STATEOF NEW JERSEY v. DENNIS KULINETS
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1870-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
V.
DENNIS KULINETS,
Defendant-Appellant.
Submitted January 22, 2018 - Decided February 22, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 14-05-0515.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
A jury convicted defendant Dennis Kulinets of various drug
and weapon offenses. For the first time on appeal, defendant
contends certain evidentiary errors warrant reversal of his
convictions. Defendant argues further the trial court erred in
applying aggravating factor five when imposing sentence. Having
reviewed defendant's arguments in light of the record and
applicable legal principles, we affirm.
I.
We summarize the pertinent facts from the trial record.
Acting on complaints of drug activity in a local park, Edison
Police Detectives established an undercover surveillance of
possible targets, including Mandeep Singh.1 Defendant was not a
target of the investigation.
On October 15, 2013, at approximately 1:45 p.m., detectives
observed the driver of a gray Volkswagen, later identified as
defendant, approach Singh in the park. Singh entered the car and
defendant drove out of the park. Detectives followed the
Volkswagen, which stopped suddenly in the middle of the road. From
their vantage point in an unmarked vehicle, detectives observed
defendant exit his car, open the trunk, and remove a clear plastic
bag containing marijuana. When detectives activated the overhead
lights on their vehicle, defendant threw the marijuana back into
the trunk.
1
Prior to defendant's trial, Singh pled guilty pursuant to an
unspecified plea agreement with the State. His appeal is not
before us.
2 A-1870-16T1
Detectives detained defendant and Singh, and seized a
marijuana grinder and three large bundles of cash from the open
glove box. Detectives obtained a warrant to further search
defendant's car. Two bags of marijuana were seized from the trunk:
the clear plastic bag, containing forty-nine ounces of marijuana
defendant had removed from the trunk in the presence of the
detectives; and a black shopping bag, containing ninety-six ounces
of marijuana. Detectives also recovered from the trunk a digital
scale, and a .38 Smith & Wesson revolver loaded with two bullets.
Defendant gave detectives the password to his cellular telephone,
and they found an "owe sheet" listing money owed to him by four
individuals, including Singh.
After waiving his Miranda2 rights, defendant made two video-
recorded statements that were played for the jury at trial.3 In
the first statement, defendant admitted he intended to sell one
ounce of marijuana to Singh for $280, and the cash in the glove
box totaling approximately $2,900 or $3,000. Defendant stated
2
Miranda v. Arizona,
384 U.S. 436 (1966).
3
It is unclear from the record whether the court held a pretrial
Miranda hearing. See N.J.R.E. 104(c) and N.J.R.E. 803(b)(1).
However, prior to admitting into evidence each video-recorded
statement, the trial court instructed the jurors it was their
"function to determine whether or not the statement was actually
made by the defendant, and if made[,] whether the statement or any
portion of it is credible."
3 A-1870-16T1
further he could purchase an ounce of "indoor" quality marijuana
for less than $100, but he had to drive two hours to purchase it.
Defendant did not make the transaction with Singh in the park
because he "[did not] like doing things at parks." Although his
car smelled of marijuana, he claimed he had not smoked the drug
in one year.
During his questioning in the second statement, the lead
detective suggested defendant grew the loose marijuana because it
appeared freshly cut and was contained in a grocery bag, while the
other quantity of marijuana was packed into a sealed bag.
Indicating he lived with his parents, defendant denied growing
marijuana. He stated further he "usually" purchases similarly-
packaged marijuana. Defendant claimed he found the revolver in a
creek near his home, approximately two weeks prior to his arrest,
and did not know why he stored the weapon in the trunk.
On April 22, 2016, a jury convicted defendant of third-degree
possession of one ounce or more of marijuana with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11); second-
degree possession of more than one ounce of marijuana with intent
to distribute within 500 feet of a park,
N.J.S.A. 2C:35-7.1;
second-degree unlawful possession of a firearm,
N.J.S.A. 2C:39-
5(b); and second-degree possession of a firearm during a drug
offense,
N.J.S.A. 2C:39-4.1.
4 A-1870-16T1
At sentencing, the trial court merged the conviction for
third-degree possession with intent to distribute marijuana with
the conviction for second-degree possession with intent to
distribute within 500 feet of a park, and sentenced defendant to
a six-year term of imprisonment. The court merged the conviction
for second-degree unlawful possession of a firearm with the
conviction for second-degree possession of a firearm during a drug
offense. The court imposed a consecutive six-year term of
imprisonment, with forty-two months of parole ineligibility
pursuant to
N.J.S.A. 2C:39-4.1(d). The court also sentenced
defendant to a consecutive four-year term of imprisonment for a
violation of probation, having found defendant committed the
present offenses while he was serving a term of probation.
On appeal defendant raises the following arguments for our
consideration:
POINT I
THE ARRESTING OFFICER'S ACCUSATION AND OPINION
THAT DEFENDANT WAS INVOLVED IN THE MANUFACTURE
OF MARIJUANA WERE UNFOUNDED, INAPPROPRIATE,
AND VIOLATIVE OF DEFENDANT'S RIGHT TO DUE
PROCESS AND A FAIR TRIAL. U.S. Const.
[a]mend[]. VI and X[IV]; N.J Const., [a]rt.
1, [¶] 9 and 10.
(Not raised below)
POINT II
WHERE THERE WAS NO CLAIM THAT THE POLICE WERE
ACTING ARBITRARILY IN THEIR SURVEILLANCE
5 A-1870-16T1
OPERATION, THE INTRODUCTION OF GRATUITOUS
TESTIMONY PORTRAYING DEFENDANT'S ASSOCIATE AS
THE SCOURGE OF THE NEIGHBORHOOD DENIED
DEFENDANT HIS RIGHTS TO CONFRONTATION AND A
FAIR TRIAL.
(Not raised below)
POINT III
IF THE CONVICTIONS ARE NOT REVERSED, THE
MATTER SHOULD BE REMANDED FOR IMPOSITION OF A
LESSER SENTENCE BECAUSE THE COURT SHOULD NOT
HAVE FOUND AGGRAVATING FACTOR FIVE.
For the reasons that follow, we affirm.
II.
For the first time on appeal, defendant raises constitutional
challenges to the admission of evidence at trial. He claims his
right to due process was violated because testimony was elicited
from the lead detective suggesting defendant manufactured
marijuana. Defendant claims further his right of confrontation
was denied because the trial court permitted hearsay testimony of
Singh's drug dealing.
When a defendant fails to raise an issue at trial, our review
is governed by the plain error standard. R. 1:7-2; R. 2:10-2; see
State v. Singleton,
211 N.J. 157, 182-83 (2012). "Any error or
omission shall be disregarded by the appellate court unless it is
of such a nature as to have been clearly capable of producing an
unjust result. . . ." R. 2:10-2. When applying the plain error
standard to evidence that should have been excluded, "the error
6 A-1870-16T1
will be disregarded unless a reasonable doubt has been raised
whether the jury came to a result that it otherwise might not have
reached." State v. R.K.,
220 N.J. 444, 456 (2015) (citing State
v. Daniels,
182 N.J. 80, 95 (2004)). In weighing the effect of
improperly admitted evidence, this court may assess "if the State's
case is particularly strong." Ibid.; see also State v. Chapland,
187 N.J. 275, 289 (2006)(recognizing "any finding of plain error
depends on an evaluation of the overall strength of the State's
case"). Under this heightened standard, defendant's arguments are
unpersuasive.
A.
We first address defendant's contention the trial court erred
in permitting testimony suggesting he manufactured marijuana, when
he was not charged with a manufacturing offense. Defendant
contends the jury was "misled to believe that [he] was a high-
level player in the marijuana business, so they would conclude
that certainly he was guilty of the less serious charges before
them." Defendant claims the court erred not only in admitting the
video recording of his second statement to the detectives, but
also in permitting follow-up questioning by the State of the lead
detective after the recording was played for the jury at trial:
Q: Okay. . . . you questioned [defendant] on
why – on whether he was growing marijuana,
right?
7 A-1870-16T1
A: Yes.
Q: Why did you do that?
A: Well, because the marijuana was loose in a
bag, and it was freshly – you can see that it
was freshly cut.
Q: Okay. What do you mean by freshly cut?
A: It was – the marijuana was very fresh. It
wasn’t dried out. It was – it looked like it
had just come off a plant recently.
To support his argument this testimony was problematic,
defendant first claims the detective was not qualified as an expert
in marijuana manufacturing. This argument is misplaced. The lead
detective did not opine at trial defendant grew marijuana. Rather,
his pretrial interrogation of defendant was an investigative
technique designed to elicit an admission. The technique failed,
however, because defendant consistently denied he grew the
marijuana, claiming, "I live with my parents, there's no way that's
happening."
Further, the lead detective's testimony the marijuana was
"freshly cut," "wasn't dried out," and "looked like it had just
come off a plant recently" are observations based on his
perceptions. To be admissible, lay opinion must be based on the
perception of the witness and provide evidence that will assist
the factfinder in performing its function. State v. McLean, 205
8 A-1870-16T
1 N.J. 438, 456 (2011) (citing N.J.R.E. 701, which permits testimony
based on the perception of the witness when it "will assist in
understanding the witness' testimony").
Ultimately, admissibility of lay opinion rests with the
discretion of the trial court. State v. LaBrutto,
114 N.J. 187,
197 (1989). Therefore, we review the admission of this evidence
for an abuse of discretion. State v. Feaster,
156 N.J. 1, 82
(1998). Substantial deference is afforded to the trial judge's
discretion on evidentiary rulings unless it is a clear error of
judgment or so wide of the mark that a manifest denial of justice
results. See, e.g., State v. Koedatich,
112 N.J. 225, 313 (1988);
State v. Swint,
328 N.J. Super. 236, 253 (App. Div. 2000).
In light of our deferential standard of review and defendant's
failure to object to the detective's line of inquiry and the
State's follow-up questioning, we discern no error, much less
plain error, in the admission of the detective's observations of
the characteristics of the marijuana. Rather, the detective's
description of the marijuana seized aided the jury in understanding
the detective's technique in questioning defendant.
Moreover, aside from its belated nature, defendant's argument
is flawed because the evidence against him at trial was
"particularly strong." R.R.,
220 N.J. at 456. Specifically, the
detectives observed defendant retrieve marijuana packaged in a
9 A-1870-16T1
clear plastic bag from his Volkswagen in broad daylight. Further,
defendant admitted ownership of all contraband seized from the
car, specifically: two packages of marijuana, a grinder, a digital
scale; large quantities of bundled cash; and a loaded revolver.
He also admitted driving two hours to purchase marijuana at a
significantly lower price than he sold it. He not only admitted
he contacted Singh to sell him marijuana but also that Singh and
three other individuals listed on the "owe sheet" in his cellular
phone owed him money. Based on this overwhelming evidence of
defendant's guilt, we also are not persuaded he was unduly
prejudiced by the admission of the detective's testimony. N.J.R.E.
403.
Defendant claims further for the first time that the trial
court did not issue a limiting instruction regarding the lead
detective's challenged testimony. Defendant is "in a poor position
to argue on appeal about the failure of the trial judge to give a
[limiting] instruction when he had not requested one[.]" State
v. Nelson,
318 N.J. Super. 242, 254 (App. Div. 1999); see also
N.J.R.E. 105 (providing for a limiting instruction "upon
request"). Notably at the conclusion of trial, the court
instructed the jurors, among other things, that their verdict must
not be based on "speculation, conjecture, and other forms of
guessing." Given the strong evidence against defendant, "we are
10 A-1870-16T1
not prepared to view this purported error as plain," State v.
Johnson,
287 N.J. Super. 247, 262 (App. Div. 1996), particularly
because "the prosecutor did not suggest to the jury, in summation
or otherwise, that [it] should use the evidence to draw . . . an
improper conclusion." State v. Burden,
393 N.J. Super. 159, 172
(App. Div. 2007).
Nor, on these facts, do we discern a basis for the trial
court sua sponte to have given such an instruction. See, e.g.,
State v. Brown,
138 N.J. 481, 535 (1994) (no limiting instruction
required if affected party waives right to have it given); Nelson,
318 N.J. Super. at 254 (no plain error found where limiting
instruction should have been given even though not requested).
Therefore, we find no plain error in the judge's failure to provide
a limiting instruction relative to the lead detective's suggestion
during questioning that defendant manufactured marijuana, or at
trial as to why he conducted his inquiry.
B.
We next address defendant's newly minted argument he was
denied his constitutional right to confrontation and a fair trial
by the court's admission of hearsay statements concerning drug
activity in the park, and the State's "excessive" references to
Singh's drug dealing. Defendant also argues the trial court failed
to provide the jury with a limiting instruction to counter the
11 A-1870-16T1
implication defendant was guilty by association with Singh. Under
the heightened plain error standard, defendant's arguments fail.
Initially, defendant's reliance on State v. Branch,
182 N.J.
338 (2005), is misplaced. There, the Court held police officers
"may not imply to the jury that [they] possess[] superior
knowledge, outside the record, that incriminates the defendant."
Id. at 351. Further, "the Confrontation Clause and the hearsay
rule are violated when . . . a police officer conveys . . .
information from a non-testifying declarant to incriminate the
defendant." Id. at 350.
Here, evidence was adduced at trial that detectives
established an undercover surveillance operation in the vicinity
of a local park and Singh's residence based on citizen complaints
of drug activity in that area. The complaints of these non-
testifying concerned citizens did not incriminate defendant.
Rather, the testimony explained why the officers were in the area.
Indeed, defendant was arrested because he sold a quantity of
marijuana to Singh, in the presence of law enforcement officers,
and possessed a large quantity of marijuana and a firearm.
Further, he subsequently admitted he supplied Singh with
marijuana, and that he had previously purchased marijuana for
resale. In light of the overwhelming evidence of defendant's
guilt, the admission of background information pertaining to Singh
12 A-1870-16T1
and the surveillance of the park near his residence is not
"'sufficient to raise a reasonable doubt as to whether the error
led the jury to a result it otherwise might not have reached.'"
State v. Williams,
168 N.J 323, 336 (2001) (quoting State v. Macon,
57 N.J. 325, 336 (1971)). See also State v. Prall, ___ N.J. ___,
___ (2018) (upholding a conviction despite evidentiary errors
because the errors were harmless in light of the "overwhelming
admissible evidence" of defendant's guilt).
III.
Defendant also challenges his sentence, arguing the court
improperly considered aggravating factor five. He urges us to
remand for resentencing without this factor.
At defendant's sentencing hearing, the court found
aggravating factors three, the risk defendant will commit another
offense,
N.J.S.A. 2C:44-1(a)(3); five, a substantial likelihood
the defendant is involved in organized criminal activity,
N.J.S.A.
2C:44-1(a)(5); and nine, the need for deterrence,
N.J.S.A. 2C:44-
1(a)(9). The court found no mitigating factors. Pertinent to
this appeal, the court made the following findings regarding
aggravating factor five:
There is a substantial likelihood that
defendant was involved in organized criminal
activity, based upon the fact that he was
selling marijuana, that he did not manufacture
or grow. So he must have obtained it from
13 A-1870-16T1
someone else; and, hence, we have an organized
crime here.
We review sentencing determinations for abuse of discretion.
State v. Robinson,
217 N.J. 594, 603 (2014) (citing State v. Roth,
95 N.J. 334, 364-65 (1984)). The sentencing court must
"undertake[] an examination and weighing of the aggravating and
mitigating factors listed in [
N.J.S.A.] 2C:44-1(a) and (b)." Roth,
95 N.J. at 359; State v. Kruse,
105 N.J. 354, 359 (1987).
Furthermore, "[e]ach factor found by the trial court to be relevant
must be supported by 'competent, reasonably credible evidence'"
in the record. State v. Fuentes,
217 N.J. 57, 72 (2014) (quoting
Roth,
95 N.J. at 363).
We accord deference to the sentencing court's determination.
Id. at 70 (citing State v. O'Donnell,
117 N.J. 210, 215 (1989)).
We must affirm defendant's sentence unless
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Ibid. (quoting Roth,
95 N.J. at 364-65).]
We will remand for resentencing if the sentencing court fails to
provide a qualitative analysis of the relevant sentencing factors,
ibid. (citing Kruse,
105 N.J. at 363), or if it considers an
14 A-1870-16T1
inappropriate aggravating factor. Ibid. (citing State v. Pineda,
119 N.J. 621, 628 (1990)).
Aggravating factor five requires proof defendant is involved
in organized criminal activity. In applying this factor, the
sentencing court need not demonstrate defendant's criminal
behavior was related to his participation or membership in an
organized crime group, such as a gang. Rather the nature of the
offense, itself, may warrant a finding of organized criminal
activity, where, as here, a defendant is convicted of narcotics
distribution. See State v. Varona,
242 N.J. Super. 474, 491-92
(App. Div. 1990) (finding evidence in the record supported applying
aggravating factor five where defendant was convicted of
conspiracy to distribute cocaine); see also State v. Velez,
229 N.J. Super. 305, 316-17 (App. Div. 1988), aff'd as modified,
119 N.J. 185 (1990) (determining a fact-finding hearing was
unnecessary after a drug distribution conviction because defendant
was not manufacturing the drugs, and thus he had to be obtaining
them from other sources). While we appreciate defendant's argument
that the finding of aggravating factor five could apply in
"virtually every case," he fails to persuade us that the finding
was improper in the present case.
Conversely, to support her finding of aggravating factor five
the trial judge here, like the court in Velez, assumed defendant
15 A-1870-16T1
obtained the marijuana "from someone else" because he did not
manufacture or grow the marijuana he sold. The evidence adduced
at trial, and our prior decisions, support this finding.
Here, in his second statement to the detectives, defendant
repeatedly denied he grew marijuana. He also admitted he purchased
"loose" marijuana at a reduced rate and resold it at a profit.
Further, a loaded revolver was seized with marijuana from the
trunk of defendant's vehicle, and a large quantity of bundled cash
was seized from his glove compartment. From this evidence, we
agree the trial court properly concluded defendant was engaged in
the business of purchasing and selling marijuana, an illegal
business implicating organized criminal activity. Thus, we find
credible evidence supported the court's finding of aggravating
factor five. See Velez,
119 N.J. at 188.
We have considered defendant's remaining arguments in light
of the record and conclude they are "without sufficient merit to
warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).
Affirmed.
16 A-1870-16T1
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