STATE OF NEW JERSEY v. MARIO CABRERA-PENA

NOT FOR PUBLICATION WITHOUT THE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-3678-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIO CABRERA-PENA,

     Defendant-Appellant.
_________________________

                   Submitted March 8, 2022 – Decided March 24, 2022

                   Before Judges Fisher, Currier, and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 16-07-0516.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Scott M. Welfel, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   William A. Daniel, Union County Prosecutor, attorney
                   for respondent (Milton S. Leibowitz, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Mario Cabrera-Pena, and two others, 1 were charged with first-

degree robbery,  N.J.S.A. 2C:15-1, second-degree conspiracy to commit robbery,

 N.J.S.A. 2C:5-2, and other offenses arising from a holdup of a gas station in

Rahway at approximately 1:00 a.m., on April 10, 2016. After the denial of their

motions to suppress physical evidence and statements made to police, the three

defendants were tried together. Defendant Mario Cabrera-Pena was acquitted of

all the charges except third-degree theft, a lesser-included offense of the robbery

charge. The judge imposed a five-year probationary sentence.

      Defendant appeals, arguing:

            I. THE TRIAL JUDGE ERRED IN DENYING THE
            MOTION TO SUPPRESS THE EVIDENCE AS
            THERE WAS NO REASONABLE SUSPICION FOR
            THE STOP, THE OFFICER'S UNLAWFUL SEARCH
            OF THE VEHICLE WAS NOT A VALID
            PROTECTIVE SWEEP, AND THE ULTIMATE
            CONSENT SEARCH OF THE VEHICLE WOULD
            NOT HAVE OCCURRED BUT FOR THE INITIAL
            UNLAWFUL SEARCH AND WAS THEREFORE
            NOT INEVITABLE.

            II. THE COURT'S RESPONSES TO THE JURY'S
            NOTE THAT IT WAS IRRECONCILIABLY
            DEADLOCKED AND A SUBSEQUENT NOTE
            THAT AT LEAST ONE JUROR WAS NOT BEING


1
  The appeals of the other two defendants – Jose Mena (A-3508-18) and Angel
Nunez-Hernandez (A-539-19) – are disposed of by way of separate opinions also
filed today.
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            OBJECTIVE IMPROPERLY COERCED THE JURY
            TO OVERCOME ITS DEADLOCK.

            III. THE COURT ERRONEOUSLY PRECLUDED
            DEFENDANT FROM TESTIFYING ABOUT HIS
            MENTAL FACULTIES AFTER CONSUMING BEER
            AND MARIJUANA, EXCLUDING THE ONLY
            REASONABLE EXPLANATION OF HOW HE
            FAILED TO REALIZE HIS CO-DEFENDANT WAS
            COMMITTING A ROBBERY, AND THEREBY
            DEPRIVED HIM OF HIS CONSTITUTIONAL
            RIGHT TO PRESENT A COMPLETE DEFENSE.

We reject defendant's first two points for the reasons expressed in the separate

appeal of a co-defendant that was also filed today. See State v. Nunez-

Hernandez, No. A-539-19 (App. Div. 2022). To the extent defendant raises any

additional arguments about the denial of his motion to suppress based on the

stop or search of the vehicle or any additional arguments about the judge's

responses to notes sent by the deliberating jury, we find they have insufficient

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

      We also reject defendant's third point, in which he argues the judge

erroneously precluded him from testifying about his mental faculties as the

result of consuming beer and marijuana on the night of the offense. Defendant

testified at trial and he based his defense to the charges on a claim that he did

not realize Mena was engaged in a robbery of the gas station.



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      Defendant argues that the limits placed on his testimony deprived him of

his constitutional right to present a complete defense. The State counters by

arguing this testimony was an attempt to assert the affirmative defense of

voluntary intoxication, which was not proper because defense counsel never

provided the State with written notice of that defense as required by Rule 3:12-

1.

      To be sure, both the Federal and State Constitutions guarantee the accused

"a meaningful opportunity to present a complete defense." Crane v. Kentucky,

 476 U.S. 683, 690 (1986). The accused has a "fundamental right to elicit

testimony favorable to the defense before the trier of fact" and that right is

"essential to the due process right to a 'fair opportunity to defend against the

State's accusations,' and thus 'among the minimum essentials of a fair trial.'"

State v. Garron,  177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi,  410 U.S. 284, 294 (1973)). That right, "however, may . . . bow to accommodate

other legitimate interests in the criminal trial process, such as established rules

of evidence and procedure designed to ensure the fairness and reliability of

criminal trials." Ibid. (internal quotation marks omitted). One of those rules is

Rule 3:12-1, which obligates a defendant to "serve written notice on the

prosecutor if the defendant intends to rely on . . . [i]ntoxication, [ N.J.S.A.] 2C:2-


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                                         4
8(d) . . . [n]o later than seven days before the Initial Case Disposition

Conference." Defendant served no such notice.

      Notwithstanding the failure to serve notice of an intoxication defense,

defense counsel elicited from defendant that he drank eight or nine beers on the

evening of the offense. Defense counsel then asked whether, after consuming

that many beers, defendant could "feel the [e]ffects" of same. At that point the

State objected, arguing the defense was trying to establish an intoxication

defense of which the State had no prior notice. Defense counsel argued that she

was merely trying to show the effect of the alcohol on defendant's "mental state."

The judge sustained the State's objection and struck counsel's question regarding

how the alcohol made defendant feel. Defense counsel was permitted to elicit

that defendant had been smoking marijuana on the evening of the offense.

      We find no error or abuse of discretion in the trial judge's rulings nor do

we view the limitations placed on defendant's testimony, if erroneous, as

harmful to the defense. The judge correctly precluded defendant from doing

indirectly what he had chosen not to do directly, namely, to present an

intoxication defense. At the same time, defendant was allowed to testify about

his consumption of alcohol and use of marijuana, from which the jury could

determine defendant's state of mind during the events in question.


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      To the extent defendant made any other arguments we have not expressly

addressed, we find they are without sufficient merit to warrant further discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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