the CI's phone number even if partially redacted would inevitably have revealed the identity of the CI. Defendant made no strong showing of need for this information, and the CI's role with respect to the charges in the indictment was marginal, given that defendant was not charged with an offense arising from the CI's alleged "controlled buy" of marijuana from defendant. Rather, the indictment involved cocaine and marijuana charges based on the evidence seized pursuant to the search warrant. Thus, the informant was tangential to the specific charges on which defendant was indicted. We conclude that defendant failed to make a strong showing of how disclosure would be helpful to his defense of the charges in the indictment. See, e.g., State v. Burnett, 42 N.J. 377 (1964) (rejecting disclosure in support of a defendant's motion to suppress evidence obtained under a challenged warrant).

Turning to defendant's motion to suppress and for a hearing under Franks, we are also unpersuaded by defendant's arguments. In Franks, the Supreme Court held,

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

[Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]

Defendant argues that he made a substantial showing that Sgro lied in the search warrant affidavit because he had obtained affidavits from thirteen of fifteen individuals who spoke to him on his cell phone during the relevant time period denying any discussion of CDS.

We agree with the judge that these affidavits do not give rise to a substantial showing of "perjury" by law enforcement. State v. Howery, 80 N.J. 563 (1979), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Two of the fifteen individuals provided no affidavit, and, as the judge found, the other thirteen were put in an impossible situation: either lie or admit being a CI. Accordingly, defendant fails to satisfy the threshold issue -- that a false statement was included in an affidavit to obtain a warrant. There was, therefore, no basis to either request or hold a Franks hearing.

We next consider defendant's argument that the State's expert at trial, Detective Kenneth Hess, made inappropriate references to "redistribution" of CDS and thus misled the jury by giving the impression that the case was about defendant selling CDS. Defendant adds that the prosecutor's summation "compounded" the problem when he stated, in part:

And inside the house, [where] he lived alone, what was found? . . . 101 individual[ly] wrapped bags of cocaine. . . Does it make sense to you that somebody that was going to just use, personal use, would take the time and expend the energy to do this? Does that make sense to you? And you heard Detective Hess testify. It's worth a lot more money when it's broken down like this . . . .

Hess had been called to testify by the State and was proffered and accepted by the court as an expert in "the methods and practices utilized by individuals who engage in the possession of controlled dangerous substances with the intent to distribute them to others[.]" He was given a hypothetical consistent with the facts, and opined that the CDS was possessed with the intent to distribute. He also testified about methods of packaging and sale of CDS and street values of CDS.

Expert testimony is admissible where the subject matter at issue may not be sufficiently familiar to the average juror or where it would "assist the [jurors] to understand the evidence or to determine a fact in issue[.]" State v. Berry, 140 N.J. 280, 289 (1995) (quoting N.J.R.E. 702). The requirement that expert testimony "assist the [jurors]" has been interpreted broadly to encompass testimony helpful to their understanding of the evidence presented. Id. at 290-91. The admissibility of expert testimony does not depend on "'whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield Packing Corp. 4 N.J. 135, 141-42 (1950)). Expert opinion testimony is permissible even where it embraces the ultimate issue to be determined by the jury, so long as the testimony does not express an "'opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of [the expert's] specialized knowledge[.]'" State v. Summers, 176 N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 79 (1989)); N.J.R.E. 704. The admissibility of such testimony rests in the sound discretion of the trial court. Summers, supra, 176 N.J. at 312.

Expert testimony about drug-trade practices is generally admissible because "such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror." State v. Reeds, 197 N.J. 280, 290 (2009); Odom, supra, 116 N.J. at 76. A narcotics expert is permitted to assist the jurors to understand how the defendant's statements or actions could be indicative of possession of CDS with intent to distribute. State v. Nesbitt, 185 N.J. 504, 515 (2006); Berry, supra, 140 N.J. at 301-02. However, the expert is not permitted to opine about the ultimate issue of the defendant's guilt. Reeds, supra, 197 N.J. at 285.

Detective Hess did not opine as to whether defendant was guilty of any of the drug charges, as did the State's narcotics experts in Reeds, supra, 197 N.J. at 287, a case on which defendant relies. His testimony did not usurp the jury's function to determine the ultimate issue of defendant's guilt on any charge, nor did it in any way suggest that defendant was guilty. Further, there was other overwhelming evidence of defendant's guilt, including the quantity of the marijuana and cocaine found in defendant's car and home, respectively, along with the digital scale, baggies, and cash. Accordingly, no error, let alone plain error, occurred as a result of Detective Hess's testimony.

Finally, we address defendant's argument that the State did not timely file its motion to impose an extended term of imprisonment under N.J.S.A. 2C:43-6(f) and Rule 3:21-4(e). The jury found defendant guilty of the offenses on June 26, 2012, and the State filed its motion with the trial judge thirteen days later on July 9, 2012. The judge marked the motion "received" on that date. A data entry clerk thereafter returned from vacation and entered the motion in the computer system on July 13. Rule 3:21-4(e) requires such motion to be "filed with the court" within fourteen days of the return of the verdict. The prosecutor's motion was timely under Rule 3:21-4(e).

The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

2 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).