STATE OF NEW JERSEY v. MARVIN D. CRUZ

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3154-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARVIN D. CRUZ,

     Defendant-Appellant.
____________________________

              Submitted June 4, 2018 – Decided June 12, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              12-02-0333.

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen P. Hunter, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

PER CURIAM
     Defendant Marvin D. Cruz appeals from his conviction after a

jury trial for unlawful possession of .37 grams of cocaine.


N.J.S.A. 2C:35-10(a)(1).     We affirm.

     We glean the salient facts from the one-day trial. On October

20, 2011, at approximately 12:15 p.m., State Police Sergeant

Richard Shelton was on routine traffic patrol, traveling in a

marked police vehicle on Liberty Street in Long Branch, when he

observed a van travelling in the opposite direction "coming head-

on at [him]."     The two occupants were not wearing seat belts.

Shelton stopped the vehicle, but neither man could produce a

driver's   license.1   The    men   explained   they   were   performing

construction work at a nearby church, a licensed driver drove them

to the job site that morning, and they were using the van to return

from their lunch break.

     While Shelton was writing summonses for the two occupants of

the van, a third man, later identified as defendant, approached

the driver's side window of the police vehicle.        Shelton testified

defendant's action "kind of freaked [him] out" because he was

placed "at a tactical disadvantage[]" when defendant suddenly

approached him.   Defendant handed Shelton a driver's license and



1
 The sergeant later explained he asked both occupants for licenses
to avoid having the van towed.


                                    2                            A-3154-16T3
said   "I'm    the   one,"   which   the   sergeant   inferred   as   meaning

defendant was the individual who had driven the other two men to

the job site earlier that day.              Shelton entered defendant's

information into his vehicle's computer, and determined he had an

outstanding traffic warrant.2

       A search incident to defendant's arrest revealed a black

wallet containing a bag of white powder in the billfold section.3

Suspecting the substance was cocaine, Shelton retained the bag as

evidence, and returned the wallet and the remainder of its contents

to defendant because the items had "no evidentiary value."                   On

cross-examination, Shelton could not recall specific details about

the contents of the wallet, but stated, "There was a small amount

of money.      There were some sort of cards, you know, the usual

stuff that would be in a man's wallet."

       On redirect examination, Shelton explained while he could not

recall the particular items in the wallet, he remembered they

belonged to defendant.         On re-cross examination, the following

colloquy between defense counsel and Shelton ensued:

              [DEFENSE COUNSEL]: . . . if you don't recall
              what's in the wallet and you didn't document

2
  The jurors were not informed defendant had an outstanding
warrant, but were instructed his arrest was lawful, and they should
not speculate about the basis of his arrest.
3
  On appeal, defendant does not challenge denial of his motion to
suppress the evidence seized subsequent to his arrest.

                                       3                              A-3154-16T3
          it any way, how can you say they belong to
          [defendant]?

          [SHELTON]: Because I took note, I looked at
          what was in the wallet.      I don't remember
          specifically. I couldn't tell you [if] there
          was [a] Monmouth County Library card in there,
          I couldn't tell you there was, you know, a
          Visa card. But it was his wallet. His stuff
          was in there. It was his wallet. I took it
          out of his pocket.    I don't recall exactly
          what it was, it was five years ago.

          [DEFENSE COUNSEL]:   You took it out of his
          pocket. So when you took it out of his pocket
          you assumed it was his wallet, is that
          correct?

          [SHELTON]: Yes.   It was his wallet, yeah.

          [DEFENSE COUNSEL]: Because you found it in his
          pocket?

          [SHELTON]: Yes.


     Thirty-five minutes after the jurors commenced deliberations,

they found defendant guilty of third-degree possession of cocaine.

On February 17, 2017, defendant was sentenced to a one-year, non-

custodial probationary term.   This appeal followed.

     On appeal, defendant argues:

          POINT I

          THE   POLICE  OFFICER'S   OPINION   TESTIMONY
          IMPROPERLY INVADED THE PROVINCE OF THE JURY
          AND WAS PLAIN ERROR. U.S. CONST. AMENDS. VI,
          XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10.
          (Not Raised Below)



                                4                          A-3154-16T3
           POINT II

           [THE] TRIAL COURT     ERRED TO THE DEFENDANT'S
           PREJUDICE BY GIVING   THE INSTRUCTION ON FAILURE
           TO TESTIFY WITHOUT     THE DEFENDANT'S CONSENT.
           U.S. CONST. AMEND.    XIV; N.J. CONST. ART. I,
           ¶ 1.
           (Not Raised Below)

     Because defendant did not contemporaneously object to the

issues he now raises on appeal, we evaluate both newly-minted

arguments under a plain error standard of review.         R. 2:10-2;

State v. Singleton, 
211 N.J. 157, 182-83 (2012).          Under that

standard, a conviction will be reversed only if the error was

"clearly capable of producing an unjust result[,]" i.e., if it was

"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. Taffaro, 
195 N.J. 442, 454 (2008) (citation omitted).        A

defendant's failure to object leads to the reasonable inference

the issue was not significant in the context of the trial.      State

v. Macon, 
57 N.J. 325, 333 (1971).

     Initially, defendant argues Shelton's testimony concerning

defendant's ownership of the wallet was improper opinion testimony

because the sergeant "could not remember any specifics about the

wallet."   As such, defendant contends that testimony runs afoul

of the Court's holding in State v. McLean, 
205 N.J. 438 (2011).

Defendant's argument is misplaced.


                                   5                          A-3154-16T3
     In McLean, our Supreme Court considered whether an officer's

testimony, admitted over defense objections, about the defendant's

involvement     in    drug    transactions     constituted       permissible     lay

opinion testimony pursuant to N.J.R.E. 701.                   Id. at 448.      After

analyzing the differences between expert opinion and lay opinion

testimony,    the     Court       concluded   the    officer's     testimony     was

impermissible lay opinion because it was "an expression of a belief

in defendant's guilt" and "presumed to give an opinion on matters

that were not beyond the understanding of the jury."                  Id. at 463.

The Court also expressed concern that the testimony was elicited

after   a    question     referring      to   the     officer's     training     and

qualifications, thereby underscoring it was expert testimony.

Ibid.

     None of those concerns is implicated here.                   Shelton did not

opine   about        defendant's      guilt    over     objection     on     direct

examination.         Rather, the sergeant responded affirmatively to

defense counsel's line of inquiry that he assumed the wallet

belonged to defendant because Shelton physically removed it from

defendant's person.          Defense counsel did not move to strike any

of Shelton's answers to the three questions he posed on re-cross

examination.    We discern no error, less plain error, in permitting

Shelton's    testimony       in    response   to    defense   counsel's     pointed

inquiry.

                                          6                                 A-3154-16T3
     Further, we agree with the State that when a defendant later

claims a trial court was mistaken for allowing him to pursue a

chosen strategy -- a strategy not unreasonable on its face but one

that did not result in a favorable outcome -- his claim may be

barred by the invited-error doctrine.          See State v. A.R., 
213 N.J.
 542, 561-62 (2013) ("[T]rial errors that were induced, encouraged

or acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal . . . ." (citation omitted)).

The invited-error doctrine is intended to "prevent defendants from

manipulating the system" and will apply "when a defendant in some

way has led the court into error" while pursuing a tactical

advantage   that    does   not   work   as   planned.   Ibid.   (citation

omitted).     The    doctrine     "is   grounded   in   considerations    of

fairness," but will not apply automatically if to do so would

"cause a fundamental miscarriage of justice."             Ibid. (citation

omitted).

     Secondly, defendant claims he was prejudiced because the

trial court instructed the jury about his decision not to testify,

without seeking his consent.            The record does not support his

argument.

     Following the trial court's denial of defendant's motion for

acquittal, defense counsel requested the court voir dire defendant

regarding his right to testify outside the presence of the jury.

                                        7                          A-3154-16T3
During that colloquy, defendant did not ask the judge to refrain

from giving the no averse inference charge.         Rather, defendant

responded, in pertinent part, to the court's inquiry as follows:

          THE COURT:   And you understand that at the
          appropriate time the [c]ourt will give the
          jury   an  instruction   that   you  have a
          constitutional right to remain silent?

          THE DEFENDANT:    Yes, sir.

          THE COURT: And that they cannot consider for
          any purpose or in any manner in arriving at
          their verdict that you did not testify. You
          understand that?

          THE DEFENDANT:    Yes, sir.

     Further,    during   its   final    jury   charge,   the   court's

instruction regarding defendant's decision not to testify closely

tracked Model Jury Charges (Criminal), "Defendant's Election Not

to Testify" (rev. May 4, 2009).       Defendant did not object to the

charge at trial or during the charge conference.

     Defendant's belated reliance on State v. Smith, 
100 N.J.

Super. 420, 424-25 (App. Div. 1968), lacks merit.         In Smith, the

trial court refused the defendant's explicit request for a no

adverse inference charge regarding his decision not to testify.

Id. at 422.     We reversed, holding a defendant is entitled to a

jury instruction that his failure to testify does not create a




                                  8                             A-3154-16T3
presumption of guilt, when he requests the instruction.          Id. at

425.

       Here, unlike Smith, the trial court did not refuse to give

an instruction requested by defendant.       Nor did the court give the

instruction over defendant's objection.        Rather, the judge asked

defendant whether he understood the jurors would be instructed

about defendant's constitutional right to remain silent, and they

could not consider defendant's decision in arriving at their

verdict.   Defendant politely responded "Yes, sir" to both of those

questions.    He did not request the court to refrain from giving

the instruction after the court expressly advised defendant it

would give such a charge.     Nor did he object to the instruction

at the charge conference or at trial.    See Lakeside v. Oregon, 
435 U.S. 333, 339 (1978) ("It would be strange indeed to conclude that

this   cautionary   instruction   violates   the   very   constitutional

provision it is intended to protect."); State v. McNeil, 
164 N.J.

Super. 27, 31 (App. Div. 1978).

       Moreover, pursuant to Rule 1:7-2, a defendant is required to

challenge instructions at the time of trial.              "Generally, a

defendant waives the right to contest an instruction on appeal if

he does not object to the instructions as required by Rule 1:7-

2."    State v. Adams, 
194 N.J. 186, 206-07 (2008).        "Where there


                                   9                             A-3154-16T3
is a failure to object, it may be presumed that the instructions

were adequate."    State v. Morais, 
359 N.J. Super. 123, 134-35

(App. Div. 2003) (citing Macon, 
57 N.J. 325 at 333).    Moreover,

the failure to "interpose a timely objection constitutes strong

evidence that the error belatedly raised [] was actually of no

moment."   State v. White, 
326 N.J. Super. 304, 315 (App. Div.

1999).   Defendant made no such challenge here.

     In short, defendant has failed to demonstrate the court's

jury instruction on his decision not to testify constituted legal

impropriety, which prejudiced his substantial rights.    State v.

Burns, 
192 N.J. 312, 341 (2007). Consequently, there was no error,

let alone plain error, capable of producing an unjust result.

Adams, 
194 N.J. at 207 (citing R. 2:10-2).

     Affirmed.




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