STATE OF NEW JERSEY v. RHADAMES DELACRUZ YNOA (2012)

A Bergen County Grand Jury returned a multi-count indictment charging defendant, Rhadames Delacruz–Ynoa, with third degree possession of a controlled dangerous substance, cocaine with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and N.J.S.A. 2C:35–5(b)(3) (count one);  third degree possession of cocaine, with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35–7 (count two);  second degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35–7.1(a) (count three);  and third degree possession of cocaine, N.J.S.A. 2C:35–10(a)(1) (count four).

Count two was dismissed before trial.   After a four-day trial, the jury returned a guilty verdict on counts one, three and four.   The judge denied defendant's motion for a new trial based on a claim of ineffective assistance of counsel.   Following appropriate mergers of counts one and four into count three, the judge sentenced defendant to five years imprisonment, as well as mandatory fines and penalties.

On appeal, defendant argues that trial counsel was ineffective because counsel withdrew a motion to disclose the identity of the confidential informant (CI);  did not raise the affirmative defense of entrapment;  and did not object to the detective's testimony regarding the police measurement of the distance between the public park and the drug transaction.   Defendant also argues that the trial judge erred by limiting cross-examination regarding the CI;  not permitting the entrapment defense;  and not properly responding to a jury question.   We reject defendant's claims and affirm.

The facts as adduced from the record are as follows.   On November 25, 2008, Detective Justin Bertone of the Lodi Police Department met a CI at the Lodi police station to set up a controlled buy of narcotics.   The CI made a telephone call to a man known as “Flako,” later identified as defendant.   Defendant agreed to sell the CI nine grams of crack cocaine for $400.   Defendant told the CI to meet him at the Bank of America parking lot in approximately thirty minutes.

After the phone call, Bertone held a briefing with other officers, where he informed them of the details regarding the drug transaction.   The officers agreed to use an “open [telephone] call,” in which an officer would call Bertone's cell phone and Bertone would place his phone on “mute” during his meeting with defendant, allowing the officer to hear the conversation.   The officers also agreed that Bertone would signal for backup by saying, “all is good” or a similar phrase.

Once backup units were in place, Bertone, dressed in plain clothes, and the CI walked to the parking lot.   Soon, the CI received a cell phone call from defendant, who stated that he would arrive shortly.   Defendant drove into the parking lot in a blue-green Toyota 4Runner.   The CI confirmed that the driver was defendant, and the CI and Bertone approached the vehicle and entered into the backseat.   A seventy to seventy-five year-old Hispanic man named Luis Vargas also was in the car.

While inside the vehicle, defendant and Bertone engaged in a drug-related conversation, and the detective handed defendant $400.   The detective then asked where the drugs were located.   Defendant lifted a yellow rag on the floor behind the center console, revealing eighteen bags of a white powder-like substance, later identified as crack cocaine.   At that point, Bertone said, “all is good,” signaling for defendant's arrest.

As defendant drove off, Lieutenant Ronald Policastro, who heard the conversation and the arrest signal, ordered the backup units to stop defendant's vehicle.   Police vehicles blocked the parking lot exits, and the officers removed and handcuffed all four occupants of defendant's vehicle.   When defendant was removed, he dropped the cash in the parking lot, where Policastro retrieved it.   Officers also secured the drugs, which were later confirmed to be 14.75 grams of cocaine.

At police headquarters, Policastro contacted Pura Vargas, the owner of the Toyota and daughter of Mr. Vargas, and arranged for her to pick up the vehicle and her father.

Following indictment, and after the plea cut-off status conference, the first assigned counsel took ill and the case was assigned to trial counsel.

On the day before trial began, defense counsel verbally moved for disclosure of the CI's identity so he could present an entrapment defense.   The judge ruled that the entrapment defense was not timely pled and offered counsel the opportunity to argue his motion for the CI identification the next day.   Defense counsel withdrew the motion.   On the next scheduled trial day, defense counsel presented the CI on the witness list as a fact witness to offer testimony on what occurred in the vehicle during the drug transaction.   The judge ruled that prior to introducing any such testimony, there would be a hearing for counsel to demonstrate that the witness' testimony was probative and presented in a manner the jury would not discover that the witness was the CI. Ultimately, counsel did not present this witness.

At trial, the State presented testimony from Bertone and Policastro.   Defendant did not testify, but he presented testimony from Pura Vargas who testified that she allowed defendant to use her vehicle.

Prior to sentencing, defendant obtained new counsel who filed a motion for a new trial, supplemented by a thirty-nine page brief, alleging ineffective assistance of both trial counsel.   In denying the motion, the judge rejected the argument that trial counsel was unprepared or unresponsive to defendant;  rather the judge found that defendant's trial counsel had been effective and had done an “admirable job.”   The judge further stated that trial counsel had sufficient time to prepare for trial despite being a substitute for defendant's original attorney.   The judge determined that trial counsel was not ineffective for not filing a motion for disclosure of the CI's identity, and that even if trial counsel had filed the motion, it would not have changed the outcome of the case.   Ultimately, the court found there was no prima facie showing of ineffective assistance of counsel.¹  Further, the judge denied sentencing counsel's request for an evidentiary hearing on trial counsel's alleged ineffective assistance.

On appeal, defendant raises the following arguments:

I.  THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS BY HIS DEFENSE COUNSEL'S (1) WITHDRAWAL OF DEFENDANT'S MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT, (2) FAILURE TO RAISE THE AFFIRMATIVE DEFENSE OF ENTRAPMENT, (3) FAILURE TO CHALLENGE THE ADMISSIBILITY OF TESTIMONY ABOUT PARK MEASUREMENTS WHICH WERE NOT DISCLOSED IN DISCOVERY, AND (4) FAILURE TO PROPERLY PREPARE THE CASE.

A. Defense Counsel Provided Ineffective Assistance When He Withdrew Defendant's Motion to Disclose the Confidential Informant's Identity.

B. Defense Counsel Provided Ineffective Assistance When He Failed to File a Timely Notice of Defendant's Intent to Raise Entrapment as a Defense.

C. Defense Counsel Provided Ineffective Assistance When He Failed to Object to Detective Bertone's References to Measurements that the Prosecutor Failed to Disclose in Discovery.

II. THE TRIAL COURT ERRED WHEN IT LIMITED THE DEFENDANT'S CROSS–EXAMINATION OF THE STATE WITNESSES ON THE ISSUE OF THE CONFIDENTIAL INFORMANT.

III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER WHETHER THE INTEREST OF JUSTICE REQUIRED ALLOWING THE DEFENDANT TO PRESENT EVIDENCE OF ENTRAPMENT (Not Raised Below).

IV. THE TRIAL COURT ERRED WHEN IT FAILED TO CLARIFY THE MEANING OF ITS JURY INSTRUCTIONS IN RESPONSE TO THE JURY'S QUESTION (Not Raised Below).

A.

We first address defendant's contention that his trial counsel were ineffective.  “Our courts have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.”  State v. Preciose, 129 N.J. 451, 460 (1992).   We decline to address defendant's arguments without an adequate record.   Defendant must raise any such ineffective assistance of counsel claims through a petition for post-conviction relief under Rule 3:22–1.

B.

Next, we turn to the asserted trial errors.   Defendant argues that the court violated his right to a fair trial by not allowing defense counsel to explore Bertone's knowledge of the CI on cross-examination.   In particular, defendant argues if the judge had permitted defense counsel to cross-examine the detective regarding the CI, Bertone “could have shed light on” the circumstances surrounding the arrest, “particularly since the [CI] was allegedly present” for the drug transaction.

This court reviews evidential rulings of a trial court under an abuse of discretion standard.  State v. Marrero, 148 N.J. 469, 483–84 (1997).  “A trial court's ruling will not be upset unless there has been an abuse of that discretion, i.e., there has been a clear error of judgment.”  State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d 803 (1989).

During Bertone's cross-examination, defense counsel inquired about the set-up of the drug transaction, the CI and her role in the deal.   The relevant colloquy follows:

Q Officer, is it your testimony that the investigation which led up to the time when you met the alleged drug dealer in the parking lo[t] was provided from a confidential informant?

A That's correct.

Q And your sole investigation up until that—up until that time was provided by the confidential informant?

A That's correct.

Q What is your knowledge of the confidential informant and how she knows the defendant?

MR. FINLEY:  Objection, Judge.

THE COURT:  Sustained.

․

Q Now is it—is it fair to say that your sole identification of the alleged drug dealer here is solely based on what the confidential informant told you?

A Prior to the arrest?

Q Yes.

A Yes.

Q And is it—your—is it fair and accurate to say that your sole identification of the vehicle he was driving that day was based upon what the confidential informant provided to you prior to the arrest?

A That's correct.

․

Q Are you also aware that my client does not speak English at all?

A That's not possible.

Q Are you aware that—

A Because—

Q —every time I had to speak with him—

THE COURT:  Well, let him finish his answer.   Want to finish your answer?

THE WITNESS:  Yes. When the confidential informant spoke with him, he did speak with an accent but he did speak English.

BY MR. NISIVOCCIA:

Q Now[,] what country of origin was the confidential informant from?

MR. FINDLEY:  Objection, Judge.

THE COURT:  I'll allow that, just limited to that, if you know.

BY MR. NISIVOCCIA:

Q [W]hat country of origin was ․ the confidential informant?

A American.

Q Did she speak Spanish?

MR. FINDLEY:  Objection.

THE COURT:  Sustained.

BY MR. NISIVOCCIA:

Q Now—

THE COURT:  You can ask if she spoke Spanish at the time.

BY MR. NISIVOCCIA:

Q Now you testified on direct that it was broken English.

A I didn't say broken English.   I said with an accent.

Q And what—can you describe what you mean by with an accent.

A Somewhat of a Spanish accent or an accent of another language.

[ (Emphasis added).]

There is nothing in this record to support defendant's claim that defendant was denied a fair trial.   The trial judge allowed Bertone to answer general questions regarding the information that the CI provided, as well as her nationality.   We discern no abuse in the exercise of his discretion in sustaining the objection to the question, “What is your knowledge of the [CI] and how she knows the defendant?”   This question impermissibly sought information that could have disclosed to the jury the identify of the CI. See State v. Roundtree, 118 N.J.Super. 22, 30–31 (App.Div.1971) (there is “a statutory privilege to withhold from disclosure the identity of persons furnishing information to law enforcement officers concerning the commission of crime”);  see also N.J.S.A. 2A:84A–28.

C.

Defendant did not raise the final two issues before the trial judge.   Therefore, we review those arguments under the plain error standard.   R. 2:10–2;  State v. Torres, 183 N.J. 554, 564 (2005);  State v. Macon, 57 N.J. 325, 337 (1971).   We will reverse on the basis of an unchallenged error only if it was “clearly capable of producing an unjust result[.]”  R. 2:10–2;  State v. Castagna, 187 N.J. 293, 312 (2006);  Macon, supra, 57 N.J. at 337.   We conclude that upon a complete review of the trial record, none of the errors asserted in the aforementioned points rise to the level of plain error.

First, counsel contends that the judge erred when he failed to consider that “the interest of justice” required allowing the defendant to present evidence of entrapment despite defendant's non-compliance with the seven-day notice required by Rule 3:12–1.   This claim has no merit.

Rule 3:12–1 provides that a defendant intending to raise the defense of entrapment must give written notice to the prosecutor “[n]o later than seven days before the arraignment/status conference․  If a party fails to comply with this Rule, the court may take such action as the interest of justice requires” including an adjournment or an extension of time.   The Rule, however, does not obligate a judge to sua sponte consider such relief.   A “duty” for the court to act sua sponte “arises only when the record evidence clearly indicates the need for or clearly warrants [action].”   See State v. Rivera, 205 N.J. 472, 489 (2011).   No such need has been established here.

Lastly, defendant argues that the judge erred when he refused to clarify the term “intent to distribute” after the jury requested explanation of the phrase in “layman's terms.”   This contention lacks sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add only the following.

Appropriate and proper jury instructions are essential to a fair trial in a criminal case.  State v. Reddish, 181 N.J. 553, 613 (2004).   The New Jersey Supreme Court has explained that “ ‘[t]he trial court has an absolute duty to instruct the jury on the law governing the facts of the case.’ ”  State v. Koskovich, 168 N.J. 448, 507 (2001) (alteration in original) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)).  “It is firmly established that ‘[w]hen a jury requests a clarification,’ the trial court ‘is obligated to clear the confusion.’ ”  State v. Savage, 172 N.J. 374, 394 (2002) (alteration in original) (quoting State v. Conway, 193 N.J.Super. 133, 157 (App.Div.), certif. denied, 97 N.J. 650 (1984)).   Nonetheless, when a trial court instructs the jury in accordance with relevant legal principles, the reviewing court should “presume that the jury understood and followed those instructions.”  Savage, supra, 172 N.J. at 394.

Here, when presented with the question, the judge recharged the jury with the instruction regarding intent to distribute and the other elements of count one.   The charge included an explanation of the meaning of “distribute” and “intent.”   There were no objections from counsel,² and the jury did not ask for any further clarification.   Upon our review of the record, we conclude that the instruction was proper and appropriate.

Affirmed.

FOOTNOTES

FN1. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984) (setting forth the two-prong standard for an ineffective assistance of counsel claim);  see also State v. Fritz, 105 N.J. 42, 52 (1987) (adopting the Strickland standard in New Jersey)..  FN1. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984) (setting forth the two-prong standard for an ineffective assistance of counsel claim);  see also State v. Fritz, 105 N.J. 42, 52 (1987) (adopting the Strickland standard in New Jersey).

FN2. With respect to a late claim of error in a jury instruction, “plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Singleton, 211 N.J. 157, 182–83 (2012) (citations omitted)..  FN2. With respect to a late claim of error in a jury instruction, “plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Singleton, 211 N.J. 157, 182–83 (2012) (citations omitted).

PER CURIAM