STATE OF NEW JERSEY v. ALDO ORELLANA
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1768-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALDO ORELLANA,
Defendant-Appellant.
___________________________________
Submitted February 28, 2017 – Decided December 7, 2017
Before Judges Ostrer and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
11-08-1289.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
A jury found Aldo Orellana guilty of second-degree conspiring
to possess, to possess with intent to distribute, and to
distribute, heroin.
N.J.S.A. 2C:5-2;
N.J.S.A. 2C:35-5(a)(1). The
court sentenced him to a seven-year prison term, consecutive to a
federal term he was then serving. He presents the following points
on appeal:
POINT ONE
THE INDICTMENT SHOULD HAVE BEEN DISMISSED FOR
VIOLATION OF THE PROVISIONS OF THE INTERSTATE
AGREEMENT ON DETAINERS.
POINT TWO
THE TESTIMONY OF DETECTIVE MARCHAK AND
DETECTIVE COFFEY EXCEEDED THE SCOPE OF PROPER
LAY OPINION. (Not raised below)
POINT THREE
LIEUTENANT WEITZ'S EXPERT OPINIONS USURPED THE
ROLE OF THE JURY.1
POINT FOUR
DEFENDANT WAS PREJUDICED BY THE ADMISSION OF
INADMISSIBLE "OTHER CRIMES" EVIDENCE.
We affirm, although this was far from a perfect trial. See
State v. Marshall,
123 N.J. 1, 170 (1991) ("[A] defendant is
entitled to a fair trial but not a perfect one." (quoting Lutwak
1
As discussed below, defense counsel raised this objection late,
after Lieutenant Weitz had at least twice expressed the opinion
the defense contends was objectionable.
2 A-1768-14T2
v. United States,
344 U.S. 604, 619,
73 S. Ct. 481, 490,
97 L. Ed. 593, 605 (1953)), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed. 2d 694 (1993)). Two of the State's police witnesses,
Detectives Marchak and Coffey, gave expert opinions without being
offered as experts; and a third witness, Lieutenant Weitz, although
a qualified expert, offered opinions that exceeded the scope our
case law allows. Furthermore, the State introduced other crimes
evidence that, although admissible, was unaccompanied by the
appropriate limiting instruction. However, these errors do not
warrant reversal, given the strength of the State's other evidence.
I.
Defendant's indictment arose out of a wiretap investigation
of a drug distribution ring involving co-defendants, Levan Bryant,
Jomas Arrington and several others.2 Bryant pleaded guilty and,
in compliance with his plea agreement, testified for the State.
He stated that defendant supplied him with heroin. Bryant
admitted, and the wiretapped conservations corroborated, that he,
in concert with Arrington, prepared and packaged the heroin for
sale. Arrington then distributed the heroin to street-level
dealers. At the end of the investigation, police raided Bryant's
2
The twenty-nine count indictment charged twelve defendants,
including the three men. Although many of the others were charged
with various substantive drug-related crimes, Orellana was charged
in a single conspiracy count.
3 A-1768-14T2
and Arrington's homes, and seized large quantities of heroin, drug
paraphernalia and cash.
The case against defendant principally rested on Bryant's
direct testimony, as well as powerful circumstantial evidence that
defendant distributed heroin to Bryant at three person-to-person
meetings in March 2011. Surveillance officers observed the
meetings in front of a donut shop, a pharmacy, and a convenience
store in Perth Amboy. At the first meeting, an officer testified
that defendant left his car holding a small shopping bag, entered
Bryant's car briefly, returned to his car without the shopping
bag, reached inside, walked back to Bryant's car and shook Bryant's
hand, then again returned to his car and left. An apparent
exchange of something occurred at a second meeting. The police
conceded they did not observe drugs themselves; nor did they seize
drugs immediately after these meetings. They asserted that would
have compromised their broader ongoing investigation.
In addition to Bryant's testimony, the State demonstrated
that these meetings were neither coincidental nor innocent,
through numerous wiretapped conversations and texts. Although
defendant was overheard in none of them, his first name was
mentioned in several, and based on other evidence, he was the
clear subject of others. In some instances, Bryant referred to
4 A-1768-14T2
defendant as "the Mexican," although defendant actually emigrated
from Ecuador.
In overheard conversations before each of the three meetings,
Bryant referred to his source of supply. He discussed meeting
with his supplier and mentioned issues he intended to raise with
him. In one recorded conversation, Bryant announced that his
supplier had arrived, just as police observed defendant pull into
the parking lot where Bryant was waiting. Once the meetings ended,
Bryant was overheard referring to the meeting, or reflecting that
he had been resupplied with heroin. Bryant was also overheard
talking to, or about, other drug dealers, who had the same source
of supply. Bryant testified that at least one other dealer was
supplied heroin by defendant.
In addition to Bryant's testimony, the State presented its
case through three police witnesses. Detectives Marchak and Coffey
observed the meetings between defendant and Bryant, and conducted
the search and seizure at the end of the investigation. Lieutenant
Steven Weitz, as a fact witness, described the course of the
investigation, and, as an expert witness, interpreted the
recordings and texts the State introduced.
Defendant did not testify or present witnesses. His counsel
readily conceded in opening and closing statements that Bryant and
Arrington were involved in distributing drugs; the overheard
5 A-1768-14T2
conversations corroborated that; and drugs, drug paraphernalia,
and cash were seized from their homes. However, counsel argued
the evidence was insufficient to establish defendant was the
supplier. Counsel argued that Bryant was talking to defendant
about selling his truck and Bryant's real supplier lived in
Plainfield.
II.
Defendant contends the State failed to try him within the
time allotted under the Interstate Agreement on Detainers, after
he was delivered to Middlesex County from federal custody. He
relies on the wrong deadline.
When the State requests the transfer of a prisoner to New
Jersey for trial, he shall be brought to trial within 120 days of
his arrival. See N.J.S.A. 2A:159A-4(c). However, when a defendant
seeks transfer to New Jersey for trial, a 180-day deadline applies.
See N.J.S.A. 2A:159A-3(a). Both deadlines are subject to
reasonable and necessary continuances granted by the court for
good cause. N.J.S.A. 2A:159A-3(a), -4(c).
Defendant does not dispute that the State complied with the
180-day deadline, as extended by the court for good cause. Rather,
he contends, as he did before the trial court, that the State was
required to bring him to trial within 120 days. Defendant claims
6 A-1768-14T2
he was transferred at the prosecutor's behest, not his own. The
trial court found that simply was not so. We agree.
In June 2012, defendant signed forms requesting transfer from
federal prison to New Jersey for trial, and acknowledging that he
must be tried within 180 days, subject to continuances. The
federal warden conveyed defendant's request to the Middlesex
County Prosecutor. On September 24, 2012, the prosecutor signed
a form accepting temporary custody of defendant and expressing his
intention to bring defendant to trial "within the time specified
in Article III(a) of the [IAD]," which is codified at N.J.S.A.
2A:159A-3. The form was entitled "Prosecutor's acceptance of
temporary custody offered with an inmate's request for disposition
of a detainer." It stated that it was "[i]n response to
[defendant's] letter of June 6, 2012 and offer of temporary
custody." Defendant was then transferred to Middlesex County.
In sum, defendant was transferred at his request.3 The State
had 180 days, plus reasonable and necessary continuances, to bring
him to trial. The State complied with that requirement.
III.
3
We attach no significance to a mistaken statement in defendant's
presentence report that "2/24/2012: Prosecutor requested the
defendant to be produced from LCSI to MCACC for criminal trial."
The IAD documentary record governs.
7 A-1768-14T2
We apply a plain error standard of review to defendant's
newly minted argument that Detectives Marchak and Coffey offered
expert opinions while testifying as lay witnesses. Detective
Marchak identified various forms of drug paraphernalia found in
Arrington's home, and described their use in processing and
packaging of heroin. Detective Coffey offered similar opinions
about items found in Bryant's residence.
We recently distinguished between the allowable scope of
police lay and expert opinion in drug prosecutions. See State v.
Hyman, ___ N.J. Super. ___, ___-___ (App. Div. 2017) (slip op. at
8-11). With those principles in mind, we have no doubt that the
two detectives exceeded the scope of allowable lay opinion, as
they drew upon their "specialized knowledge" outside the jury's
understanding. See N.J.R.E. 702; see also State v. Cain,
224 N.J. 410, 426-27 (2016) (noting "[t]he average juror is not
knowledgeable about the arcana of drug-distribution schemes," and
officers with "specialized knowledge" may offer expert opinions
to "assist the trier of fact to understand the evidence or to
determine a fact in issue.").
However, the detectives here offered their opinions without
objection. Defense counsel conceded in her opening statement that
Bryant and Arrington were drug dealers, and police found heroin,
cocaine, paraphernalia, stamps and packaging materials in their
8 A-1768-14T2
homes. The issue at trial, which defense counsel highlighted, was
whether defendant supplied these undisputed drug dealers with
heroin. Thus, it is apparent that "the failure to object was a
recognition by counsel that the alleged error in fact was of no
moment or was a tactical decision to let the error go uncorrected
at the trial." State v. Macon,
57 N.J. 325, 337 (1971). The
detectives' opinions did not deny defendant "a fair trial and a
fair decision on the merits," id. at 338, nor were they "clearly
capable of producing an unjust result." R. 2:10-2.
IV.
Defendant contends that Lieutenant Weitz usurped the jury's
role by testifying that defendant was Bryant's supplier. Although
we agree, we decline to reverse on that ground.
The State introduced the numerous recorded conversations and
texts through Lieutenant Weitz, who was qualified as an expert in
drug enforcement and the crimes that defendant was charged with
conspiring to commit. He explained generally how heroin is
distributed, from the supplier down to the street level dealer.
He described the investigation, which focused on Bryant's and
Arrington's drug network.
The lieutenant offered his opinion about the meaning or
significance of each conversation and text. Without objection,
the lieutenant translated drug slang that Bryant or others used,
9 A-1768-14T2
see Hyman, supra, and opined that certain communications referred
to Bryant's "source of supply" or "the Mexican," without
identifying him as defendant.
However, the lieutenant also opined, initially without
objection, that defendant was Bryant's source of supply. For
example, regarding the first meeting at the donut shop, Lieutenant
Weitz testified that police observed Bryant's "source of supply"
arrive; and then he testified that the person was defendant.
Describing Bryant's conversation with Arrington immediately after
the donut shop meeting, the lieutenant testified, "it's clear
[from] that conversation Bryant met Orellana, [who is] the source
of supply . . . ."
Only after the third time the lieutenant identified defendant
as Bryant's source of supply — noting that Bryant was "talking
about getting larger quantities from Mr. Orellana" — defense
counsel objected. She asserted it was inappropriate for the
witness to offer an opinion about "the identity of who they're
talking about."
The court held that such an opinion was admissible, so long
as the State laid a proper foundation. The State then elicited
the lieutenant's explanation: "After the intercepts and the
subsequen[t] surveillance in which Mr. Orellana was observed
meeting with Mr. Bryant, it became clear that the source of supply
10 A-1768-14T2
was in fact Aldo Orellana." He added that he believed "the
Mexican" was defendant. Thereafter, the witness repeatedly
referred to defendant as the supplier mentioned in the recorded
conversations, although in several instances it was unnecessary,
as one of the speakers actually referred to defendant by his first
name, Aldo.
Lieutenant Weitz exceeded the permissible scope of expert
opinion when he asserted that defendant was the unnamed supplier
mentioned or referenced in several recorded conversations. An
expert "may not . . . usurp the jury's function by, for example,
opining about defendant's guilt or innocence . . . ." State v.
McLean,
205 N.J. 438, 453 (2011). Nor may a drug expert offer
opinions "on the meaning of facts that the jury is fully able to
sort out without expert assistance . . . ." Id. at 461. Expert
opinion "is not a substitute for jurors performing their
traditional function of sorting through all of the evidence and
using their common sense to make simple logical deductions." Cain,
supra,
224 N.J. at 427; see also Hyman, supra, ___ N.J. Super. at
___ (slip op. at 17) (stating that a trial court "must guard
against opinions that stray from interpreting drug code words and
11 A-1768-14T2
pertain to the meaning of conversations in general . . . .").4 In
opining that defendant was "the Mexican" in some conversations,
and the unnamed supplier in others, the lieutenant relied on the
circumstantial evidence that was not beyond the jury's ken to
evaluate — the observed meetings between Bryant and defendant, and
Bryant's phone calls immediately before and after those meetings.
However, the error does not warrant a new trial. Defense
counsel failed to object the first two times the lieutenant offered
his opinion equating the source of supply with defendant. We
review such untimely objections for plain error. See State v.
Bueso,
225 N.J. 193, 203 (2014). "[T]hat high standard provides
a strong incentive for counsel to interpose a timely objection,
enabling the trial court to forestall or correct potential error."
Ibid. Further, "a timely objection [also] signifies that the
defense believes itself to have been prejudiced by the prosecutor's
remarks." Ibid. (quoting State v. Wilson,
57 N.J. 39, 51 (1970)).
Here, defense counsel's late objection did not alert the trial
court that the defense took issue with the lieutenant's testimony
4
Notably, defendant did not object to the lieutenant's expert
opinion on the ground that he was also an investigating officer.
See Hyman, supra, ___ N.J. Super. at ___ (slip op. at 27) (stating
that a trial court has the discretion to permit such a dual role,
notwithstanding the risks of prejudice, but the trial court is
obliged to instruct the jury that it may reject both the expert
opinion and factual recitation offered by such a witness).
12 A-1768-14T2
and did not allow the court to address it with a timely curative
instruction. In light of the State's strong proofs against
defendant, the admission of the lieutenant's opinions about the
supplier's identity was not "clearly capable of producing an unjust
result." R. 2:10-2.
Even if we assume the error was preserved and we apply a
harmful error standard, the error did not deny defendant a fair
trial and fair decision on the merits; as to that we have no
reasonable doubt. See State v. Mohammed,
226 N.J. 71, 86-87 (2016)
(setting forth harmful error standard). The lieutenant's opinion
added relatively little to the State's case. The jury learned
that the lieutenant was relying on the same circumstantial evidence
that it was asked to interpret. Furthermore, defendant was
mentioned by his first name in some conversations and was observed
meeting with Bryant on three occasions, providing powerful
evidence of his connection to Bryant.
Thus, we conclude the erroneous admission of expert opinion
identifying defendant as the source of supply does not warrant a
new trial. See State v. Sowell,
213 N.J. 89, 107 (2013) (declining
to reverse defendant's conviction, notwithstanding error in
admitting opinion that drug transaction occurred, "because of the
overwhelming evidence of defendant's guilt"); Hyman, supra, ___
N.J. Super. at ___ (slip op. at 33-34).
13 A-1768-14T2
V.
Finally, defendant contends the court erred in allowing
Lieutenant Weitz to opine, in interpreting an overheard
conversation, that defendant supplied heroin not only to Bryant,
but to a man known as "Yellow." Defendant contends the opinion
was inadmissible "other crimes" evidence.
Here, too, defense counsel's objection was late. The
lieutenant described "a call between Bryant and [an] unidentified
male a/k/a Yellow who I believe . . . also — obtained his heroin
from Aldo Orellana." The lieutenant observed that the two men
were discussing the quality of the heroin they obtained. The
defense did not object. The lieutenant interpreted another call
between Bryant and Arrington, in which Bryant referred to his
previous call about drug quality with Yellow. Again, defense
counsel registered no objection.
Only after the lieutenant interpreted yet another
conversation did defense counsel object. Bryant and Arrington
talked again about the quality of heroin and their efforts to find
a second source of supply because they wanted to sell drugs in
Pittsburgh. The lieutenant testified that the conversation made
it clear that Bryant and Arrington had "only . . . one person that
they're dealing with because they're speaking about this other
person, Yellow, who is also obtaining his heroin from Aldo Orellana
14 A-1768-14T2
and . . . has other outlets. He has the ability to get higher
quality heroin from other individuals other than just Orellana."
Defense counsel objected:
I have an issue with him saying that the
[person] now known [as] Yellow is being
(indiscernible) [supplied by] Orellana. It's
not anywhere in the transcript. . . . I think
it's bringing an inference in that he knows
he was being supplied by Aldo Orellana from
someone other than what we're hearing . . . .
She elaborated that the lieutenant should not be permitted to
"give his opinion about who he thinks [is] doing what and with
whom[m] . . . ." Defense counsel did not refer to N.J.R.E. 404(b),
or other crimes evidence. Her objection appeared to focus on the
foundation and allowable scope of the lieutenant's opinion.
The judge concluded that the lieutenant was entitled to
express his opinion that defendant supplied Yellow, so long as it
was made clear it was his opinion. The court instructed the jury
that Yellow was not a defendant in the case. "[Y]ou also heard
testimony from the lieutenant that Mr. Orellana was the source
[of] supply for this Yellow. And this is Lieutenant Weitz's
opinion." The court then gave the model charge on expert opinion.
Notably, defense counsel did not object when Bryant, a fact
witness, testified that he and Yellow both obtained heroin from
defendant.
15 A-1768-14T2
On appeal, defendant recasts his argument, and contends
evidence that defendant sold drugs to Yellow was other crimes
evidence; the court failed to subject it to a Cofield5 analysis to
determine its admissibility; and failed to issue a limiting
instruction on the permitted and impermissible use of the evidence.
For two reasons, we apply a plain error standard of review.
Defendant raised an objection only after Lieutenant Weitz had
already testified that defendant sold drugs to Yellow. See Bueso,
supra,
225 N.J. at 203 (applying plain error standard to untimely
objections). When defense counsel did object, she did so on
different grounds. See State v. Nunez,
436 N.J. Super. 70, 76-77
(App. Div. 2014) (applying plain error standard where defense
counsel's objection was based on the incorrect ground). Although
the court did not provide the required limiting instructions as
to the proper use of other crimes evidence, see State v. Marrero,
148 N.J. 469, 495 (1997), defendant did not request them.
As the trial court did not apply N.J.R.E. 404(b), we must do
so. State v. Rose,
206 N.J. 141, 158 (2011). We are persuaded
5
State v. Cofield,
127 N.J. 328, 338 (1992) (stating that evidence
of other crimes must be (1) "admissible as relevant to a material
issue"; (2) the other crime must be "similar in kind and reasonably
close in time to the offense charged"; (3) "[t]he evidence of the
other crime must be clear and convincing"; and (4) "[t]he probative
value of the evidence must not be outweighed by its apparent
prejudice").
16 A-1768-14T2
that evidence that defendant also sold drugs to Yellow satisfied
the Cofield test. It was relevant because it demonstrated the
lack of a coincidence or mistake. Defendant argued that his
meetings with Bryant pertained to his potential purchase of
Bryant's truck. Defendant wanted the jury to believe that Bryant's
conversations before and after his meeting with defendant were
merely coincidental, or efforts to shift blame to defendant.
Evidence of defendant's sale of drugs to others tended to show
that defendant's meetings with Bryant were not mere coincidence.
See United States v. Decinces,
808 F.3d 785, 791 (9th Cir. 2015)
(admitting evidence of similar insider trading transactions to
prove lack of coincidence in connection with charged transaction);
United States v. Guerrero,
524 F.3d 5, 14 (1st Cir. 2008) (evidence
of prior robberies were admissible to prove it was unlikely that
defendant's presence in getaway car was "a mere coincidence").
As to the other three factors, based on the conversations,
the sales to Yellow were made at or near the time of sales to
Bryant. The evidence that the defendant sold drugs to Yellow was
clear and convincing, based upon the recorded conversations, and
Bryant's own testimony. Finally, the probative value was not
outweighed by its apparent prejudice. Defendant argued that he
was not the person who supplied Bryant or Yellow. Ultimately, the
17 A-1768-14T2
State's case depended on persuading the jury that defendant was
Bryant's supplier.
Although the court did not, sua sponte, provide the jury with
the required instructions related to other crimes evidence, we are
not persuaded that the omission "was clearly capable of producing
an unjust result." R. 2:10-2. The evidence was not presented to
demonstrate that defendant was a bad person, or had a propensity
to commit crimes, nor was it likely the jury would use the evidence
that way. The key issue at trial was whether defendant was
Bryant's supplier. The judge instructed the jury that Yellow was
not a defendant in the case. Furthermore, defense counsel used
the evidence to tactical advantage and argued in summation that
Yellow may have been Bryant's supplier, not defendant. The State
did not highlight the defendant-Yellow connection in its
summation.
In sum, we reject defendant's argument that the conviction
should be reversed because Lieutenant Weitz opined that defendant
also sold heroin to another person.
Affirmed.
18 A-1768-14T2
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