STATE OF NEW JERSEY v. CARLOS SANTIAGO (2010)

Defendant Carlos Santiago appeals from the judgment of conviction and sentenced imposed following a jury trial at which he was found guilty of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count One);  and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (Count Two).   The State moved for imposition of a mandatory extended term based upon defendant's prior drug conviction.  N.J.S.A. 2C:43-6(f).  The judge granted the State's application and sentenced defendant to a term of imprisonment of ten years, with a four-year period of parole ineligibility on Count One, and a concurrent term of imprisonment of five years with a two-and-one-half year period of parole ineligibility on Count Two. The appropriate financial penalties were also imposed.

Defendant raises the following issues on appeal:

POINT I

THE GRAND JURY WAS NOT GIVEN SUFFICIENT EVIDENCE FOR AN INDICTMENT

POINT II

THE DEFENDANT WAS NOT AFFORDED DISCOVERY ESSENTIAL FOR THE PREPARATION OF HIS TRIAL.   HIS CONSTITUTIONAL SIXTH AMENDMENT RIGHT TO A FAIR TRIAL WAS VIOLATED

A.  THE STATE FAILED TO PROVIDE SURVEILLANCE LOCATIONS

B. THE STATE FAILED TO PROVIDE POSSIBLE PRE-ARREST DIGITAL DISCOVERY

POINT III

THE PROSECUTOR DEMONSTRATED PROSECUTORIAL MISCONDUCT

POINT IV

THE STATE DID NOT PROVIDE SUFFICIENT EVIDENCE TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT

POINT V

THE JURY WAS GIVEN INCOMPLETE JURY INSTRUCTIONS (NOT RAISED BELOW)

POINT VI

DEFENDANT'S EXTENDED TERM OF IMPRISONMENT IS EXCESSIVE

We have considered these arguments in light of the record and applicable legal standards.   We affirm.

I.

Defendant moved pre-trial to dismiss the indictment arguing that the State had not produced sufficient evidence before the grand jury and had failed to properly instruct the panel.   The trial judge acknowledged that the transcript of the proceedings revealed no instructions at all had been given to the grand jury, but concluded that it was likely the panel had previously received adequate instructions in other cases.   Since defendant failed to demonstrate any impropriety in the instructions, and the evidence adduced was sufficient, the judge concluded that there was no basis to dismiss the indictment.

The sole witness before the grand jury was Vineland police officer Danny Latorre.   Latorre testified that on the day in question, he “came in contact” with defendant when defendant “distribute[d] cocaine to [an] undercover” investigator.   Latorre had “visual observation of the undercover [officer] inside his vehicle” during the distribution, and approached defendant as he was “exiting the vehicle․”  When Latorre announced he was a police officer and told defendant to stop, defendant “started running,” “threw ․ a package on the ground ․ and tried to jump a fence.”   Latorre chased and apprehended defendant.   Latorre acknowledged that one of the “specimens” submitted to the State Police Laboratory was positive for cocaine.

Defendant argues that Latorre's grand jury testimony was limited to “inferences and conclusions,” that it differed from his actual testimony at trial, that Latorre's testimony was based upon hearsay, and that there was “no information ․ to connect the defendant with the specimen analyzed in the lab․”  We find the arguments unavailing.

“In seeking an indictment, the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime.”  State v. Hogan, 144 N.J. 216, 236 (1996).  “A trial court ․ should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.”  State v. Morrison, 188 N.J. 2, 12 (2006) (emphasis added).  “[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, ․ and in the absence of an abuse of that discretion, we will not disturb the determination of the trial court.”   State v. Mason, 355 N.J.Super. 296, 299 (App.Div.2002) (quotations and citations omitted).

While the evidence before the grand jury was scant, it addressed all of the elements of the two crimes ultimately charged in the indictment.   Latorre made visual observations of the undercover officer in his car during an exchange with defendant.¹  When Latorre approached defendant as he exited the vehicle, defendant ran and discarded a package.   It was implicit that the lab tests were performed upon the “specimen” retrieved.   Considering this evidence as a whole, the State had demonstrated, for purposes of returning an indictment, that defendant had possessed cocaine and distributed it to the undercover officer.   Moreover, to the extent that some of Latorre's testimony was hearsay, we have said that “an indictment will not be dismissed merely because hearsay or highly prejudicial evidence was heard by the grand jury.”   State v. Scherzer, 301 N.J.Super. 363, 428 (App.Div.), certif. denied, 151 N.J. 466 (1997) (quotation omitted).   Defendant's pre-trial motion to dismiss the indictment was properly denied.

II.

The testimony at trial revealed that on September 24, 2006, New Jersey State Police trooper Domingo De Los Santos was working undercover in conjunction with a narcotics investigation conducted by the Vineland Police Department.   De Los Santos was in plain clothes, drove an unmarked SUV, and wore a “body wire” that broadcast conversations between De Los Santos and subjects of the investigation.   A four-person surveillance team comprised of other officers monitored those transmissions.   The surveillance team and an “arrest team,” comprised of other officers, remained in “close proximity” to the undercover vehicle.

Around 10:30 a.m., the surveillance team directed De Los Santos to an intersection where two males were standing in front of a grocery store.   De Los Santos made eye contact with one of the men “[who] signaled to [him] to stop․”  The second male, later identified as defendant, approached the vehicle and began conversing with De Los Santos in Spanish.   De Los Santos told him that he wanted to purchase narcotics and defendant motioned to unlock the car door so he could enter.   Once in the car, defendant asked De Los Santos “how much [he] wanted[,]” to which he replied, “$20.”   De Los Santos handed defendant twenty dollars in exchange for crack cocaine that defendant removed from a plastic container located in his right pants pocket.

De Los Santos drove back to the intersection, and defendant exited the car.   De Los Santos relayed a description of defendant to the surveillance team and drove away from the scene.   After the transaction, De Los Santos met with members of the Vineland Police Department and turned over the drugs he had purchased from defendant.   Before the jury, he identified “a paper fold with some white substance inside” as the item he purchased from defendant.   It was later identified as cocaine.

De Los Santos made an in-court identification of defendant.   He acknowledged, however, that due to the lapse in time between the transaction and the trial date, he would be unable to identify defendant if he saw him on the street.

Sergeant Paul Shadinger, the supervisor of the surveillance team, was in another vehicle keeping De Los Santos's SUV under constant “visual ․ or radio contact.”   He saw defendant enter and exit the SUV, and monitored the exchanges between De Los Santos and defendant through the body wire.   When Shadinger heard the exchange take place, he radioed Latorre, who was part of the arrest team.

Latorre was parked in a gray minivan behind a business on the southeast corner of the intersection.   Latorre observed defendant exit De Los Santos's vehicle, approached him, and yelled, “Stop! Police!”  Defendant ran;  Latorre pursued him and saw defendant discard a green container from his right hand.   Latorre apprehended defendant and found the green container containing a plastic bag with a “white rock-like substance” that was later identified as cocaine.

Defendant elected not to testify and called no witnesses.   After summations and charge, the jury convicted defendant of both counts of the indictment.

(a)

Several months before the trial began, defense counsel sought to dismiss the indictment, or, alternatively, to postpone the trial date, based upon alleged discovery violations by the State.   She noted that she had requested, but had not received, the surveillance locations used by the officers, and digital photographs of defendant shown to De Los Santos for identification purposes.

The prosecutor indicated that he believed the surveillance and arrest teams were “mobile,” and that no fixed surveillance location existed.   He further indicated that no photographs of defendant were used for identification purposes.   The judge ordered the State to formally respond to the requests by letter, which the prosecutor did.

When trial commenced, defendant renewed his discovery motion regarding the surveillance location.   Defense counsel acknowledged that she received a letter from the prosecutor indicating that the operation was monitored through audio and visual surveillance, and that there was no single, fixed location.   The judge concluded that the physical location of the surveillance and arrest teams was not “a critical or crucial element” of the case, and denied the motion.

Defendant contends that his right to confrontation under the Sixth Amendment to the United States Constitution and Article 1 Paragraph 10 of our State Constitution was violated because he was not allowed to cross-examine the State's witnesses about the surveillance location.   We find the argument to be without merit.

As the Court said in State v. Garcia, 131 N.J. 67, 77-78 (1993), when the State seeks to assert a privilege against disclosure of a surveillance location, it must show “that disclosure would compromise an important public interest” and “must demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property.”  Ibid. The trial court must conduct an in camera proceeding to determine whether the standard has been met.  Id. at 78.   The standard of review we apply to the trial judge's decision is whether the judge abused his or her discretion.  Id. at 81.

Here, the State never asserted a privilege regarding the surveillance location.   Instead, it claimed that there was no fixed location since both teams of officers were mobile.   Before us, the State acknowledges that the trial prosecutor mistakenly told the judge and defense counsel that there was no fixed surveillance location for the arrest team.

Indeed, Latorre's testimony revealed that his vehicle was parked behind a business on the southeast corner of the intersection “the whole time.” ²  However, defense counsel thoroughly questioned Latorre about the visual observations he made from this location.   More importantly, Latorre did not conduct any visual surveillance while defendant was in De Los Santos's SUV;  rather, Shadinger shadowed the undercover vehicle in his own car, monitored the transmissions, and gave the signal to arrest defendant when he exited the SUV. The State relied upon this testimony, as well as De Los Santos's account of what transpired, to prove defendant sold drugs on the date in question.   To the extent the prosecutor erred in conveying the impression that both teams of officers were “mobile,” the error was harmless, and defendant was not denied the opportunity to challenge the State's proofs before the jury.

Defendant also contends that the State's failure to provide digital photographs of him allegedly used by De Los Santos for identification purposes was a discovery violation that requires reversal of his conviction.   During cross-examination of De Los Santos, the following exchange took place:

Q. And did you identify ․ using pictures later-all the people who were arrested?

A. [W]e were shown pictures of several of the subjects that were arrested that day.   I cannot recall ․ specifically if I was shown a picture of ․ defendant.   But, we were shown ․ back at Vineland's Police Department, ․ several pictures․  We didn't sign any pictures or anything like that.

․

Q. So, the suspects that we're talking about today would have been included in those pictures;  is that correct?

A. Yes, they should have been.

․

Q. The point of looking at those pictures was to confirm that those arrested were the people who you bought drugs from that day;  is that correct?

A. Yes, ma‘am.

․

Q. And, how many pictures were you shown?

A. I can't recall, ma‘am.   It's several pictures just from snapshots ․ just people standing, you know, through the city.

De Los Santos remembered the photos as being shown from “a digital display” in a camera.   He did not have any of the photos in his case file and never saw the images again.

Defense counsel immediately moved to dismiss the indictment based upon the prosecutor's alleged discovery violation.   However, the prosecutor represented that there were no photos preserved and that none were used to identify defendant.   The judge concluded that there was no discovery violation and denied the motion.

Before us, defendant concedes that the existence of any pre-arrest photos is only a “possib[ility].”   There is nothing in the record to suggest that the digital images De Los Santos referred to were preserved and that the prosecutor failed to produce them.

Moreover, any pre-trial identification of defendant through the use of a photograph is insignificant when considered in light of the actual identification testimony adduced at trial.   Shadinger observed defendant enter and exit the undercover vehicle.   Latorre arrested defendant as he fled after alighting from De Los Santos's SUV. Even if the trooper's in-court identification of defendant was equivocal, he described what occurred in his car minutes earlier, and only he and defendant were in the vehicle at the time.   Defendant's argument is unavailing.

In a separate point heading, defendant contends the prosecutor “demonstrated prosecutorial misconduct” through these alleged discovery violations regarding the surveillance location and the digital images.   In light of our previous conclusions, the argument lacks sufficient merit to warrant any further discussion.   R. 2:11-3(e)(2).

(b)

At the close of the State's case, defendant moved for judgment of acquittal and a directed verdict, essentially arguing that the State failed to prove his guilt beyond a reasonable doubt.³  The judge reviewed the evidence and denied the requests.   Before us, defendant reiterates the same argument.   The argument lacks sufficient merit to warrant extensive discussion.   R. 2:11-3(e)(2).   We add only the following brief comments.

We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, 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, 459 (1967).]

Here, De Los Santos testified regarding the purchase of cocaine he made directly from defendant.   Although his in-court identification was equivocal, defendant was the person identified entering the SUV;  his conversations with De Los Santos were heard as they occurred;  he was seen exiting the SUV and fled when asked to stop;  as he fled, he discarded a package that contained additional cocaine.   This evidence permitted the jury to find beyond a reasonable doubt that defendant was guilty of both charges contained in the indictment.   The motion for acquittal was properly denied.

(c)

Defendant argues for the first time on appeal that the judge committed reversible error by failing to provide the jury with “a charge of ‘mere presence.’ ”   Although defendant cites to no particular model charge, we assume he refers to portions of Model Jury Charge (Criminal), “Liability for Another's Conduct-No Lesser Included” (1995), which provides:

Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime.   It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice.   Presence is not in itself conclusive evidence of that fact.   Whether presence has any probative value depends upon the total circumstances.   To constitute guilt there must exist a community of purpose and actual participation in the crime committed.

While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime(s), without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same.   It depends upon the totality of the circumstances as those circumstances appear from the evidence.

Defendant argues that the judge should have given the “mere presence” charge because defendant denied commission of the offenses and only his “presence in the area, wearing ․ common clothing that resembled clothing worn by the original suspect precipitated his arrest.”

A “[d]efendant is required to challenge instructions at the time of trial.”   State v. Morais, 359 N.J.Super. 123, 134 (App.Div.2003).  “Where there is a failure to object, it may be presumed that the instructions were adequate.”   Morais, supra, 359 N.J.Super. at 134-35 (citing State v. Macon, 57 N.J. 325, 333 (1971)).   Therefore, reversal is required only when there is plain error, i.e., error “clearly capable of producing an unjust result․”  R. 2:10-2.

In the context of a jury charge, plain error requires demonstration of “[l]egal impropriety ․ prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.”

[State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

There was no basis in the evidence for the judge to charge some variation of the above-cited model jury charge.   Defendant was seen entering De Los Santos' vehicle, he engaged in a drug sale, exited the car, fled and was arrested at the scene.   The State did not contend that anyone else was involved, and defendant's assertion that he was mistaken for the “original suspect” is wholly unsupported by the evidence.   There was no error, much less plain error, in failing to give a “mere presence” charge.

III.

Lastly, defendant contends his sentence was excessive.   He argues that “there was no need” to impose “the maximum sentence” upon him.

After granting the State's motion for a mandatory extended term, N.J.S.A. 2C:43-6(f), the judge considered defendant's eighteen juvenile arrests that resulted in one diversion, nine adjudications of delinquency, two probation violations, and a parole violation.   The judge noted defendant's thirteen arrests as an adult, resulting in prior drug, firearms and escape convictions, two disorderly persons convictions, and a “history of” out-of-state arrests in Pennsylvania.   The judge found aggravating factors three, six, and nine.   N.J.S.A. 2C:44-1(a)(3) (risk that defendant will re-offend);  (6) (extent and seriousness of defendant's prior record);  and (9) (need to deter).

At sentencing, defendant argued that mitigating factors eight, nine, and eleven applied.  N.J.S.A. 2C:44-1(b)(8) (conduct not likely to recur);  (9) (defendant's “character and attitude” show he is unlikely to re-offend);  and (11) (excessive hardship to defendant's dependents).   The judge concluded no mitigating factors applied, and we find no reason to disturb this conclusion.

Defendant concedes that he was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).  As a result, he faced a maximum term of ten years imprisonment, and a five-year period of parole ineligibility.  Ibid.

As the Court recently noted, “adherence to the Code's sentencing scheme triggers limited appellate review.”  State v. Cassady, 198 N.J. 165, 180 (2009).  “[A]n appellate court should not substitute its judgment for that of the lower court, and ․ a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion.”   State v. Gardner, 113 N.J. 510, 516 (1989).   When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence “shock[s] the judicial conscience” in light of the particular facts of the case.  State v. Roth, 95 N.J. 334, 364-65 (1984).

In light of defendant's extensive juvenile and adult record, the sentence imposed was entirely justified.   We find no basis to reverse it.

Affirmed.

FOOTNOTES

FN1. To the extent Latorre's grand jury testimony differed from his trial testimony, we simply note that the jury had the opportunity to evaluate any inconsistencies and, nevertheless, concluded that defendant was guilty beyond a reasonable doubt.   Defendant's argument provides no basis upon which to reverse his conviction..  FN1. To the extent Latorre's grand jury testimony differed from his trial testimony, we simply note that the jury had the opportunity to evaluate any inconsistencies and, nevertheless, concluded that defendant was guilty beyond a reasonable doubt.   Defendant's argument provides no basis upon which to reverse his conviction.

FN2. This testimony provoked a motion for a mistrial, which was denied.   The propriety of that ruling is not raised on appeal..  FN2. This testimony provoked a motion for a mistrial, which was denied.   The propriety of that ruling is not raised on appeal.

FN3. Defendant also renewed his motion for a mistrial based upon alleged discovery violations.   This was again denied..  FN3. Defendant also renewed his motion for a mistrial based upon alleged discovery violations.   This was again denied.

PER CURIAM