Annotate this Case













a/k/a DONNEL RIVERA, a/k/a




December 23, 2014


Submitted September 30, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-02-0212.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).


Defendant Felipe Rivera appeals from his conviction, after a jury trial, of one count of possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1), and his sentence of five years, with a parole bar of two-and-a-half years. Defendant was acquitted of possession of CDS, heroin, with the intent to distribute. N.J.S.A. 2C:35-5(a)(1), 5(b)(3).1

Defendant argues that the court erred in curtailing his cross-examination of two police witnesses; the prosecutor committed misconduct in his summation; and his sentence was excessive. Having reviewed defendant's arguments in light of the record and applicable law, we affirm.


The State presented its case through the testimony of two former Paterson police officers, Jason English and Salvatore Macolino. The two officers were on patrol in separate vehicles with their respective partners, Chad Phillips and Christopher Scudieri, on the morning of July 23, 2008. English and Phillips were in plain clothes in an unmarked police vehicle.

At 7:47 a.m., while he was traveling on Carroll Street, approaching the intersection with Harrison Street, English noted the presence of defendant. A male juvenile, T.M., soon approached defendant. From a distance of about fifty feet, English observed defendant pass a small white object to T.M. English did not observe any currency change hands and no currency was found on either man.

English stopped the vehicle, and he and Phillips approached defendant on foot. English observed defendant throw an object to the ground that appeared similar in size and color to the one he had passed to T.M. Although English conceded on cross-examination that his report stated only that Phillips observed defendant discard the item, English insisted that he observed it as well, while he and his partner were roughly five feet away from defendant. Phillips retrieved the discarded item. It consisted of nineteen glassine envelopes of heroin, all stamped "The Cure."2 Defendant was placed under arrest.

Macolino and Scudieri were following behind English and Phillips in a marked patrol car. English testified that Phillips radioed to the Macolino-Scudieri vehicle as they were pulling up behind the English-Phillips vehicle. Macolino testified that from a distance of fifty to seventy-five feet, he observed defendant hand T.M. a small white block-type object, measuring about a cubic inch. No other persons were nearby. Macolino observed T.M. discard the object as the officers approached him. The object consisted of eleven glassine envelopes of heroin, all marked "The Cure." T.M. was placed under arrest.

T.M. was the sole defense witness. By the time of the trial, T.M. was an adult. He denied that he engaged in a transaction with defendant. He said that he was walking down Carroll Street, about fifteen feet from defendant, who was walking toward him, when the police stopped him and defendant. T.M. admitted that he possessed eleven glassine envelopes of heroin, but insisted they were still on his person when he was arrested. He said that he received the heroin from someone other than defendant. T.M. testified that he intended to sell the heroin. The police found additional bags of heroin under a car. T.M. also testified that "The Cure" was a commonly used name for heroin sold in Paterson at the time.

English and Macolino both testified that they were laid off as part of a large-scale layoff of over 100 officers because of municipal budget problems. The layoffs occurred in 2011, and were based on seniority. English had been employed for two years, and Macolino less than that. At the time of the trial in February 2012, Macolino was employed as a police officer in Clifton. English was still searching for a job in law enforcement. Both officers denied they were terminated for any reason other than a budget-related layoff.

During jury selection, defense counsel advised the court that he had just learned, while he "trolled on the Internet," that a federal civil rights action under 42 U.S.C.A. 1983 had been filed naming the four officers involved in the arrest of defendant and T.M.3 Defense counsel provided notice to the court and the prosecutor that he intended to question English and Macolino about the action. He argued that the pendency of the federal law suit was relevant to the officers' credibility. He proposed to establish only that the civil rights actions existed. "I want to ask them questions as to credibility issues. I don't want to go into heavy detail, I just want to say, hey, you have this [lawsuit pending against you]; leave him alone, the next guy, hey, you have this, and go from there."

Counsel provided no details of the allegations, nor did he provide a copy of the complaint to the court. Counsel did not indicate whether other officers or officials were named. Defense counsel also stated that he wanted to view the personnel files of English and Macolino, apparently to ascertain whether the civil rights action was related to their layoff.

In response to the State's objection, Judge Salem Vincent Ahto ruled that defense counsel had failed to present sufficient grounds to question the officers about the 1983 action. The court also ruled that the request for personnel files of the testifying officers was untimely. The court reasoned that defense counsel had failed to demonstrate that the mere filing of the civil rights complaint was relevant to an assessment of the officers' credibility. Additionally, introduction of the fact of the complaint would prejudice the State by creating the impression, without sufficient basis, that the officers engaged in wrongdoing, which led to their separation from the police force.

The court contrasted defense counsel's proffer with a case in which a defendant was himself suing the witnesses, which would raise questions about the witnesses' impartiality. Distinguishing State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001), the trial court here also noted that there was no evidence that the officers faced charges, which a defendant might argue created an incentive to curry favor with the State. The court also found that defendant had failed to satisfy the requirements under State v. Cofield, 127 N.J. 328 (1992), for using the civil rights actions as evidence of other crimes or wrongs under N.J.R.E. 404(b).

The court invited defense counsel to renew his request upon a more detailed showing.

At this point, I'm not going to permit it, just because there's a pending action. That gives you plenty of time to contact the attorneys in the cases and find out what they're talking about, and if you have something, come to me, I'll hear what you have to say.

Defense counsel renewed his request during the cross-examination of English and Macolino, but presented no new information in support. Noting the absence of additional details, the court affirmed its prior ruling.

During the prosecutor's opening and closing statements, he referred to the State's burden of proof. Without objection, he stated in his opening that the jury had to answer the question, "Do you remain firmly convinced at the end of this case that the State has proven each and every element of the offense charged?" In his closing, he likewise told the jury to ask itself, "Do you remain firmly convinced at the end of this case that State has met its burden?"

After his conviction, defendant was sentenced by Judge Donald J. Volkert, Jr. The court denied the State's motion to sentence defendant to a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3, although it was undisputed that defendant's prior record satisfied the statutory prerequisites.

However, Judge Volkert found, by clear and convincing evidence, that aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), -1(a)(6), and 1-(a)(9), substantially outweighed non-existent mitigating factors. In support of the court's findings, the court noted defendant's extensive prior record, which included three prior indictable convictions, multiple municipal court convictions associated with drug use, multiple arrests including a pending robbery charge, and an extensive juvenile record that included six violations of probation. Defendant also had a history of untreated substance abuse. He also had no significant employment history, and owed substantial child support arrears for his two children.

Although defense counsel argued for a three-year term of incarceration, he did not identify any specific mitigating factors. Defendant himself sought leniency and noted his desire to see his children.

As noted above, the court sentenced defendant to a five-year term of imprisonment with a two-and-a-half-year period of parole ineligibility.

On appeal, defendant presents the following issues for our consideration









We apply a deferential standard of review to a trial court's order regarding the scope of cross-examination. The court exercises "reasonable control over the mode and order of interrogating witnesses." N.J.R.E.611(a). "[T]he precise parameters of cross-examination are . . . left to the trial court's discretion . . . ." State v. Simon Family Enters., 367 N.J. Super.242, 257 (App. Div. 2004). An appellate court applies an abuse-of-discretion standard of review. Ibid. "We will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super.559, 583 (App. Div.) (internal quotation marks and citation omitted), certif. denied, 185 N.J.297 (2005).

The importance of cross-examination is unquestioned. See, e.g., State v. Castagna, 187 N.J.293, 309 (2006) (noting that cross-examination is "the greatest legal engine ever invented for the discovery of truth") (internal quotation marks and citation omitted). Cross-examination is one of the key elements of a defendant's constitutional right of confrontation. Ibid. In particular, exposing a witness's motivation, partiality or bias, is an important function of cross-examination. Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353-54 (1974).

However, "the right of confrontation is not absolute." Castagna, supra, 187 309. "Thus, trial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" State v. Budis, 125 N.J.519, 532 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)); see alsoState v. Engel, 249 N.J. Super.336, 375 (App. Div.) (stating that "a cross-examiner does not have a license to roam at will under the guise of impeaching credibility"), certif. denied, 130 N.J.393 (1991).

Our Rules of Evidence also set boundaries for the presentation of evidence in cross-examination. The scope of cross-examination "should be limited to the subject of the direct examination and matters affecting the credibility of the witness." N.J.R.E.611(b). The court's exercise of its authority under N.J.R.E.611 is closely related to its authority under N.J.R.E.403 to exclude evidence whose "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."

Defendant argues that he was entitled to question English and Macolino about the federal civil rights lawsuits based on N.J.R.E.607, which states that "[e]xcept as otherwise provided by Rules 405 and 608, for the purpose of impairing . . . the credibility of a witness, any party . . . may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." We disagree. Defendant provided no substantive information to the trial court about the nature of the allegations in the civil rights action, the evidential support for them, or even the identity of all the parties in the suit. He failed to provide a copy of the complaint to the court, and none is in the record before us.4 The jury would have relied on nothing more than speculation about the connection between the allegations in the complaint and the officers' credibility. In short, defendant failed to demonstrate that the mere fact of the lawsuit was relevant to the officers' credibility. SeeN.J.R.E.401 (defining "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action").

Defendant also misplaces reliance on Parsons. In that case, we held that the concealment of evidence to impeach a police officer violated defendant's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by leading him to plead guilty when he otherwise might have gone to trial. Parsons, supra, 341 N.J. 457-58. The concealed evidence pertained to the fact that the key police witness against the defendant was under investigation for wrongdoing. Ibid. We recognized that had the defendant gone to trial, he would have been able to attack the officer's credibility. 458. The ongoing investigation was relevant to show that the State may have had a "'hold' of some kind over [the] witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." Parsons, supra, 341 N.J. 458. Cf.State v. Harris, 316 N.J. Super.384, 388, 399-400 (App. Div. 1998) (reversing conviction where defendant denied access to information for use in cross-examination of principal police witness against him who was suspended from the force for suspected drug use, in conjunction with police department investigation of shakedowns by narcotics officers).

No such particularized evidence was presented to the court in this case. There is no basis in the proffer defense counsel presented for a juror to conclude that English or Macolino had an incentive to curry favor with the prosecution. Nor is this a case where there is evidence that an officer presented false testimony in the past in a similar case, which arguably is admissible under N.J.R.E.608(b) (stating that a criminal trial witness's credibility "may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime which defendant is charged" if the court finds after a N.J.R.E.104 hearing, the prior false statement was made knowingly).

In sum, we discern no error in Judge Ahto's decision to preclude cross-examination of the two officers based on the filing of civil rights complaints.


We discern no merit to defendant's argument that the prosecutor's explanation of the State's evidentiary burden, to which defendant did not object, constituted plain error, warranting a reversal. Defendant argues that the prosecutor implied that defendant had the burden to disprove his guilt by using the word "remain" in two isolated sentences in his opening and closing statement: "Do you remain firmly convinced at the end of this case that the State has proven each and every element of the offense charged?" And, "Do you remain firmly convinced at the end of this case the State has met its burden?"

We are unpersuaded. The sentence was presented in the context of the prosecutor's clear articulation of the State's burden to prove each element of the offense; that the burden never shifts to the defendant, who was presumed innocent. In view of the context of the prosecutor's statement, and the trial judge's warning that only his instructions on the law governed, the prosecutor's statement was not "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Williams, 168 N.J. 323, 336 (2001) (stating that "[t]he possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'") (quoting State v. Macon, 57 N.J. 325, 336 (1971)).


Finally, we find no error in the court's exercise of its sentencing authority. "When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, we must affirm the sentence and not second-guess the sentencing court, provided that the sentence does not shock the judicial conscience." State v. Case, ___ N.J. ___, ___ (2014) (internal quotation marks and citations omitted). The judge's findings here regarding aggravating factors were based on competent and credible evidence in the record, including defendant's record of untreated substance abuse, three prior indictable convictions, multiple municipal court convictions, and an extensive juvenile record that included repeated probation violations. The court also appropriately found that no mitigating factors counter-balanced the aggravating factors. Moreover, defendant presented none at sentencing. We find insufficient evidence in the record to have compelled a finding, as defendant now argues, of mitigating factors. On appeal, he argues that the court should have found mitigating factors one, N.J.S.A. 2C:44-1(b)(1) ("[t]he defendant's conduct neither caused nor threatened serious harm"); two, N.J.S.A. 2C:44-1(b)(2) ("[t]he defendant did not contemplate that his conduct would cause or threaten serious harm"); four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"); and eleven, N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents").

We have rejected the notion that drug possession is a crime that does not cause harm, and it is implausible that defendant, who had a history of substance abuse, was unaware that drug possession is harmful. See State v. Rivera, 253 N.J. Super. 598, 606 (App. Div.), certif. denied, 130 N.J. 12 (1992), abrogated on other grounds by State v. R.B., 183 N.J. 308, 332 (2005). Defendant's substance abuse also did not excuse or justify his offense, which was the unlawful possession of drugs. See State v. Ghertler, 114 N.J. 383, 390 (1989) (rejecting drug dependency as a mitigating factor). Finally, defendant failed to establish that his separation from his children would cause "excessive" hardship.

We therefore conclude that the sentence was not manifestly excessive, nor a mistaken exercise of the sentencing discretion; it conformed to sentencing guidelines; and should not be disturbed. SeeState v. Pierce, 188 N.J.155, 169-70 (2006); State v. O'Donnell, 117 N.J.210, 215-16 (1989); State v. Roth, 95 N.J.334, 363-65 (1984).


1 Defendant's February 2009 indictment also included a school zone offense, N.J.S.A. 2C:35-7 and -5(a), but the State did not present the count to the jury. Apparently, no formal order of dismissal was entered.

2 The State and the defense later entered a stipulation that a State Laboratory forensic scientist would have testified that the items recovered from defendant and T.M. each consisted of .02 grams of heroin. The stipulation also covered chain of custody.

3 The record is unclear whether defense counsel discovered one, or multiple 1983 actions. We will assume that a single multi-defendant case was filed.

4 See R. 1:7-3 (stating that an attorney "may, out of the hearing of the jury . . . make a specific offer of what is expected to be proved by the answer of the witness" to a question about which an objection is sustained); Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:7-3 (2014) (noting that "counsel who does not choose to make the proffer may be foreclosed on appeal from raising the question of the prejudicial effect of the exclusionary ruling unless the record or context of the excluded questions clearly suggests what was expected to be proved by the excluded evidence").