STATE OF NEW JERSEY v. DAVID L. GASKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1157-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID L. GASKINS,

Defendant-Appellant.

_________________________________

April 26, 2016

Submitted April 4, 2016 Decided

Before Judges Fasciale, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 09-06-0258.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1) and (b)(2); third-degree conspiracy to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:5-2 and 2C:35-7; second-degree conspiracy to distribute cocaine within 500 feet of a public building, N.J.S.A. 2C:5-2 and 2C:35-7.1; second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and 2C:35-7; and second-degree possession of cocaine with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-5(a) and 2C:35-7.1. We affirm.

Based on information from two confidential informants, the police investigated defendant, who was believed to be a heroin and crack cocaine distributor. They learned defendant stayed in an apartment in Newton with others at which drugs were sold. After conducting controlled buys and surveillance, the police obtained a no-knock search warrant for the apartment, the residents of the apartment, any bags or backpacks in defendant's possession, and a gold Nissan Altima. The police executed the search warrant, handcuffed defendant and others, and with the use of a K-9 officer, discovered more than 419 bags of cocaine in addition to containers with hidden compartments used to store the drugs.

The State introduced testimony that defendant supplied individuals in the apartment with cocaine and heroin for sale. Defendant set the price of the cocaine per bag, and he would return to the apartment daily to collect the proceeds. Defendant would also stay at another residence in Paterson. The State introduced evidence seized during a search of an apartment in Paterson, along with defendant's related drug charges, to establish he constructively possessed the drugs from the Newton apartment.

On appeal, defendant raises the following arguments

Point I

The trial court erred in denying defendant's motions for production of the personnel file of an investigating police officer and for production of the training manual of the New Jersey State Police Canine Academy.

Point II

The trial court erred in admitting improper other crimes or wrongs evidence that deprived defendant of a fair trial below.

Point III

The trial court erred in denying defendant's motion to reveal confidential informants.

Point IV

The trial court erred in denying defendant's motion to suppress evidence seized by police.

Point V

Defendant's confrontation rights were infringed by introduction of hearsay before the jury.

Point VI

The trial court erred in denying defendant's motion for acquittal or for new trial.

Point VII

The trial court erred in not declaring a mistrial below.

Point VIII

The trial court erred in refusing to give the jury an adverse inference charge.

Point IX

Defendant's sentence is improper and excessive.

I.

Defendant contends that the court erred by denying his motions for discovery of disciplinary records of an officer and a K-9 training manual. He argues that he was entitled to the disciplinary records because the misconduct of the officer implicated the truthfulness of his testimony and affected the credibility of the State's case. He contends further the training manual was needed to challenge the reliability of the dog's performance during the search.

When defendant moved for discovery of disciplinary actions involving Officer Neal Casey, one of the officers involved in the search, the State responded that Casey was no longer employed by the Newton Police Department, it did not intend to call him as a witness even though he had been "involved in the investigation of this case," and no disciplinary charge against him was related to the investigation. The judge denied the motion on the grounds that such records were confidential, defendant's right of confrontation applied only to testifying witnesses, and the State was not going to call the officer as a witness or proffer his report about the search.

When defendant sought discovery of the training manual and the training records of the dog and its handler, the State responded by providing certificates indicating they completed all required training, in addition to training reports for their performance on detection tests. The court denied the motion for further discovery by explaining that defendant first had to present an expert, which defendant did not do.

We review a trial judge's discovery rulings for abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009) (citation omitted), aff d, 201 N.J. 229 (2010). "[A]lthough defendants are entitled to broad discovery under Rule 3:13-3," a judge should not allow a defendant to embark on a "fishing expedition." Ibid. The information sought must be relevant, State v. Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000), and not "otherwise excludable by a rule of law." State v. Darby, 174 N.J. 509, 519 (2002) (quoting State v. G.V., 162 N.J. 252, 272-73 (2000) (Coleman, J., concurring in part and dissenting in part)).

As to the disciplinary records, "the right of confrontation requires disclosure where a defendant advances some factual predicate making it reasonably likely that information in the file could affect the officer's credibility." State v. Harris, 316 N.J. Super. 384, 387 (App. Div. 1998). In Harris, the charges against the defendant included his assault of a police officer while resisting arrest. Ibid. The defendant denied the assault and use of force, in an account that sharply differed from the officer's, and also included accounts of prior harassment by the same officer, sometimes involving force. Id. at 390-93.

We explained that disclosure of police personnel records is warranted "where they may reveal prior bad acts that bear 'peculiar relevance' to the issues at trial." Id. at 398. The chief example was a charge of assault on a police officer, to which the defendant's allegations of excessive use of force in effecting the arrest would be relevant. Ibid. "[P]arts of the officer's personnel history may be relevant to the officer's credibility or to the defendant's claim of self-defense." Ibid.

However, we emphasized that the defendant has the "burden of advancing some factual predicate that would make it reasonably likely that the information in the file could affect the [officer's] credibility." Id. at 399 (concluding the defendant had ample predicates, crowned by the officer's suspension for personal drug use, "shak[ing the] defendant down," and planting drugs on the defendant's friend).

In Harris, we cited out-of-state cases in which the courts allowed in camera inspection of an officer's personnel file based on the defendant's "mere allegations of the officer's improper conduct." Ibid. In each of those cases, the defendant was charged with assaulting an officer, the officer testified at trial, and the defendant's factual predicate came from prior instances of the officer's alleged use of excessive force.1

Here, the officer did not testify, his role during the search was not unique, and he apparently had no part in the chain of custody of the seized evidence. He was the officer who discovered an empty false-bottomed Doritos container in the bedroom. However, defendant did not allege that the officer handled any item in which drugs were found. Moreover, defendant has not alleged that the officer engaged in any misconduct related to this case. The tenuous relevance of the unproven disciplinary charge to the search, coupled with the State's manifest lack of need for that officer's testimony, demonstrate that the withholding of the officer's personnel records did not violate defendant's right to confrontation, and we conclude the judge did not abuse his discretion by denying that part of defendant's motion to produce.

As to the K-9 training manual, defendant cites United States v. Thomas, 726 F.3d 1086 (9th Cir. 2013), cert. denied, __ U.S. __, 134 S. Ct. 2154, 188 L. Ed. 2d 1139 (2014). In that case, the defendant drove his pickup truck through a United States Border Patrol highway checkpoint "primary inspection" area, at which a K-9 officer and his dog were stationed. The dog exhibited alerting behavior, which prompted other agents to direct the driver to park at a "secondary inspection" area. Id. at 1087-88. The dog continued to exhibit alerting behavior, particularly near the gas tank and a toolbox in the truck bed. Ibid. The K 9 officer then got the key to the toolbox from the driver, opened it, and found bundles of marijuana. Id. at 1088. The defendant was arrested and convicted of possessing the marijuana with intent to distribute. Ibid.

The Ninth Circuit related that the diversion of the defendant's truck for a secondary inspection required only "a minimal showing of suspicion," but that a search of the vehicle required probable cause, such as an alert by a "reliable" drug-detection dog. Id. at 1095-96. It then explained that the Federal Rules of Criminal Procedure and federal case law required discovery of the handler's log, training records, scoring sheets, certifications, and training standards and manuals for the dog "when the government seeks to rely on a dog alert as the evidentiary basis for its search." Id. at 1096.

Thomas addressed the standards of due process for a suppression hearing when an alert by a drug-detection dog was the sole basis of probable cause for the search. In this case, the probable cause for the search was the information developed through confidential informants, before any involvement of a K-9 team. We conclude the judge did not abuse his discretion by denying discovery of the training manual given that the drug-detection dog's role was very limited, as the officers already had a warrant supported by probable cause, and merely used the dog to execute the warrant, which permitted a search of the entire apartment.

II.

We reject defendant's contention that the court erred by admitting evidence of his other crimes. The court observed the packaging of the drugs in plastic bags, along with "the paraphernalia" of commercial food containers with hidden compartments such as false bottoms, were evidence that the drugs were possessed with an intent to distribute. The judge found that the bags in Paterson containing drugs were similar to the bags here.

In accordance with that ruling, the jury heard a stipulation about a November 2007 discovery of keys on defendant's person that opened locks in a bedroom closet of the Paterson apartment, in which the police found quantities of loose cocaine and numerous plastic bags containing packaged drugs. The stipulation added that the bedroom itself contained a box of plastic bags and a shopping bag with additional plastic bags, while another bedroom had a hat with plastic bags of cocaine inside.

Right after the stipulation was read to the jury, the judge gave a limiting instruction about defendant's prior possession of "cocaine and drug paraphernalia." He referenced "what happened in Paterson" without alluding to a search or to police involvement, and without specifically calling defendant's possession a crime or offense. The judge instructed the jury to consider the evidence from the Paterson events only for the limited purpose of determining "whether the defendant intended to exercise dominion and control over the cocaine that . . . was allegedly found in the apartment" in this case. More specifically, the jury could consider that evidence in determining whether defendant "knew of the presence of cocaine in either of the two containers . . . allegedly found in the apartment in Newton," and "whether he had the intent to exercise dominion and control over that cocaine." The judge explained that those determinations were "relevant to the issue of whether he individually or jointly constructively possessed that cocaine." The jury could use the stipulation to determine whether defendant's presence in the Newton apartment at the time of the search "was an accident or mistake on his part," but not "to determine that the defendant had a predisposition to commit crimes or that he[ is] simply a bad person." The judge repeated those instructions in the final jury charge.

Our Supreme Court has specified that abuse of discretion applies to the question of whether evidence of prior offenses was properly admitted or excluded. State v. Marrero, 148 N.J. 469, 483-84 (1997).

The criminal offense of possession with intent to distribute can be based on constructive possession. N.J.S.A. 2C:35-5(a); State v. Pleasant, 313 N.J. Super. 325, 331-32 (App. Div. 1998), aff'd o.b., 158 N.J. 149 (1999). Constructive possession of an item may be found when "the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 237 (2004). The jury has the right to draw inferences "from all of the surrounding circumstances . . . and to consider them in their totality" to find a defendant guilty of constructive possession beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 599 (1979). Furthermore, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true," and "the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference" that the defendant is guilty beyond a reasonable doubt of constructive possession. Id. at 592.

Evidence of "other crimes, wrongs, or acts" may not be admitted as proof of a disposition to engage in the kind of conduct for which the defendant is on trial. N.J.R.E. 404(b). However, it may be admitted for limited purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

Such evidence can be "inflammatory," so the trial court must make "a careful and pragmatic evaluation . . . based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice." State v. Cofield, 127 N.J. 328, 334 (1992) (quoting State v. Stevens, 115 N.J. 289, 303 (1989)).

In order to admit other-crimes evidence under N.J.R.E. 404(b), the other crime must be: (1) relevant to a material issue; (2) similar in kind to the charged offense and reasonably close in time; (3) clearly and convincingly established; and (4) of sufficient probative value to outweigh its potential for prejudice. Id. at 338.

The Cofield analysis starts with the presumption that other-crimes evidence is to be excluded rather than included, given that the burden falls on the party seeking to admit such evidence. State v. Reddish, 181 N.J. 553, 608-09 (2005). The risk of prejudice from such evidence only has to "outweigh" its probative value in order to compel its exclusion; the risk does not have to "substantially outweigh[]" the probative value as is required under the general standard of N.J.R.E. 403 for excluding relevant evidence. Id. at 608.

"An important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue." State v. Oliver, 133 N.J. 141, 151 (1993). If that other evidence is "equally probative" as the other-crimes evidence while being "less prejudicial," that makes the other-crime evidence inadmissible. State v. Castagna, 400 N.J. Super. 164, 181 (App. Div. 2008).

The admission of other-crime evidence under Cofield is nonetheless within the trial court's discretion. State v. Covell, 157 N.J. 554, 564 (1999). This court should reverse "[o]nly where there is a 'clear error of judgment'" in the trial court's balancing of the four Cofield factors. Marrero, supra, 148 N.J. at 483. In particular, a decision to admit other-crimes evidence "should not be upset unless 'the danger of undue prejudice . . . outweigh[s] probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Id. at 490 (quoting State v. Moore, 122 N.J. 420, 467 (1991)).

When such evidence is admissible, its "inherently prejudicial nature" compels a jury instruction that is "formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Cofield, supra, 127 N.J. at 341 (quoting Stevens, supra, 115 N.J. at 304, 309).

Here, the first and third prongs were clearly satisfied. The prior offense of possession with intent to distribute was relevant to the material issues of possession and intent, and it was manifestly established by defendant's conviction for it.

The second prong, similarity in kind to the charged offense and reasonable proximity in time, is not required by N.J.R.E. 404(b) itself, and "[i]ts usefulness as a requirement is limited to cases that replicate the circumstances in Cofield." State v. Williams, 190 N.J. 114, 131 (2007). Those circumstances were the State's proffer of the defendant's constructive possession of drugs in an incident that occurred after the conduct for which he was being prosecuted, in order to prove possession of the drugs in those offenses. Ibid.

When the evidence of other offenses is "relevant only to the defendant's state of mind," the second prong does not apply. State v. Barden, 195 N.J. 375, 389 (2008) (citing Williams, supra, 190 N.J. at 131). This is intuitive because in a situation like Cofield, in which the State was seeking to use the other crime to prove possession of those same drugs, the temporal proximity and type of crime is important, whereas if the State is seeking to use the other offense to prove a defendant's mindset, temporal proximity is not as important because it is not linked to one specific piece of evidence.

The fourth prong, the balance of probative value against prejudice, "requires a careful weighing of competing interests." Id. at 392. Although that standard is "stringent," our courts nonetheless "have not frequently excluded highly prejudicial evidence under the fourth prong of Cofield." State v. Long, 173 N.J. 138, 162 (2002). More specifically, "motive evidence has been treated differently by our courts even under a Rule 404(b) analysis," ibid., and our courts "generally admit a wider range of evidence when the motive or intent of the accused is material." Covell, supra, 157 N.J. at 565. "That includes evidentiary circumstances that 'tend to shed light' on a defendant's motive and intent or which 'tend fairly to explain his actions,' even though they may have occurred before the commission of the offense." Ibid. (quoting State v. Rogers, 19 N.J. 218, 228 (1955)). Thus, our courts "require a very strong showing of prejudice to justify exclusion" of evidence of motive or intent. Id. at 570.

The fourth prong's balancing test also requires the court to consider whether there is available evidence that would be less prejudicial, yet still effectively support the inference for which the prior offense was proffered. Barden, supra, 195 N.J. at 392; Long, supra, 173 N.J. at 164. If there is no other evidence of motive, then the prior offense has high probative value, which outweighs the prejudice from its inherent nature. Long, supra, 173 N.J. at 164-65.

Here, the circumstances of the prior offense were sufficiently reminiscent to those of the charged offenses to make an inference of an intent to distribute here "more logical," Covell, supra, 157 N.J. at 565, and defendant's brief legal argument does not dispute that the evidence of defendant's prior offense had such probative value. The stipulation related only the details needed to describe the prior offense, and neither the stipulation nor the limiting instruction called it a crime. Finally, this case was not replete with evidence of intent, as the only additional proof was from another resident of the apartment, whose credibility to the jury could not be presumed given her own substantial involvement in the drug-related activity in the apartment.

The admission of evidence of a prior offense requires a careful limiting instruction that clearly delineates the permissible uses of the evidence and ensures that the jury will not stray from them. Barden, supra, 195 N.J. at 394; State v. Hernandez, 170 N.J. 106, 131 (2001). The instruction here was clear, thorough, and emphatic, and defendant has not alleged that it was deficient in any respect.

III.

Defendant claims that the court erred by denying his motion to disclose the confidential informants' identities. He argues that the informants were the only witnesses to the controlled drug buys, which in turn were the only basis of probable cause to search the apartment. Defendant maintains the only way he could challenge the search warrant here was to question the informants.

The court noted the charges against defendant did not include his alleged participation in the controlled buys, and that neither informant was involved in the conduct for which defendant was indicted. Furthermore, the search warrant was based entirely on the officer's affidavit, with no submission or testimony from the informants. The information that the informants supposedly gave the police had to be "evaluated in the context of the totality of the circumstances that are outlined in the affidavit," and the court did not determine the circumstances justified disclosure of the informants' identities.

The identity of someone "who has furnished information purporting to disclose a violation of a provision of" state or federal law to a representative of any state or federal "governmental division" is privileged and inadmissible, "unless the judge finds that . . . disclosure of his identity is essential to assure a fair determination of the issues." N.J.S.A. 2A:84A-28. This statute has been incorporated into N.J.R.E. 516.

In State v. Burnett, 42 N.J. 377, 380-88 (1964), the Court engaged in a thorough discussion of the societal interest in facilitating disclosure of criminal activity, the nature of probable cause, a defendant's interest in the identity of an informant who provided a basis for probable cause, and a defendant's interest in the identity of an informant who participated in the criminal activity for which the defendant was being tried. The Court then concluded "it is reasonable and consistent with the purpose and the effective enforcement of the Fourth Amendment to deny disclosure of [an] informer upon a challenge to the existence of probable cause." Id. at 388.

The Court observed that probable cause for a search was not based on "whether the information which reached the officer was true or false," but rather "whether the officer was reasonable in accepting the information as true." Id. at 387. The officer was accordingly not restricted to considering only "evidence admissible in the courtroom." Ibid. The Court then explained that judicial review of the existence of probable cause would suffice to ensure that the police accurately related the informant's information, because judges would have the authority to "require that the informant be identified or even produced" if the determination of probable cause cannot be made without that information. Id. at 388-89.

The Court also observed that the policy considerations are entirely different when the informant participates in the criminal activity for which the defendant is tried. Id. at 386. In that case, the priority is no longer protecting the informant's confidentiality in order to facilitate investigation, but rather obtaining "a truthful verdict," which "outweighs society's need for the informer privilege." Ibid. See also State v. Zenquis, 251 N.J. Super. 358, 368 (App. Div. 1991), aff'd, 131 N.J. 84 (1993). There were no grounds for disclosing the informants' identities here.

IV.

Defendant asserts the court erred by denying his motion to suppress the evidence obtained in the apartment search. He argues that the court improperly found probable cause for the search warrant because it did not review the recordings of the controlled buys to confirm their occurrence, and relied instead on the supporting affidavit of an officer who did not witness them, had never even seen defendant, and did not independently confirm any other element of the informants' information.

At the suppression hearing, the court noted that the information from a confidential informant required some confirmation, which prompted the State to represent that prior police reports confirmed that two of the individuals lived in the apartment, and that both had criminal histories that involved drugs. The State further represented that the informants accurately predicted future events cited in the affidavit, namely, periodic trips to and from the apartment's location by a particular vehicle.

The judge explained the standard for establishing probable cause was "a well-grounded suspicion" of criminal activity, and that it was established here by the two controlled drug buys. He added that there was sufficient corroboration because the State was able to confirm the two individuals' residence in the apartment, their criminal histories, and the "comings and goings of the individuals in this particular series of transactions." He accordingly denied the motion to suppress.

As to the search warrant, on June 12, 2008, Detective Nicholas Elmo executed a search warrant affidavit. He represented that there was probable cause to believe that evidence of criminal activity was present in the Newton apartment, and in a gold Nissan Altima with a specified license plate number, all in the custody and control of Terry Johnson; John Moscaguiri; Kimberly LaPlaca; a female known as Natasha; and an unnamed man, "D," along with any backpack or book bag in his possession.

Elmo specified that a confidential informant, CI-1, told him that Moscaguiri and LaPlaca lived at the apartment, and that D had been staying there. CI 1 described D as a black male, approximately five feet nine inches tall and chubby, who always wore a "Jamaican" style hat.

CI-1 said that heroin and crack cocaine were sold at the apartment at all hours, with Moscaguiri and LaPlaca selling by day and D selling at night. Moscaguiri kept drugs in the bedroom, in a location that he did not let customers see, while D kept drugs in a book bag that he carried with him. The three of them did not like customers to use the front door, and they instructed CI-1 to use the building's rear entrance and come to the apartment through interior passages.

CI-1 added that D was picked up daily around 1 p.m. in the parking lot behind the apartment and driven to Paterson to buy drugs, at least 100 bags each of heroin and crack cocaine. The driver would return D around dinner time and then go to Paterson by himself. The driver's vehicle was a small gold car with a handicapped sticker.

Another confidential informant, CI-2, gave Elmo a largely similar account of drug dealing at the apartment occupied by Moscaguiri and LaPlaca, except for the description of the additional persons who also stayed there and sold drugs. One was a black woman, who CI-2 knew to be named Natasha. One of the men was black, six feet tall and 230 pounds, approximately thirty-five years old, and with hair braids that he always tucked into a big hat. The other man was black, tall and thin, approximately twenty-five years old, also with hair braids. The man with the hat carried a book bag that held a small black bag containing their heroin and crack cocaine. Every couple of days, one or two of those additional persons would drive to Paterson to buy drugs, using a vehicle that CI-2 never saw.

On June 10, 2008, in the afternoon, Elmo fitted CI-1 with a listening device and had him make a drug purchase at the apartment. CI-1 said that Moscaguiri was present but D had just left for Paterson. CI-1 made his purchase from a black female whom he called D's girlfriend. That same day, in the early evening, Elmo fitted CI-2 for a similar purchase, and CI-2 reported buying crack cocaine from Moscaguiri and Natasha, with LaPlaca also present.

On June 11, 2008, at 12:19 p.m., one of the officers conducting surveillance of the apartment saw the gold Altima park in the lot behind the apartment. A black male with a medium build and a "closely shaved haircut" exited, went into the building by the rear door, and returned at 12:27 p.m. with a black male described only as wearing "a Jamaican or
Rastafarian type hat." The first man got into the driver's seat of the car, while the man with the hat placed something in the trunk and then entered the passenger side, and they drove off.

That same day, at 6:35 p.m., another surveillance officer saw the gold Altima return to the parking lot behind the apartment. He saw a black man with "a Jamaican or Rastafarian type hat" exit from the passenger side, remove a red backpack from the trunk, and return to his seat. He spoke with the driver, and he appeared to remove something from the backpack and give it to the driver. The passenger went into the building, and the driver left.

Motor vehicle records showed that the license plate was registered to Mamie Johnson, at a Paterson address. A driver's license was issued to a Terry Johnson at the same address, but the surveillance officers could not identify him as the car's driver.

Elmo described his training and work in undercover narcotics investigations, and represented that the observations of the informants and the surveillance officers were similar to the activity of persons engaged in unlawful drug possession and distribution. He declared that those observations gave him probable cause to believe that heroin and cocaine for purposes of distribution were present in the apartment, in the gold Altima, and on the persons of Moscaguiri, LaPlaca, Natasha, Johnson, and D.

On June 12, 2008, the date of Elmo's affidavit, the judge issued a search warrant for property tending to show the commission of drug offenses. It covered the Newton apartment, the gold Altima, Moscaguiri, LaPlaca, Natasha, Johnson, and D, who was described as approximately six feet tall and 230 pounds and as having braids, as well as "any backpack or bag in his possession."

During pretrial motion arguments, the State admitted that nothing in the affidavit suggested that defendant was present when CI-1 or CI-2 made the controlled buys.

Police searches require a warrant, except in certain exceptional circumstances that did not exist here. State v. Sullivan, 169 N.J. 204, 210 (2001). A warrant may only be issued if the judge finds "probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched." Ibid.

The judge must be given sufficient information to make an independent determination that there is probable cause to expect a search of the specified location to yield evidence of a crime. See State v. Chippero, 201 N.J. 14, 32 (2009). Probable cause is less than the evidence needed for a conviction, but more than "mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966). It is something in between, a "'well[-]grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972) (quoting Burnett, supra, 42 N.J. at 387). Its determination is based on common sense and "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Sullivan, supra, 169 N.J. at 211 (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)).

Judges are to determine probable cause solely on the information that the police provide by supporting affidavits or sworn testimony. Chippero, supra, 201 N.J. at 26. Judges are also to consider "the totality of the circumstances." Id. at 27.

A search performed pursuant to a warrant is presumptively valid, and the defendant has the burden of proving the absence of probable cause. State v. Keyes, 184 N.J. 541, 554 (2005) (quoting State v. Jones, 179 N.J. 377, 388 (2004)). The defendant must make "a substantial preliminary showing" of material falsity, by specifying the information that the police included or withheld from the judge, "either deliberately or with reckless disregard of the truth." State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006) (quoting State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), aff'd as mod. on other grounds, 189 N.J. 108 (2007); see also State v. Howery, 80 N.J. 563, 567, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). The defendant must also show that the false or withheld information was material because it "would have militated against issuance of the search warrant." Ibid. (quoting Sheehan, supra, 217 N.J. Super. at 25).

The issuance of a search warrant is within the judge's discretion, and a reviewing court will pay "substantial deference" to it. Keyes, supra, 184 N.J. at 554. We will "not review the transcript of the [warrant application] proceeding . . . to determine for ourselves as factfinders whether it actually established probable cause." Chippero, supra, 201 N.J. at 32-33.

A controlled drug buy "typically will be persuasive evidence in establishing probable cause." Sullivan, supra, 169 N.J. at 217. Nonetheless, the duty of the judge issuing the warrant to "consider the totality of the circumstances, without focusing exclusively on any one factor," means that the judge "also must consider other factors, such as the reliability of the informant." Id. at 216-17.

In Sullivan, the police had an informant conduct two controlled drug buys, which they did not witness. Id. at 208-209. The Sullivan opinion does not suggest that the judge who issued the warrant considered any account of the controlled buys other than the one in the supporting affidavit. See id. at 209. In addition, the informant had no history of providing the police with reliable information, which was why the Court required a degree of corroboration. Id. at 214. Nonetheless, the Court found the controlled buys adequately corroborated, because the police verified the informant's identification of the apartment where the defendant would sell drugs in the controlled buys, and because they confirmed that the substance in the controlled buys was indeed cocaine. Id. at 216-17.

The corroboration in this case was similar to the corroboration in Sullivan. The police confirmed the drug-related criminal history of two residents of the apartment, Moscaguiri and LaPlaca; the visits to the apartment, by a man who arrived and departed in a car of particular model and color driven by someone else, were just as the informants described; and the substances in the controlled buys were identified as heroin in one and cocaine in the other. Furthermore, the procedures for the controlled buys in this case were the same as those in Sullivan, which were accepted as the general police practice. Id. at 215.

Defendant disregards this case's strong parallels to Sullivan in favor of emphasizing the differences between the police corroboration here and that in Keyes. That strategy is unavailing, because Keyes relied extensively on Sullivan, and it gave no indication that the Court had begun to view the corroboration in Sullivan as dubious in any way.

The totality of the circumstances here supported a well-grounded suspicion of a sufficient probability that criminal, drug-related activity was occurring at the apartment, and that searches of the apartment, the car, and the persons of interest would yield evidence of it. The judge did not abuse his discretion by finding probable cause to issue the search warrant.

V.

Defendant claims that the court erred by allowing Chhaya2 Nanawati, the State's forensic expert, to testify about drug tests conducted by a colleague. He argues that one expert may not simply relate another expert's report and vouch for it, but must instead base her opinions on her own review of the colleague's testing procedure and results, which was not done here.

The judge rejected defendant's various objections to testimony from Nanawati, on the ground that she was discussing only work that she had performed herself. The admission of hearsay, like all other "evidentiary determinations," is reviewed for abuse of discretion. State v. Buda, 195 N.J. 278, 294 (2008).

Nanawati discussed only the tests that she performed. She did not relate the colleague's results, either for total weight or chemical composition of the plastic bags that the colleague processed. All that Nanawati related about the colleague's testing was that it had occurred. Indeed, defendant articulates no particular criticism, not even a suggestion that the occurrence of the colleague's testing was mentioned as a way of bolstering the credibility of Nanawati's own results, or as a way of vouching for the chain of custody for all plastic bags that were designated for testing.

The composition and total weight of the contents of the plastic bags that Nanawati analyzed were sufficient to establish that the contents comprised more than one-half ounce of cocaine. That was the only evidence presented to the jury, and it was sufficient to establish the drug composition and quantity elements of each offense. The minor and generalized references to the colleague's work, even if they were hearsay, were incapable of causing any prejudice.

VI.

Defendant claims the court erred in denying his motion for acquittal or a new trial. We disagree.

In denying the motion for acquittal or a new trial, the judge found the jury was entitled to accept the testimony about how the drugs were found within the apartment. He found further that the testimony of LaPlaca and Johnson was a sufficient basis for the jury to find defendant's actual or constructive possession of the drugs pursuant to a conspiracy to distribute. Such consistency of the convictions with the evidence made acquittal unwarranted. A new trial was also unwarranted, because that consistency, along with the corroborating physical evidence, showed the lack of "clear and convincing evidence that there was a manifest denial of justice".

Rule 3:18-1 states

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

Our Supreme Court has explained the test for determining whether a motion for acquittal is warranted

the broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More [388] specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967) (citations omitted).]

If the State has failed to prove any one of the elements of the crime charged, the motion must be granted. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:18-1 (2016). In deciding a motion for acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).

This court will "review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).

On a Rule 3:20-1 motion for a new trial, the reviewing court

shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The standard of review is essentially the same as for review of the denial of a motion to acquit: we must sift through the evidence "to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982).

LaPlaca testified that she was a frequent visitor to the apartment and supplied the drugs that she and Moscaguiri sold there. Johnson's testimony confirmed that defendant's visits were regular rather than fortuitous. Defendant's prior offense involved the same drugs and the same kind of packaging for street sale as the drugs found in the apartment, and analogous efforts to keep them out of plain view, whether in locked compartments within a closet or in containers with hidden compartments. Thus, there was sufficient evidence in the record such that a reasonable juror could find defendant guilty beyond a reasonable doubt.

VII.

Defendant claims that the court erred by appointing an alternate juror instead of declaring a mistrial. He argues that substantial deliberations had already occurred, and that the State failed to satisfy its burden of showing that the disturbance to the deliberations lacked the capacity to taint the verdict by introducing elements that were beyond the evidence.

On April 24, 2013, a Wednesday, the judge instructed the jury and they began to deliberate. On April 25, 2013, the jury stated that they would not complete deliberations that day, and asked if they could resume on the following Monday due to the unavailability of one juror. Juror number eight informed the judge she would be unavailable due to "prepaid" plans. That same day, defendant moved for a mistrial, on the ground that deliberations had already proceeded for a full day with the original jurors and could not properly be resumed without all of them.

The judge denied the motion due to the absence of signs of a deadlock. He discharged juror eight and released the jury until the following Monday, April 29. On that day, he selected one of the two alternates to join deliberations. He instructed the jury to "start your deliberations over again" from "the very beginning," because the alternate juror "has no knowledge of earlier deliberations," and "[t]he parties have the right to a verdict reached by [twelve] jurors who have had the full opportunity to deliberate from start to finish." The original jurors and the alternate constituted "a new jury," so the original jurors "must set aside and disregard whatever may have occurred and anything which may have been said in the jury room" to that point, and they "must give no weight to any opinion expressed by juror number [eight] during deliberations." The following day, the reconstituted jury delivered a unanimous verdict.

"[T]he right of a defendant to be tried by an impartial jury is of exceptional significance," and "[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). Our rules accordingly allow the substitution of a juror after deliberations begin if "a juror dies or is discharged by the court because of illness or other inability to continue," R. 1:8-2(d)(1), but only on the condition that doing so would not "pose a threat to the integrity or independence of the deliberative process." State v. Musa, 222 N.J. 554, 565 (2015) (quoting State v. Jenkins, 182 N.J. 112, 124 (2004)). The Rule therefore "is to be employed sparingly." State v. Valenzuela, 136 N.J. 458, 468 (1994).

Our courts also recognize that "a mistrial imposes enormous costs on our judicial system, from the expenditure of precious resources in a retrial to the continued disruption in the lives of witnesses and parties seeking closure." Musa, supra, 222 N.J. at 565 (quoting Jenkins, supra, 182 N.J. at 124). Trial by an impartial jury and judicial economy are both "important goals," and the Rule "delicately balances" them. Jenkins, supra, 182 N.J. at 124.

The trial court's decision "to remove and substitute a deliberating juror because of an 'inability to continue'" is reviewed for abuse of discretion. Musa, supra, 222 N.J. at 564-65. A trial court's decision to deny a motion for mistrial that was prompted by the removal of a deliberating juror is likewise reviewed for abuse of discretion. Id. at 565.

Our courts have provided some touchstones for an acceptable substitution of an alternate juror for a deliberating one. The replacement of an "ill or deceased juror with an alternate" does not threaten the deliberative process. Musa, supra, 222 N.J. at 566. The juror must become unavailable for a personal reason that has nothing to do with the case or the progress of the deliberations. See Valenzuela, supra, 136 N.J. at 468. There must not be a suggestion of jury deadlock or friction over dissent. State v. Ross, 218 N.J. 130, 148-49 (2014); Valenzuela, supra, 136 N.J. at 468-69. Reasons such as economic hardship are acceptable because they "do not originate in the interactions between the excused juror and the remaining jurors." Ross, supra, 218 N.J. at 148.

When a substitution is made, "the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate." R. 1:8-2(d)(1). However, it is unlikely that the replacement juror will "play a meaningful role in deliberations" if "the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence." Jenkins, supra, 182 N.J. at 132 (quoting State v. Corsaro, 107 N.J. 339, 352 (1987)). In that event, the replacement juror "is likely to be confronted with 'closed or closing minds.'" Ibid. (quoting Corsaro, supra, 107 N.J. at 352).

Our Court has not recognized the duration of deliberations or any other particular event as a bright-line indication that a jury is incapable of beginning anew. See Ross, supra, 218 N.J. at 154-55 (decision to substitute a juror for illness and have the reconstituted jury begin anew was not considered error in that particular case, even though the original jury had already signaled an impasse). Instead, our courts have sometimes compared the length of deliberations before and after the substitution as part of "the totality of the circumstances." State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005).

Here, there was no indication that juror number eight's inability to continue was related to the case or the progress of deliberations; instead, her inability to continue was for purely personal reasons. There was also no indication that the reconstituted jury would be unable to begin deliberations anew, as there was no jury question or other development that suggested an impasse or friction. Finally, the judge's instructions about beginning anew were clear and thorough. Thus, we conclude the judge did not err in substituting an alternate juror for juror number eight.

VIII.

Defendant argues the court erred by failing to give an adverse inference charge. We conclude an adverse inference charge was unwarranted.

When reviewing claims of error in a jury charge, a court must read the charge as a whole. State v. Jordan, 147 N.J. 409, 422 (1997). We will not reverse if the erroneous instructions in the charge "are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994). See also Washington v. Perez, 219 N.J. 338, 351 (2014).

The inference that a party's failure to call a witness reflects the fear of disclosing unfavorable facts is justified only in "certain conditions," and even then, it "is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure." State v. Clawans, 38 N.J. 162, 170-71 (1962).

The necessary conditions are that "the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. The inference is unwarranted when the witness is "a person whose testimony would be cumulative, unimportant or inferior to what had been already utilized." Ibid.

Here, Officer Casey was just one of several officers involved in the search, and the only distinctive aspect of his role was that he preceded Thomas Muller a testifying Newton police officer into the bedroom and removed the Doritos can from the bag on the bed while Muller watched, only to find that it was empty, despite having a false bottom. Muller testified to all those developments, and testimony from Casey would have added nothing, neither detail nor nuance. Defendant does not name any other fact that Casey could have provided, so Casey's testimony would have been cumulative. The judge was correct to find that an adverse inference from the State's failure to call Casey as a witness was unwarranted.

IX.

Finally, the aggregate extended-term sentence of fifteen years in prison with five years of parole ineligibility was not excessive. Defendant argues that the judge failed to provide a sufficient explanation for the aggravating factors, and did not find mitigating factor N.J.S.A. 2C:44-1(b)(11), that his imprisonment would create an excessive hardship for his dependents.

Defendant asked the judge to find the mitigating factor number eleven because he "has several young children who will be adults by the time he is released." The judge denied the request, on the ground that the hardship on defendant and his family from incarceration was not "excessive," but rather no different than that for any other person facing incarceration and his or her family.

Instead, the court noted defendant's "extensive criminal history" of fourteen prior felony convictions, several of which were for drug offenses, which have "a corrosive effect on society." He accordingly found the aggravating factors in N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit future offenses; N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record and the seriousness of his prior offenses; and N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from committing such offenses. The judge further found that the absence of mitigating factors made the aggravating factors substantially preponderant, and imposed the sentence.

"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). We accordingly

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[State v. Roth, 95 N.J. 334, 364 65 (1984).]

The standard of review "is one of great deference." Dalziel, supra, 182 N.J. at 501. "Judges who exercise discretion and comply with the principles of sentencing remain free from the fear of 'second guessing.'" State v. Megargel, 143 N.J. 484, 494 (1996) (quoting Roth, supra, 95 N.J. at 365). A reviewing court must uphold those findings of aggravating factors and rejections of mitigating factors that had such a basis, Megargel, supra, 143 N.J. at 494, as it may vacate such findings only when they amounted to an abuse of discretion. Dalziel, supra, 182 N.J. at 504. Furthermore, the balance of aggravating and mitigating factors is not quantitative, but rather a qualitative analysis within the court's discretion of each factor's gravity in terms of the actual case. State v. Kruse, 105 N.J. 354, 363 (1987); Roth, supra, 95 N.J. at 368.

We conclude the judge was within his discretion to impose the fifteen-year sentence given defendant's extensive criminal record. As for rejecting the mitigating factor, a court must find any mitigating factor that is "amply based in the record." State v. Grate, 220 N.J. 317, 338 (2015) (quoting Dalziel, supra, 182 N.J. at 504-05). However, defendant offered no details about hardship beyond the obvious and irreducible impositions that incarceration imposes on all prisoners and their dependents.

Affirmed.

1 State v. Pohl, 554 P.2d 984, 985 (N.M. Ct. App. 1976) (the "defendant had shown two prior instances of the officer['s] alleged misconduct"); Pitchess v. Superior Ct. of L.A. Cty., 522 P.2d 305, 307 (Cal. 1974) (the defendant cited "several investigations" of the arresting officers after other civilians accused them of excessive force), superseded by statute, Cal. Evid. Code 1043 and 1045, as recognized in People v. Breaux, 821 P.2d 585, 602 (Cal. 1991) (Pitchess superseded by statutory process for disclosure upon showing of good cause), cert. denied, 506 U.S. 873, 113 S. Ct. 214, 121 L. Ed. 2d 153 (1992); State v. Fleischman, 495 P.2d 277, 281-82 (Or. Ct. App. 1972) (the defendant accused the officer of being the aggressor in a prior incident).

2 Although the expert's name is spelled inconsistently in the record, appearing as both Chhaya and Chahaya, we adopt the former spelling.