The opinion
NOT FOR PUBLICATION WITHOUT THE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-5386-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER T. BROWN,
Defendant-Appellant.
__________________________
Submitted June 2, 2021 – Decided June 16, 2021
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment No. 16-05-
0181.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Renee Robeson, Hunterdon County Prosecutor,
attorney for respondent (Jeffrey L. Weinstein, Assistant
Prosecutor, on the briefs).
Appellant filed a pro se supplement brief.
PER CURIAM
Defendant Christopher T. Brown appeals from his convictions of third-
degree conspiracy to possess a controlled dangerous substance (CDS) with
intent to distribute, N.J.S.A. 2C:5-2(a)(1), N.J.S.A. 2C:35-5(a)(1), and N.J.S.A.
2C:35-5(b)(3); and third-degree possession of CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). We affirm.
On March 28, 2016, police responded to a call regarding a possible drug
overdose and discovered Mitchell Levine deceased. The cause of death was
later determined to be a heroin overdose. Near Levine's body, police recovered
heroin, drug paraphernalia, and his cell phone.
Pursuant to a search warrant, Hunterdon County Prosecutor's Office
Detective Brian Jados analyzed the information from the cell phone and
identified twenty text messages sent on March 24 and 25, 2016, between
Levine's device and a number ending in 1129, which had no associated name.
However, the first message sent from Levine to 1129 said, "Hi Chris. How is it
going?" Then the following conversation took place:
1129: You still want the two.
Levine: No, I can't swing the money between my
hospital bills and my car. I don't know how I'm even
going to pay all of them. Can you do one?
2 A-5386-17
1129: Yeah.
Levine: Call me.
Levine: What time do you think you'll have it?
1129: Probably going to be some time later because
now my man saying he waiting on it himself.
Levine: Okay. Let me know when you hear anything.
1129: Got you.
Levine: Awesome.
Levine: Did you get it?
1129: On my way.
Levine: How long?
1129: 45 minutes.
Levine: K.
1129: Pulling up.
Hunterdon County Prosecutor's Office Lieutenant Ryan Neiber examined
the entirety of the thread and determined the conversations could be evidence of
drug activity. The conversations between 1129 and Levine showed the last drug
transaction occurred three days before Levine's body was discovered.
Pursuant to a communications data warrant, police obtained permission to
use Levine's telephone and pose as Levine. Neiber began communicating with
3 A-5386-17
1129 in order to arrange a drug buy. On April 3 and 4, 2016, the following text
correspondence occurred:
1129: Hey, Mitch, how is it going need to borrow
$500,000 till Wednesday, but I'll settle for $500 if
possible.
....
1129: Hey, what's up, Mitch? I still need that favor if
you can help me out. Let me know if you can while it's
still early, okay?
1129: You up yet? Did you get my message? Let me
know something if you can't or can or you can just need
to know.
Neiber (as Levine): Hey Chris, how is it going?
1129: What's up, Mitch?
Neiber: Will you be able to get here tomorrow?
1129: Weather supposed to be bad but I'll try.
Neiber: Let me know as soon as you can.
Neiber: Weather is going to be bad.
1129: Okay. Will do. What you getting into today?
Neiber: Can you get to?
1129: Yeah, I got it.
Neiber: A long way back from CT.
4 A-5386-17
1129: Okay. Let me know when you get home.
Neiber: Going to be late.
1129: What time do you think?
Neiber: My friend driving we just left and he's looking
to stop for food.
1129: Okay. What times are you thinking you'll be
here?
Neiber: Around 11:00.
Neiber: Just left.
Neiber: I looked at weather looks like just showers in
the morning.
Neiber: You thin [sic] you can be here by 10:00, 11:00?
1129: Well, we'll try in the morning.
Neiber: Okay.
1129: I might be up by you so still let me know when
you get home, okay.
Neiber: K. Cool.
Neiber: Hey Chris, we've been at eh [sic] garage for
about [two] minutes with my friend's car. It's not
looking go [] for tonight. Are you still out my way?
Neiber: And my phone is going to die.
1129: Yeah, but I didn't bring anything with me.
5 A-5386-17
Neiber: Okay. Looks like tomorrow anyway. This guy
is swapping out the alternator for us.
Neiber: Hope to be back on the road soon.
1129: No problem.
Neiber: I will get you in the morning. Thanks.
1129: Hey, did you make it home yet?
Neiber: What a night. You awake?
1129: What's up? Yeah. What's up?
Neiber: You going to make it out this morning?
1129: What you need.
Neiber: Two or three.
1129: Two or three[?]
Neiber: Can you do three if not two.
....
1129: How much you got?
Neiber: 700.
....
1129: Give me a sec.
Neiber: K. I'm counting on you.
6 A-5386-17
1129: Let me check. Are you going to be able to do
what I asked you?
Neiber: I got you.
1129: Okay. Let me see if [I can]. The guy I got the
last stuff from I know he's not going to [do] that though
because he told me he pays 175, $175 for that.
Neiber: Then two, I'm starting to get sick.
....
Neiber: Let me know when you hear anything.
Neiber: Did you get it?
Neiber: Please answer me.
Neiber: Chris, I hate to keep bothering you but just let
me know if you're going to make it here today. Thanks.
1129: On my way, Mitch. I fell asleep.
Neiber: Thanks.
1129: Oh, I hear getting now do you still want three
cause he said he'll do it.
Neiber: Yes, thanks.
1129: Okay. See you in a few.
Neiber: Thanks.
Neiber: You getting close?
....
7 A-5386-17
1129: Had to stop to get my tire checked.
Neiber: K. How long?
1129: About [forty-five].
Neiber: K.
1129: Ten minutes.
Neiber: K.
Neiber: Come in. I have my electrician here.
1129: Outside.
Neiber: Come in.
1129: Garage closed.
Neiber: Come around back.
1129: Huh?
Neiber: Around my house.
At that point, defendant exited his car and walked toward the back of
Levine's residence and was confronted by a SWAT team. After police identified
themselves, defendant attempted to flee, but was apprehended. Defendant was
arrested and searched. Police recovered three bricks of heroin and two cell
phones from his person.
8 A-5386-17
At police headquarters, defendant voluntarily waived his Miranda 1 rights,
and gave an audio recorded statement. Defendant admitted knowing Levine and
supplying him heroin.
On May 12, 2016, a grand jury indicted defendant for conspiracy to
possess CDS with intent to distribute on April 4, 2016, contrary to N.J.S.A.
2C:5-2(a)(1), N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count one);
possession of CDS with intent to distribute on April 4, 2016, contrary to N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and two counts of
obstruction of the administration of law, contrary to N.J.S.A. 2C:29-1(a) (counts
three and four). On September 15, 2016, a grand jury returned a second, separate
indictment charging defendant with strict liability for drug-induced death,
contrary to N.J.S.A. 2C:35-9(a) (count one); and distribution of CDS or
possession with intent to distribute on March 26, 2016, N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(3) (count two).
Originally, defendant was represented by private defense counsel. In May
2017, counsel moved to be relieved. 2 Counsel explained he was only retained
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
An attorney from the Office of the Public Defender was also present in
anticipation of assuming defendant's representation when private defense
counsel moved to be relieved.
9 A-5386-17
to defend the charges in the first indictment, and with respect to those charges,
a plea bargain had been offered. Subsequently, however, the second indictment
charged defendant with strict liability for a drug-induced death, and the State
indicated it intended to use defendant's guilty plea on the CDS charges in the
strict liability case. Defense counsel explained he was concerned about this
development and thought "it would make sense to have the [Public Defender's
Office] substitute in on both cases."
The motion judge asked defendant how he felt about the motion to be
relieved, and defendant replied he "didn't know." The judge then explained why
defense counsel sought to be relieved as follows:
I'm sure [private defense counsel] went through with
you the ramifications if you pled guilty on the one,
which was your intent today. It's my understanding you
wanted to plead guilty, but you wanted new
representation on the other case which, obviously has
more significant consequences than the first one. What
the [p]rosecutor has proposed is that he would . . . file
a motion and attempt to use what was in that case, your
guilty plea or whatever else, and I don't know all the
details in that case, but the fact that if you pled to
possession with intent to distribute, the deceased
person, . . . he would then attempt to have the [c]ourt
admit[ it] in the second case, the strict liability case.
All right?
And then the [c]ourt . . . would hear argument and
make a decision. So what [private defense counsel is]
indicating is that it is probably better that one attorney
10 A-5386-17
handles both cases because they'll have a fuller
understanding. They can speak to you about it and
make recommendations to you[.]
Are you in agreement with that?
After further clarification, defendant explained he was satisfied with private
counsel's services and wanted to plead guilty to the CDS charges, since that was
the last date the State would accept a plea, and have the Public Defender
represent him on the strict liability charge.
The motion judge also learned defendant lacked the funds to pay private
counsel in either case. Private defense counsel explained as follows:
I have to be asked to be relieved. A certain amount was
agreed to for pretrial services, and that full amount has
not been paid, and the pretrial services in this case have
been extensive, involving motion practice, extensive
discovery review, and I don't even know how many
times we've been to court already, pretrial.
....
But it's off the charts. And we haven't even
scheduled these cases for trial yet. So I would end up
trying both cases free, for absolutely no payment.
....
I'm a solo practitioner. That would be an extreme
economic hardship on me. . . . I have to ask to be
relieved at this point.
11 A-5386-17
The State reiterated the plea offer, namely, defendant would plead guilty
to the CDS charges in exchange for a recommended sentence of five years
imprisonment with a two-and-one-half-year-period of parole ineligibility. If
defendant accepted the offer, then the State would proceed to trial on the strict
liability charge. The State also offered a global resolution, stating it would allow
defendant to plead guilty to all charges in exchange for a recommended sentence
of seven years with an eighty-five percent period of parole ineligibility. The
State advised the offers would remain available until the start of trial. The State
also emphasized "the offer won't change" regardless of attorney. The motion
judge entered the order relieving private defense counsel and substituting the
Office of the Public Defender to represent defendant on both cases and
adjourned the matter for approximately two weeks to enable defendant to
consider the State's offer and consult with his public defender.
The matter returned to court on May 26, 2017, for a pre-trial conference.
Defense counsel indicated it was defendant's intention to enter a plea on the first
indictment. The State indicated it would not rescind the plea offer, but expressed
concern that it could not use defendant's plea in the first indictment as evidence
to prove the second indictment. The State informed the judge it intended to file
various pre-trial motions, including a motion to join the indictments and would
12 A-5386-17
await the judge's ruling before proceeding with the plea. Defense counsel also
announced he intended to file certain motions, including a motion to dismiss the
indictment and sought an adjournment to review the grand jury transcripts.
The State explained the joinder issue during the following colloquy with
defense counsel:
[Defense counsel]: I was going to ask, you know, why
that decision was made at this stage in the process, why
it hasn't been done sooner.
[Prosecutor]: Well I think it's because in discussions
with the previous [defense] attorney there was always
discussions of a plea. And we're at [pre-trial
conference] number four I think. And we do have
concerns about the overlapping investigation in both
indictments. We want to protect both cases. It seems
more likely now that we're going to go to trial based on
the strict liability case. And I want to protect the
evidence from both. I think that . . . if he does end up
pleading on the one indictment, there will be many
pretrial motions that we'll have to go through. And I
think my case can be preserved. But I think at this time
consolidation is necessary to preserve my case and . . .
to a way forward[,] pending the judge's decision.
Before adjourning the matter, the judge confirmed what the State's plea
offer would be in the event she granted the consolidation or denied it for
defendant's benefit in the following colloquy:
[Prosecutor]: . . . [I]f you grant our motion to
consolidate the two indictments, then the offer of the
seven [years] on the consolidated indictment would still
13 A-5386-17
remain. But if your decision is to deny it, then the offer
on the two separate indictments will still remain the
same.
[The Court]: So it doesn't change anything.
[Prosecutor]: It doesn't change anything. We just want
the opportunity to join them together.
The judge adjourned the matter in anticipation of the parties' respective motions.
Defendant filed a motion to suppress his statement to police and the
evidence recovered from Levine's phone. The State moved to join the
indictments. The judge heard the motions over the course of several days in
August 2017.
Defendant asserted the discovery of Levine's cell phone did not justify the
issuance of a telephonic search warrant because under the circumstances there
were no "valid concerns that evidence will be destroyed." He argued the second
warrant giving police permission to use the phone to communicate with
defendant "implicated the Wiretap Act[ 3], and . . . [police] should have been
required to comply with, and obtain a warrant pursuant to that statute." He
asserted the request for the warrant did not "fall into the 'law enforcement'
exception of N.J.S.A. 2A:156A-4(b) because the officer communicating with
3
New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A.
2A:156A-1 to -37.
14 A-5386-17
defendant was not truly a 'party to the communication' because he was acting as
Levine." Defendant asserted "the text messages between the officer and
defendant constitut[ed] an 'intercept' within the meaning of the Wiretap Act
because the officer assumed a dual identity and converted his communications
into an intercept."
The motion judge ruled there was probable cause to issue the warrant
because police made the request on the "belief that information pertaining to
who sold Levine the heroin in question would be discovered on his phone . . . ."
The judge concluded there was an exigency for the telephonic warrant because
despite the fact that the scene was thoroughly secured
and there was no risk that evidence on the phone would
be destroyed, the investigation was still unfolding and
the officers had no way of knowing how quickly word
of Levine's death would spread to his acquaintances,
and potentially the person who supplied him with the
heroin which cause[d] his death. . . . Obtaining the
warrant telephonically allowed the officers to begin
investigating Levine's death immediately without the
fear of interference.
As for the second warrant, permitting Neiber to use Levine's phone, the
motion judge found
the text message exchange between defendant and . . .
Neiber was not an "interception," because it does not
qualify as an "intercept" as defined by the New Jersey
Wiretap Act. Furthermore, . . . a [w]iretap [o]rder was
not required because the communication falls within
15 A-5386-17
N.J.S.A. 2A:156A-4(b)'s exception for
communications to which a law enforcement officer is
a party.
The motion judge also conducted a hearing on defendant's motion to
suppress his statements to police. Neiber testified that prior to administering
defendant his Miranda warnings, police reviewed his pedigree information,
namely, his "name, date of birth, social security number, identifying marks,
employment, [and] place of birth." Defendant also provided his phone number,
which was not the same as the number communicating with Levine's device.
Then, according to Neiber, after defendant was given the Miranda warnings, he
waived them orally and in writing and the interview about the events that had
taken place prior to defendant's arrest proceeded. At first, defendant was not
made aware of Levine's death and was not informed of the charges until near the
end of their discussion.
Defendant argued his statement should be suppressed because the
pedigree information police elicited prior to the Miranda warnings, including
his nickname and phone number, was incriminating because it was relevant to
the investigation. He argued his statement was not voluntary because he was
not informed Levine was dead or of the charges until he had given police
incriminating statements.
16 A-5386-17
The motion judge denied the motion, concluding the information was not
incriminating, but instead "objectively ministerial in nature and did not indicate
any substantive relation to the investigation." The judge also found as follows:
The detective did not deliberately mislead the
defendant. The defendant never requested an attorney
nor did he invoke his right to remain silent. . . .
Furthermore[,] the State has proven beyond a
reasonable doubt that the defendant knowingly and
intelligently waived each and every right before making
a statement and the defendant neither invoked nor
attempted to invoke any of these rights thereafter.
The State argued the judge should join the cases because they were part
of the same transaction and the indictments came separately because the
evidence from the first indictment, namely, the information extracted from
Levine's telephone, led to the identification of defendant as the suspect in the
second indictment for the strict liability offense.
The motion judge granted the State's motion for joinder and in a written
decision found as follows:
The joinder of these indictments is not used to merely
bolster the evidence in one trial, or show that defendant
has a propensity to distribute drugs; the two
[indictments] are part of the same case, and the
evidence of each is highly probative of the other, and
thus is not outweighed by the potential prejudicial
effect.
17 A-5386-17
....
. . . The State, in presenting [the first indictment],
would be at a loss to present the complete picture
without being able to provide to the jury the basis for
identifying the defendant on trial as the "Chris" in the
text messages. Without a full explanation of the
investigation describing how the investigators
communicated with "Chris" to obtain evidence as to
Levine's supplier, the full picture of the first crime
could not be shown to the jury.
Defendant filed a second motion to suppress, challenging the warrantless
search of Levine's home arguing there was an expectation of privacy and police
could not enter Levine's home and remove the heroin and Levine's cell phone
without a warrant. Defendant also filed a motion to dismiss the indictments.
The motion judge began to hear the matter when defense counsel informed
her defendant had filed an ethics grievance against the prosecutor and "filed
something with the Office of Judicial Ethics 4 in connection with [the judge]."
The judge took a recess and returned to advise as follows: "Due to the fact that
this [c]ourt was put on notice that there was a grievance filed regarding judicial
ethics against this [c]ourt I have spoken to my presiding judge . . . [and] he wants
everyone . . . over [and] he'll hear the motions himself today."
4
The motion judge surmised that defense counsel meant defendant filed a
complaint with the Advisory Committee on Judicial Conduct.
18 A-5386-17
The parties appeared before the Presiding Judge of the Criminal Part 5 who
stated he advised the motion judge "responsibility for the matter going forward
would be assumed by [him], lest there [was] an opportunity hereafter for anyone
to question or complain about [the motion judge] presiding over this matter."
The judge explained he assumed responsibility for the case "in order to avoid,
even potential issues hereafter, from having to be dealt with so that we could
focus on the substantive matters before the [c]ourt." Neither party objected to
the trial judge's decision.
The trial judge stated he read the parties' motion pleadings and was
prepared to proceed. Following nearly three hours of oral argument, the judge
denied defendant's motion to dismiss, concluding as follows:
This indictment is not manifestly deficient or palpably
defective. . . .
. . . [I]n determining the sufficiency of the
evidence to sustain an indictment, every reasonable
inference is afforded to the State's evidence.
....
Defendant is charged with strict liability drug-
induced death. The elements are that the defendant
distributed or dispensed the CDS, he acted knowingly
or purposely in doing so. The victim ingested the CDS
and died as a result. The State has presented some
5
The presiding judge tried the case and was also the sentencing judge.
19 A-5386-17
evidence that the substance in question was a CDS,
specifically heroin, and I've indicated that. Also, the
State presented evidence that the defendant possessed
the substance and that he had the intent to distribute it,
purposefully and knowingly. And then, finally
evidence that the . . . decedent died as a result. For all
of the foregoing reasons, and the totality of the
circumstances, . . . the motion of the defendant is
denied.
Regarding the suppression motion, the trial judge found defendant had
standing to challenge the search, but adjourned the matter to the following day
to continue the hearing. When the matter returned the following day, the judge
indicated he reviewed all of the submissions and the materials in the case at
length. The judge denied the suppression motion and rendered the following
oral decision:
Here, this isn't the typical case in which a defendant
seeks suppression of property found in his home or in a
place in which he has a proprietary or possessory
interest. Here, defendant asserts his right to privacy in
the home of another, specifically in the home of his
alleged customer, and in the property seized, that is the
heroin, which he allegedly sold to the decedent days
before [his] demise. That expectation of privacy is both
subjective in the extreme and unreasonable. . . .
[U]nder all of the circumstances, the defendant has not
established a reasonable basis to hold the subjective
expectation of privacy which he claims and the object
of the search, that is in the heroin, because he allegedly
sold it, . . . disposed of it and had transferred
possession, right, title[,] and interest to it to . . . Levine.
20 A-5386-17
....
The State argues [defendant] abandoned the
property. I don't know that he abandoned it, but he
certainly relinquished his right, title[,] and interest to it.
Such as he had no continuing interest in the property
seized at the time of the search. . . .
There is nothing in the record before this [c]ourt,
or as presented by the defendant, that would support his
claim of a reasonable expectation of privacy in the
heroin, in . . . Levine's home, or further and finally, in
the decedent's telephone. A point was made that the
phone was seized. Indeed it was. But while [defendant]
might have had a reasonable expectation of privacy as
to his . . . electronic communications with . . . Levine,
he had no reasonable expectation of privacy in the
physical phone itself which was the subject of seizure
as a result of the warrantless search. . . .
Finally, . . . the fact that the defendant had been
there does not give him an expectation of privacy in the
place. He wasn't leaving a suitcase belonging to him,
which he intended to store at . . . Levine's apartment,
for example, in which he might have retained an
expectation of privacy. He was just an itinerant guest,
commercial guest at that, . . . or business invitee, in . . .
Levine's home. He had no interest in the place and he
had no expectation of privacy in the property, that is the
heroin, nor where it was found or used for the purpose
of constitutional analysis.
21 A-5386-17
Following the judge's ruling, 6 defendant asserted the motion judge
represented that regardless of the outcome of the joinder motion, the State's plea
offer of "a five with a two" would stand. The trial judge informed defendant he
was not involved in the prior proceedings and should discuss the matter with
defense counsel.
The next pre-trial conference occurred in January 2018. Defendant again
addressed the withdrawal of private defense counsel, and claimed it "wasn't
about financial reasons. It was about strategic reasons." Defendant claimed he
wanted to plead guilty to the CDS charges, but there was a disagreement "that
arose between [him] and [private defense counsel.]" Defendant objected to
private counsel being relieved because "it gave [the] State an opportunity then
to file a motion to join the two indictments together before [defendant] could
plead guilty" to the CDS charges. Defendant claimed "there was only one plea
offer on the table and that was to both indictments." He argued because the
Public Defender was allowed to take his case against his wishes, his right to
counsel was violated.
The trial judge found
6
The trial judge also denied a subsequent motion for reconsideration of the
decision on the suppression motion.
22 A-5386-17
[private defense counsel] wasn't jettisoned from the
case, barred from proceeding or otherwise prevented
from representing [defendant]. He moved for that relief
and it was agreed by consent of the State and defendant
that . . . [counsel] would be relieved as counsel, and the
Office of the Public Defender would be substituted.
That was an [o]rder signed May 5, 2017. That bell has
been rung.
After rejecting defendant's argument, the trial judge reviewed with
defendant the indictments and the State's plea offer, which was to plead guilty
to reckless manslaughter in return for the State's recommendation of a sentence
of a maximum of seven years in prison, with an eighty-five percent period of
parole ineligibility, and merge the second indictment into the first. The judge
explained in detail defendant's sentencing exposure and that he was eligible for
an extended sentence if a jury convicted him of the charges. Defendant
acknowledged he understood the judge's explanation and rejected the offer. 7
Following N.J.R.E. 104 hearings in March 2018, a jury was selected, and
defendant's trial was scheduled for April 2018. On the first day of trial, prior to
opening statements, the State moved in limine for a ruling permitting it to
7
The transcript also briefly addresses a motion by defendant to sever trial of
the indictments, evidenced by the following solitary comment by the judge near
the end of the proceedings: "And the severance motion you'll do as you please.
But having granted the motion to join that may not be optimistic to expect that
that motion might be successful." The appellate record does not reveal whether
defendant ever filed the motion.
23 A-5386-17
introduce the record of the text message between 1129 and Levine from
September 2015 through March 24, 2016, the day prior to the drug transaction
which killed Levine, to demonstrate the extent of Levine's relationship with
defendant.
After oral argument, the trial judge rendered detailed oral findings and
concluded as follows:
Under the totality of these circumstances, . . . the State's
motion to admit all of this other crimes or bad acts
evidence is granted in part and denied in part. The text
messages on and after March 24[, 2016] through and
inclusive of April 4[, 2016] are admitted in their
entirety. The text messages prior to March 24, 2016
will not be permitted to be admitted in the State's case
[in] chief as to their content.
However, the fact that there was a telephone
exchange between the defendant and the decedent over
an extended period of time will be permitted. So we
need to draw that distinction because it is an important
one. From September 1 through March 23, the fact that
there were text messages and telephone contact
between these parties is admissible. The content, the
interpretation of those messages inadmissible. In the
State's case [in] chief, through [March] 24 and inclusive
of April 4 the entirety come in.
Now, in the event the defendant suggests by
cross-examination of the State's witnesses by
implication by inference or in any other manner
suggests third party guilt which he is entitled to do.
24 A-5386-17
In that case, this [c]ourt will permit the entirety
of that course of conduct including the substance of
those conversations and interpretation thereof in its
rebuttal case in order to rebut the suggestion of third
party guilt.
Clear?
[Defense counsel]: Clear.
Defendant's trial occurred over six days in April 2018. The State
presented testimony from fourteen witnesses, including Neiber and Jados.
Defendant adduced testimony from a detective at the prosecutor's office. We
recount the aspects of the trial relevant to the issues raised on this appeal.
At trial, the State introduced the text message conversation that took place
between defendant and Levine on March 24 and 25, 2016. Defense counsel
objected on hearsay grounds. In response, the State noted the messages were
not hearsay because they were not submitted for their truth.
The trial judge overruled the objection and made the following findings:
[T]here are two exceptions I believe which would
permit the introduction of these statements which as I
understand the testimony of the witness would be
outgoing from . . . Levine's phone and that they are
statements by a deceased declarant under [N.J.R.E.
804(b)(6) and (a)(4)].
....
25 A-5386-17
But the two things that occur to me which provide
exceptions to the exclusionary hearsay rule of one, the
statement is made at a time and under circumstances
which would evidence its trustworthiness, not for the
truth of what is stated, but rather for the fact that it was
stated and the source from which it emanated.
And second, the incoming messages from [1129]
that phone number if associated with the defendant will
come in as either admissions against interest or
statements by party opponent. And in order to put those
messages in context there needs to be an outgoing to
explain the context of the incoming.
In other words, you need to have two sides to the
conversation. So I can entertain an application by
[defense counsel] for a cautionary instruction to the
jury in regard to the decedent's unavailability but I am
going to permit the testimony to come in as to the
content of this string of text messages . . . .
The judge then instructed the jury as follows:
[Defense counsel] or [the State] in turn have the right
to make objections and indeed the obligation to do so
when in their opinion it is appropriate. [Defense
counsel] makes an objection . . . to that testimony about
what . . . Levine said because it's hearsay[. C]learly
that's so and I defined hearsay for you yesterday as a
statement made by a person not present testifying to the
statement and the reason that that's objectionable is
because the statement is not subject to the crucible of
cross-examination.
You can't test it by saying well, when did you say
that, what did you say, what did you mean by it. Okay?
And I told you yesterday that there were . . . numerous
exceptions to the hearsay rule[,] one of which is where
26 A-5386-17
the declarant, the person who is making the statement
is unavailable.
Obviously, . . . Levine is unavailable by virtue of
his death and so . . . under that exception this testimony
will be permitted.
Now, I caution you, however, that the testimony
is being admitted not for the truth of what is being said,
but for the fact that it was said and there was or may
have been a reaction to it.
Now, you might say well, what's the significance
of ["H]ey, Chris, how are you doing?["] Maybe not
much but the same rule will apply as we go through
these [twenty] messages.
And another exception to the hearsay rule is a
statement by a party in this case . . . if it is established
that the Chris participating in this text message stream
is [defendant] that would get it in.
So if [defendant's] statements come in you can't
have those in a vacuum. You have one side of a
conversation. Okay? So what . . . Levine said is
admitted additionally to put the whole stream of text
messages in context.
What they mean will be up to you to determine as
the judges of the facts. . . .
Thereafter, the text messages between Levine and 1129, which we previously
recited, were read to the jury.
The State's final witness was the Hunterdon County Medical Examiner
who was also a forensic pathologist. During voir dire, the witness explained his
27 A-5386-17
occupational and educational background. He stated he was a doctor of
osteopathic medicine and had performed between 2000 and 3000 autopsies
during his career and been qualified as an expert in forensic pathology "[twenty]
or more times." He also explained the autopsy process. During cross-
examination on voir dire, the witness conceded he was not board certified and
was not a toxicologist. Defense counsel moved to disqualify the witness from
testifying regarding the cause of Levine's death arguing the witness did not
practice medicine and had not been qualified a sufficient number of times by the
court to render an expert opinion.
The trial judge denied the motion and made the following findings:
I find that pursuant to the criteria under New Jersey
Rules of Evidence 702 [the doctor] has the requisite
education, training[,] and experience to be permitted to
testify as an expert in the field of . . . forensic
pathology, which is defined as the study of the human
body and the causes of a death. Further, forensic
pathology is not an area of human endeavor that I
expect many of the rest of us are familiar with or
sufficiently conversant with to understand the study of
the body, which may be at issue in this case, or the
cause of death of . . . Levine. The fact [that the doctor]
is not as busy as other medical examiners that the
demands on his time permit him to engage in
entrepreneurial pursuits related to, but not strictly
within the field of forensic pathology, does not impair
his ability, nor does it diminish his capacity to speak to
the issues for which he has been called. He was the
individual who performed the autopsy in this case. And
28 A-5386-17
by virtue of that experience, combined with his
professional history, is probably best qualified to tell
you what his opinions are as to . . . which he has come
to based upon his study of the body of . . . Levine and
ultimately his conclusion as to the cause of . . . Levine's
death. All of that having been said, the objection is
overruled, the doctor is qualified under [N.J.R.E.] 702
as an expert.
Prior to summations, during the charge conference, defense counsel asked
the trial judge to charge the jury on the entrapment defense, even though the
defense had not previously provided notice it would assert the defense. Defense
counsel explained notice of the defense was not raised prior to trial because
defendant did not want to open the door to the State to introduce his criminal
history. Counsel argued the charge was appropriate because the testimony
suggested police could have learned of defendant's identity by seeking to make
other arrangements with him aside from the sale of drugs. The State objected
and argued if it had received proper notice, it would have tried the case
differently, and introduced evidence of defendant's criminal history.
The trial judge denied the request for the charge. The judge found
defendant made a strategic decision not to pursue the entrapment defense. The
judge noted even though police encouraged defendant's conduct, the evidence
showed he was predisposed to selling drugs for profit, which the judge
concluded "categorically defeated the defense of entrapment."
29 A-5386-17
The jury convicted defendant of counts one and two under the first
indictment, and acquitted on count one under the second indictment. At
sentencing, the State moved for an extended term pursuant to N.J.S.A. 2C:43-
6(f). The judge noted this was defendant's "tenth indictable conviction . . . most
of which [were] for drug-related offenses," in addition to convictions for
resisting arrest and aggravated assault, and numerous municipal drug-related
offenses and a "laundry list" of other disorderly persons offenses. The judge
made the following findings regarding the aggravating and mitigating factors:
Aggravating factor [three, N.J.S.A. 2C:44-1(a)(3),] the
risk that the defendant will commit another offense is
clearly implicated here and underscored by
[defendant's] frank admission that the problem he has
is how to control his urges. And having had decades of
opportunity to do that, he has not come upon that
formula yet. Clearly, there is a risk that he will commit
another offense. Additionally, aggravating factor [six,
N.J.S.A. 2C:44-1(a)(6),] applies, and that is the extent
of defendant's prior criminal record, which extends
over [twenty-three] years and over two dozen offenses.
I just counted the dates of offenses. The actual offenses
are probably closer to four dozen. But be that as it may,
the extent of his prior criminal record, ten indictable
convictions, multiple prison sentences and numerous
municipal court disorderly persons offenses, too
numerous to tick off for the purpose of this proceeding.
And number [nine, N.J.S.A. 2C:44-1(a)(9),] the need to
deter the defendant particularly and others from
violating the law. General deterrence is always present,
but in this case it appears that the only way to deter this
defendant from violating the law is to remove him from
30 A-5386-17
the opportunity to do so, that is to sentence him to
imprisonment. There are no mitigating factors which
apply. Therefore, the aggravating factors predominate
substantially and clearly and convincingly outweigh the
non-existing mitigating factors under the compelling
circumstances here.
The judge granted the State's motion for an extended term, merged
defendant's conviction on conspiracy to possess CDS with the intent to distribute
(count one of the first indictment) with the conviction on possession of CDS
with the intent to distribute (counts two under both indictments), and dismissed
the remaining counts under both indictments. The judge sentenced defendant to
a ten-year term of imprisonment subject to a five-year parole ineligibility period.
Defendant raises the following points on appeal:
POINT I
THE IMPROPER TACTICS UTILIZED BY THE
POLICE TO ARREST DEFENDANT ON APRIL 4,
2016 CONSTITUTED OBJECTIVE ENTRAPMENT
NECESSITATING REVERSAL OF DEFENDANT'S
CONVICTION UNDER THE NEW JERSEY
CONSTITUTION AND U.S. CONST. AMEND XIV.
POINT II
BECAUSE DEFENDANT'S WAIVER OF HIS RIGHT
TO REMAIN SILENT WAS NOT MADE
KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY, HIS STATEMENT TO POLICE
SHOULD HAVE BEEN SUPPRESSED.
31 A-5386-17
POINT III
THE DEFENDANT'S MOTION TO SUPPRESS THE
SEIZURE OF . . . LEVINE'S CELL PHONE AND THE
INFORMATION EXTRACTED FROM IT SHOULD
HAVE BEEN GRANTED SINCE THE
DEFENDANT'S RIGHT TO BE FREE FROM
ILLEGAL SEARCH AND SEIZURE WAS
VIOLATED.
POINT IV
[DEFENDANT] WAS DENIED A FAIR TRIAL BY
THE COURT'S ERRONEOUS ADMISSION OF THE
TEXT MESSAGES ATTRIBUTED TO THE
DECEDENT. (Not raised below).
POINT V
THE COURT'S REPLACEMENT OF DEFENDANT'S
PRIVATE ATTORNEY DEPRIVED HIM OF HIS
RIGHT TO COUNSEL OF HIS CHOICE.
POINT VI
THE MANDATORY EXTENDED TERM
SENTENCE OF TEN . . . YEARS WITH FIVE . . .
YEARS OF PAROLE INELIGIBILTY WAS
MANIFESTLY EXCESSIVE AND SHOULD BE
MODIFIED AND REDUCED.
POINT VII
THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL. (Not raised below).
In his pro se brief, defendant additionally argues:
POINT I
DEFENDANT'S CONVICTION SHOULD BE
REVERSED BECAUSE WHAT THE POLICE DID
CONSTITUTED DUE PROCESS ENTRAPMENT
32 A-5386-17
UNDER NEW JERSEY AND THE UNITED STATES
CONSTITUTION.
POINT II
THE MATTER SHOULD BE REMANDED FOR
ADDITIONAL FACTUAL FINDINGS AND A NEW
DECISION REGARDING SUPPRESSION OF
EVIDENCE BECAUSE THE TRIAL COURT DID
NOT RESOLVE A CRITICAL FACTUAL
QUESTION.
POINT III
DEFENDANT WAS DENIED A FAIR TRIAL BY
THE COURT NOT ALLOWING HIM TO PRESENT
EVIDENCE OF THIRD-PARTY GUILT.
POINT IV
BECAUSE THE SENTENCING COURT
ERRONEOUSLY REJECTED CERTAIN
MITIGATING FACTORS IN IMPOSING AN
EXTENDED TERM SENTENCE OF [TEN] YEARS
WITH [FIVE] YEARS PAROLE INELIGIBILITY,
DEFENDANT'S SENTENCE MUST BE MODIFIED
AND REDUCED.
POINT V
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING DEFENDANT'S MOTION TO SEVER
CHARGES[,] THEREBY DENYING THE
DEFENDANT A FAIR TRIAL.
POINT VI
THE JUDGE SHOULD HAVE GRANTED
DEFENDANT'S MOTION FOR RECUSAL. THE
MATTER SHOULD BE REMANDED FOR A NEW
TRIAL, AND, OR SENTENCING IN FRONT OF A
DIFFERENT JUDGE.
33 A-5386-17
POINT VII
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL
DUE TO PROSECUTORIAL MISCONDUCT.
POINT VIII
ALL OF THE AGGREGATE ERRORS DENIED
DEFENDANT OF A FAIR TRIAL.
I.
In his counseled and pro se briefs, defendant challenges his convictions
claiming he was entrapped. Defendant argues his convictions should be
reversed because the police use of "improper tactics . . . to arrest [him] on April
4, 2016[,] constituted objective entrapment . . . ." Defendant asserts the trial
judge "erred in not applying the due process entrapment doctrine." He claims
the police conduct was "outrageous," because the police: initiated the crime by
contacting him; texted him forty-four times over a three-day period; set up the
drug sale and chose the location, date, and amount for purchase; and utilized the
SWAT team for his arrest. Defendant asserts police could have learned his
identity by offering to lend him money and did not need to lure him into a drug
transaction.
Due process entrapment occurs when police engage in conduct that is
"patently wrongful in that it constitutes an abuse of lawful power, perverts the
proper role of government, and offends principles of fundamental fairness."
34 A-5386-17
State v. Johnson, 127 N.J. 458, 473 (1992). Although the burden of disproving
the defense falls upon the State, defendant must prove "some evidence of due
process entrapment before [that] burden switches to the State." State v. Florez,
134 N.J. 570, 590 (1994).
The court must use "a comprehensive approach encompassing careful
scrutiny of the nature of government conduct in light of all the surrounding
circumstances 'and in the context of proper law enforcement objectives,'"
including:
(1) whether the government or the defendant was
primarily responsible for creating and planning the
crime, (2) whether the government or the defendant
primarily controlled and directed the commission of the
crime, (3) whether objectively viewed the methods used
by the government to involve the defendant in the
commission of the crime were unreasonable, and (4)
whether the government had a legitimate law
enforcement purpose in bringing about the crime.
[Johnson, 127 N.J. at 474.]
The Johnson Court noted the hallmarks of entrapment, namely, "[t]actics like
heavy-handed pressure, repetitive and persistent solicitation, or threats or other
forms of coercion; the use of false and deceitful appeals to such humanitarian
instincts as sympathy, friendship, and personal need . . . ." Id. at 478.
35 A-5386-17
In State v. Davis, 390 N.J. Super. 573, 593 (App. Div. 2007), we upheld
a defendant's conviction where police created a persona in order to conduct
undercover operations. We held "decoys, traps, and deceptions properly may be
used to apprehend those engaged in crime or to obtain evidence of the
commission of crime." Ibid. (quoting State v. Rockholt, 96 N.J. 570, 575
(1984)).
The facts adduced here do not reveal outrageous conduct on the part of
the police. The text message exchange between defendant and Neiber does not
evidence the hallmarks of due process entrapment, namely, that police
controlled the exchange, acted unreasonably, or communicated with defendant
for an illegitimate purpose. Indeed, defendant was a mutual participant in the
conversation. Believing he was communicating with Levine, defendant asked
how much heroin he needed and how much money he had. He did not try to end
the conversation and was not prevented from doing so.
Moreover, Neiber testified police were not solely trying to identify 1129,
but were trying to "confirm[] that 1129 was a drug dealer." Therefore, a
conversation about loaning money alone would not have linked the 1129 number
to Levine's prior drug transaction. Furthermore, the evidence at trial showed
Levine was struggling financially just prior to his overdose. Therefore, Neiber
36 A-5386-17
testified if police offered to lend defendant money in exchange for nothing it
would have aroused defendant's suspicion.
The utilization of the SWAT team to arrest defendant is irrelevant to the
entrapment issue. The encounter with SWAT occurred after defendant had
arranged the drug transaction and arrived at Levine's house ready to execute it.
II.
Defendant argues his Miranda rights should have been administered prior
to police asking for pedigree information because that information was relevant
to the investigation and incriminating. For the first time on appeal, he argues
he should have been informed of Levine's death prior to any questioning, and as
a result, his statement was not knowing, intelligent, or voluntary.
"[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court's decision so long as those findings
are 'supported by sufficient credible evidence in the record.'" State v. Elders,
192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).
Deference should be given "'to those findings of the trial judge which are
substantially influenced by his [or her] opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at
244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings
37 A-5386-17
should be disturbed only if they are so clearly mistaken 'that the interests of
justice demand intervention and correction.'" Ibid. (citing Johnson, 42 N.J. at
161).
Police are not required to administer Miranda warnings before questioning
to obtain pedigree information even when a defendant is in custody. State v.
Melendez, 454 N.J. Super. 445, 457-58 (App. Div. 2018). Considered
"ministerial in nature and beyond the right to remain silent," pedigree
information falls outside the scope of Miranda. State v. M.L., 253 N.J. Super.
13, 21 (App. Div. 1991). "Even unexpected incriminating statements made by
in-custody defendants in response to non-investigative questions by the police
without prior Miranda warnings are admissible." Ibid. "[W]hen Miranda
warnings are given after a custodial interrogation has already produced
incriminating statements, the admissibility of post-warning statements will turn
on whether the warnings functioned effectively in providing the defendant the
ability to exercise his state law privilege against self-incrimination." State v.
O'Neill, 193 N.J. 148, 180-81 (2007).
Here, the questions prior to the administration of Miranda warnings
elicited pedigree information, and therefore police did not violate defendant's
Miranda rights. Moreover, defendant did not make any inculpatory statement
38 A-5386-17
during the pre-warning colloquy. Nothing elicited during the pre-warning
interview connected defendant to 1129. Police did not ask defendant about his
relationship with Levine until after Miranda warnings were given.
We reject defendant's argument he should have been informed of Levine's
death prior to the police questioning him. Although this argument is raised for
the first time on appeal, we address it in the interests of justice utilizing the plain
error standard. State v. Robinson, 200 N.J. 1, 20 (2009); R. 2:10-2.
"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
State v. S.S., 229 N.J. 360, 381 (2017) (quoting State v. Nyhammer, 197 N.J.
383, 399 (2009)). "[T]he prosecution [must] 'prove beyond a reasonable doubt
that the suspect's waiver was knowing, intelligent, and voluntary . . . .'" State v.
A.M., 237 N.J. 384, 397 (2019) (quoting State v. Presha, 163 N.J. 304, 313
(2000)).
Whether the State has met its burden is evaluated by considering the
"totality of the circumstances." Id. at 398 (citing Presha, 163 N.J. at 313). Under
this analysis, we consider the defendant's "age, education and intelligence,
advice as to constitutional rights, length of detention, whether the questioning
39 A-5386-17
was repeated and prolonged in nature and whether physical punishment or
mental exhaustion was involved." Ibid. (quoting State v. Miller, 76 N.J. 392,
402 (1978)).
A knowing and intelligent waiver requires a defendant to be advised of
the nature of his charges. State v. Vincenty, 237 N.J. 122, 132-34 (2019); State
v. A.G.D., 178 N.J. 56, 68 (2003). In A.G.D., the Supreme Court suppressed a
statement made by the defendant where police had obtained an arrest warrant
for A.G.D., but withheld the existence of the warrant from him. Id. at 68.
Instead, police told A.G.D. they sought to interview him about allegations of
sexual abuse against him without specifying the charges. Id. at 59. Without
knowledge that police had an arrest warrant, A.G.D. "insisted that he had done
nothing wrong and wanted to put an end to the matter" and gave the police a
statement. Ibid. The Court explained
a criminal complaint and arrest warrant signify that a
veil of suspicion is about to be draped on the person,
heightening his risk of criminal liability. Without
advising the suspect of his true status when he does not
otherwise know it, the State cannot sustain its burden
to the Court's satisfaction that the suspect has exercised
an informed waiver of rights, regardless of other factors
that might support his confession's admission.
[Id. at 68.]
40 A-5386-17
In Vincenty, the Court expanded its ruling in A.G.D., holding officers
must not only inform a defendant an arrest warrant or complaint has been issued
or filed but also notify him of the "essence of the charges." 237 N.J. at 134. An
officer's failure to properly advise a defendant of the charges will not be
considered harmless error where "[s]ome of [a defendant's] statements could be
fairly characterized as inculpatory." Id. at 136.
Police deception will not always defeat the voluntariness of a defendant's
statement. State v. Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011); see
also Illinois v. Perkins, 496 U.S. 292, 297 (1990); State v. Manning, 165 N.J.
Super. 19, 30-31 (App. Div. 1978). Moreover, we have "decline[d] . . . to hold
that the principles announced in A.G.D. extend to also informing an accused of
the basis for the arrest warrant, particularly, . . . when [the] defendant well-
understood why he was arrested." State v. Henderson, 397 N.J. Super. 398, 404
(App. Div. 2008).
Here, defendant was not solely a suspect at the time of his questioning,
and like the defendant in Henderson, he was well-aware he had been arrested
for drug activity. Moreover, when he was questioned, defendant was not under
arrest for Levine's death. Therefore, police were not required to reveal every
facet of the investigation, including informing defendant of Levine's death
41 A-5386-17
before issuing his Miranda rights. The withholding of Levine's death during the
questioning did not overbear defendant's will or induce him to provide a false
confession.
The totality of the circumstances does not evidence defendant's statement
was involuntary. The motion judge noted defendant was an "intelligent
individual," who had previous contacts with law enforcement, and was
therefore, "aware . . . of his rights." The motion judge also noted during the
interview the officers were "professional," their tones "remained
conversational," and they "did not deliberately mislead" defendant and properly
advised him of his rights and indicated a waiver of those rights was not final.
For these reasons, defendant's statement to police was properly admitted at trial.
III.
In his counseled and pro se briefs, defendant argues the trial judge erred
in denying the motion to suppress the seizure of Levine's cell phone and the
information extracted from it. He argues the judge erred when he found
"defendant did not establish a reasonable basis to have a subjective expectation
of privacy." Citing State v. Randolph, 228 N.J. 566 (2017), defendant argues
"[o]nce the [trial judge] found defendant had standing, there was no longer an
issue regarding a reasonable expectation of privacy," and because a valid
42 A-5386-17
warrant was not issued, the evidence obtained from Levine's phone should have
been suppressed.
A search based on a properly obtained warrant is presumed valid. State
v. Valencia, 93 N.J. 126, 133 (1983). When a search is conducted pursuant to a
warrant, the defendant has the burden of proving "there was no probable cause
supporting the issuance of the warrant or that the search was otherwise
unreasonable." Ibid. In reviewing such a challenge, we afford "substantial
deference" to the discretionary determination resulting in the issuance of the
warrant. State v. Marshall, 123 N.J. 1, 72 (1991).
Rule 3:5-3(b) states:
A . . . judge may issue a search warrant upon
sworn oral testimony of an applicant who is not
physically present. Such sworn oral testimony may be
communicated to the judge by telephone, radio or other
means of electronic communication . . . . Subsequent
to taking the oath, the applicant must identify himself
or herself, specify the purpose of the request and
disclose the basis of his or her information. This sworn
testimony shall be deemed to be an affidavit for the
purposes of issuance of a search warrant. A warrant
may issue if the judge is satisfied that exigent
circumstances exist sufficient to excuse the failure to
obtain a written warrant, and that sufficient grounds for
granting the application have been shown.
Since December 1, 2013, Rule 3:5-3(b) does not require exigent circumstances
for a telephonic warrant. Notice to the Bar: Telephonic Requests for Search
43 A-5386-17
Warrants for Blood Tests in Driving While Intoxicated (DWI) Cases (Missouri
v. McNeely) – Rule Relaxation, 214 N.J.L.J. 794 (Nov. 25, 2013).
Here, police seized Levine's phone because it was discovered in plain view
near his body and drug paraphernalia. Police then telephonically applied for the
warrant to examine the phone on grounds because Levine died alone, and they
did not want word of his death to spread to the perpetrator. Setting aside whether
there was an exigency, the motion judge properly denied the motion to suppress
the evidence seized from the phone because the circumstances clearly
demonstrated probable cause for the telephonic warrant.
Furthermore, as both the motion and trial judges found, the second warrant
to enable police to use Levine's phone to contact 1129 was also supported by
probable cause. Indeed, the text message conversations between Levine and
defendant suggested they had nine narcotics transactions in the six months prior
to Levine's death.
The warrant enabling police to use Levine's phone was valid because it
fell under an exception to the Wiretap Act. The Act defines an "[i]ntercept" as
"the aural or other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or other device
. . . ." N.J.S.A. 2A:156A-2(c). When an officer is communicating with a
44 A-5386-17
suspect via electronic communication, the officer is a "party" to the
communication, regardless of whether they reveal their identity. See State v.
Carbone, 38 N.J. 19, 27 (1962). Conversations may be intercepted if either party
to the conversation consents. D'Onofrio v. D'Onofrio, 344 N.J. Super. 147, 154
(App. Div. 2001). Moreover, as already noted, the Act states a wiretap order is
not required where the party to the communication is law enforcement. N.J.S.A.
2A:156A-4(b).
IV.
Defendant argues he was "denied a fair trial by the court's erroneous
admission of the text messages attributed to the decedent." He contends the text
messages "were hearsay and inadmissible under any of the hearsay exceptions
set forth in N.J.R.E. 802." He also asserts the admission was a violation of his
constitutional right to confrontation.
"Traditional rules of appellate review require substantial deference to a
trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).
The trial judge's rulings will be upheld "absent a showing of an abuse of
discretion, i.e., there has been a clear error of judgment." State v. Perry, 225
N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An
appellate court applying this standard should not substitute its own judgment for
45 A-5386-17
that of the trial court, unless 'the trial court's ruling was so wide of the mark that
a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J.
469, 484 (1997)); see also State v. Fortin, 189 N.J. 579, 597 (2007). Even if
there is an abuse of discretion, we "must then determine whether any error found
is harmless or requires reversal." State v. Prall, 231 N.J. 567, 581 (2018).
"Hearsay is generally inadmissible, N.J.R.E. 802, except if it falls within
one of the hearsay exceptions." State v. Williams, 169 N.J. 349, 358 (2001)
(citing State v. Phelps, 96 N.J. 500, 508 (1984)). If an out of court statement is
not offered for the truth of the matter asserted, no exception is necessary. State
v. Buda, 195 N.J. 278, 292 (2008).
As the trial judge correctly noted, the text messages attributed to 1129,
which the State argued came from defendant, were admissible as a statement by
a party opponent pursuant to N.J.R.E. 803(b)(1). The trial judge was also correct
in finding Levine's responses to defendant's text messages were not offered for
their truth, but rather to give context to the defendant's responses. The judge
further advised the jury how to treat Levine's texts and we are unconvinced the
judge abused his discretion.
Furthermore, the admission of the evidence is not grounds for reversal
because the jury acquitted defendant of the most serious offense; the strict
46 A-5386-17
liability for drug-induced death. Therefore, the admission of the texts did not
lead to an unjust result.
V.
Defendant argues he was denied the counsel of his choosing when the
court "replaced [his] private attorney with the Office of the Public Defender
without private counsel moving under R[ule] 1:11-2 . . . ." He claims he was
prejudiced because he was unable to enter a plea to the CDS charges and try the
strict liability charges.
"The decision whether to relieve counsel is committed to the sound
discretion of the trial court, with a presumption against granting the request."
State v. Biegenwald, 126 N.J. 1, 21 (1991). "An attorney may withdraw for
justifiable and lawful cause, after giving proper notice and obtaining leave of
court." State v. Johnson, 274 N.J. Super. 137, 147 (App. Div. 1994) (citation
omitted). Counsel may withdraw for "the failure or refusal of a client to pay or
secure the proper fees or expenses of the attorney after being seasonably
requested to do so." Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967).
Additionally, RPC 1.16(b)(6) permits an attorney to withdraw from
representation where "the representation will result in an unreasonable financial
burden on the lawyer . . . ." We have stated "we cannot forget that the literal
47 A-5386-17
wording of our Rule permits withdrawal on the basis of an 'unreasonable
financial burden' independent of 'material adverse effect on the interests of the
client.'" Smith v. R.J. Reynolds Tobacco Co., 267 N.J. Super. 62, 80 (App. Div.
1993) (citation omitted).
Rule 1:11-2(a) states:
(1) prior to the entry of a plea in a criminal action . . .
an attorney may withdraw upon the client's consent
provided a substitution of attorney is filed naming the
substituted attorney or indicating that the client will
appear pro se. . . .
(2) after the entry of a plea in a criminal action . . . , an
attorney may withdraw without leave of court only
upon the filing of the client's written consent, a
substitution of attorney executed by both the
withdrawing attorney and the substituted attorney, a
written waiver by all other parties of notice and the
right to be heard, and a certification by both the
withdrawing attorney and the substituted attorney that
the withdrawal and substitution will not cause or result
in delay.
(3) In a criminal action, no substitution shall be
permitted unless the withdrawing attorney has provided
the court with a document certifying that he or she has
provided the substituting attorney with the discovery
that he or she has received from the prosecutor.
Private defense counsel made the motion to be relieved before the plea
proceeding. Therefore, a formal motion was not required. Notwithstanding
whether a formal motion was required, the motion judge carefully considered
48 A-5386-17
the parties' positions on the application, including, the State, the public defender
who was prepared to substitute as counsel, and defendant. Also, neither
defendant nor the public defender raised a concern relating to discovery that
would have prevented the court from relieving private defense counsel. We are
satisfied the process employed by the motion judge was consistent with Rule
1:11-2(a).
Private defense counsel's withdrawal did not delay defendant's case.
Moreover, contrary to defendant's argument, counsel's withdrawal had no effect
on plea negotiations; rather the advent of the second indictment and the joinder
of the indictments caused the State to change its offer. This would have occurred
regardless of whether the motion judge granted defense counsel's motion to be
relieved.
Furthermore, defendant did not contest his attorney's assertion that he had
not paid him. Nor did he contest counsel's assertion that representing defendant
and entering into a plea on the CDS charges, the only case counsel had been
retained for, and then have the plea used to convict defendant in the strict
liability case, would have been detrimental to defendant. Defendant did not
claim the public defender who assumed his representation was unprepared for
trial.
49 A-5386-17
For these reasons, the withdrawal did not prejudice defendant and the
motion judge did not abuse his discretion in granting private defense counsel's
motion to be relieved. The trial judge also did not err when defendant raised the
subject to him for a second time.
VI.
Defendant argues "the maximum extended term sentence was unduly
punitive and should be modified and reduce[d.]" He asserts the trial judge
improperly relied upon the circumstances of the strict liability charge in setting
the length of his mandatory extended term.
As we noted, the State moved for an extended term sentence pursuant to
N.J.S.A. 2C:43-6(f). Because the extended term was mandatory under the
statute upon the request of the prosecutor, the court granted the State's motion.
Our "review of sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297
(2010). We must consider whether the trial court has made findings of fact
grounded in "reasonably credible evidence;" whether the factfinder applied
"correct legal principles in exercising . . . discretion;" and whether "application
of the facts to the law [has resulted in] such a clear error of judgment that it
shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
50 A-5386-17
N.J.S.A. 2C:43-6(f) provides:
A person convicted of . . . distributing, dispensing or
possessing with intent to distribute any dangerous
substance or controlled substance analog under
[N.J.S.A. ]2C:35-5, . . . who has been previously
convicted of . . . distributing, dispensing or possessing
with intent to distribute a controlled dangerous
substance or controlled substance analog, shall upon
application of the prosecuting attorney be sentenced by
the court to an extended term[,] . . . notwithstanding
that extended terms are ordinarily discretionary with
the court.
We reject defendant's argument the sentence is unduly punitive. As the
trial judge noted, because of defendant's criminal history, the extended term was
statutorily required. Even defense counsel acknowledged at sentencing there
was "no case law or anything . . . to . . . counter that [defendant was extended
term eligible.]"
Contrary to defendant's argument, the judge did not rely upon the charge
on which defendant won acquittal. Although the judge remarked there was "no
doubt that the tragic death of [Levine] was a consequence of his drug addiction
. . . [and] also no doubt . . . that this addiction was aided and abetted by
[defendant]," that comment was not made in support of any aggravating factor
or defendant's ultimate sentence. Indeed, the judge stated: "[Defendant's] not
. . . penalized by taking the matter to trial, that's his right. . . . In fact, he's
51 A-5386-17
benefitted from it and good for him for having the courage of that conviction
that the jury would find him not guilty, as it did." Read in context, the judge's
remark regarding Levine's addiction and death was a response to the following
statement defendant made during sentencing: "I apologize to my friend, Mitch,
for not being there for him when he needed someone the most. I apologize to
his family for being associated with Mitch's death in any way."
Therefore, taken in context, it was defendant's significant criminal record,
which the trial judge discussed at length, not the aforementioned remarks that
justified the extended term. We discern no abuse of discretion in defendant's
sentence, and it does not shock the conscience.
VII.
The remaining arguments in defendant's pro se brief are as follows: (1)
he was not allowed to present evidence of third-party guilt; (2) the court abused
its discretion by denying his motion to sever the strict liability charge from the
CDS charges; (3) the court should have granted defendant's motion for recusal;
(4) he was denied a fair trial due to prosecutorial misconduct; and (5) the
aggregate of all the errors denied him a fair trial. We address these arguments
in turn in this section and address the fifth argument in section VIII.
52 A-5386-17
A.
We reject defendant's argument he was denied the opportunity to present
evidence of third-party guilt. As we recounted, the trial judge's partial exclusion
of the text messages prior to the transaction which caused Levine's death did not
prejudice defendant because it prevented the jury from hearing evidence of prior
bad acts. N.J.R.E. 404(b). More importantly, the judge did not bar defendant
from adducing the texts in his case in chief or as rebuttal and instead highlighted
that doing so would open the door for the State to adduce prior bad act evidence,
namely, a history of drug sales by the person linked to 1129, i.e., defendant.
There is no evidence defense counsel misunderstood the judge's ruling because
counsel acknowledged it. Rather, the record shows defendant made the decision
not to adduce third-party guilt evidence for strategic reasons.
B.
Defendant argues the trial judge erred by denying his motion to sever the
strict liability charge from the CDS charges. We disagree.
"The trial court is vested with the discretion to sever any count in an
indictment, if joinder would unfairly prejudice a defendant or the State." State
v. Silva, 378 N.J. Super. 321, 324 (App. Div. 2005) (citing R. 3:15-2(b)). The
denial of such motion "will not result in reversal, absent an abuse of discretion."
53 A-5386-17
State v. Cole, 154 N.J. Super. 138, 143 (App. Div. 1977) (citing State v.
Yormark, 117 N.J. Super. 315, 331 (App. Div. 1971)).
Pursuant of to Rule 3:7-6, two or more offenses may be charged in the
same indictment or accusation if they "are of the same or similar character or
are based on the same act or transaction or on [two] or more acts or transactions
connected together or constituting parts of a common scheme or plan." If the
joinder of offenses prejudices a defendant, the court may order separate trials or
counts, or direct other appropriate relief. R. 3:15-2(b). However, when the
offenses charged are the same or similar, based on the same transactions, or of
a common plan or scheme, joint trials are preferable in the interest of judicial
economy, to avoid inconsistent verdicts, and allow for a "more accurate
assessment of relative culpability." State v. Weaver, 219 N.J. 131, 148 (2014)
(quoting State v. Brown, 118 N.J. 595, 605 (1990)).
The trial judge should consider whether if the charges were tried
separately the evidence of the offenses sought to be severed would be admissible
under N.J.R.E. 404(b) in the trial of the remaining charges. State v. Alfano, 305
N.J. Super. 178, 191 (App. Div. 1997). Joinder is permitted if there is a
connection between the charges, such that evidence on one charge would be
probative of another. State v. Sterling, 215 N.J. 65, 91-92 (2013).
54 A-5386-17
As we noted, the motion judge determined joinder was appropriate
pursuant to Rule 3:7-6 because the two indictments arose from the same event
and the evidence in one case would "bolster" the State's case in the other. The
judge noted that without the context provided by the facts adduced in the CDS
distribution case proving who was corresponding with Levine, the jury would
be unable to determine culpability in the strict liability case. The judge
concluded the probative effect of the evidence outweighed the prejudice to
defendant. The decision to join the indictments for trial was not an abuse of
discretion. For these reasons, severance was not appropriate under the
circumstances.
C.
Defendant asserts he filed a motion on March 8, 2018 to recuse the trial
judge on grounds the judge was "appearing to be impartial[] and bias[ed] . . .
when he took over the case, and the comment he made during the defendant[']s
motion to suppress." Defendant argues the judge heard the motion to suppress
"before familiarizing himself with any facts of the case." He also asserts the
judge was unconcerned with the issues defendant presented and commented he
was supposed to be starting a vacation when he took over the case. Defendant
asserts the judge denied the recusal motion and said, "he was going to preside
55 A-5386-17
over the case and that was that." He argues the court failed to comply with Rule
1:12-3(a).
The appellate record lacks evidence of defendant having filed a motion to
recuse the trial judge or a transcript of the proceeding. Moreover, Rule 1:12-
3(a) was inapplicable because it pertains to "[p]roceedings in the [t]rial [c]ourts
in the [e]vent of [d]isqualification or [i]nability[,]" and the trial judge had not
disqualified himself. Regardless, the trial judge carefully and meticulously
addressed all of defendant's claims and conducted the proceedings in an
impartial manner. Defendant's claims the trial judge was biased against or
disinterested in the case lack sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
D.
Defendant argues
the prosecutor engaged in misconduct by filing the
motion to join after speaking with his attorney and
learning what defendant's strategy was or . . . he got
hold of the recorded conversation that defendant had
with his attorney, at which time he advised his attorney
of his intentions. Defendant acknowledges that he has
no proof of any of this, but the State never mentioned
anything about joining the cases before this. . . .
[Moreover, d]efendant contends that the
prosecutor deliberately filed the joinder motion after he
assured him on May 5, 2017, that the offer would not
56 A-5386-17
change from then until he appeared back in court after
he found out defendant's intentions.
In State v. Bauman, 298 N.J. Super. 176 (App. Div. 1997), we discussed
United States v. Goodwin, 457 U.S. 368 (1982), a case in which the United
States Supreme Court set forth the legal principles which guide our review here.
In Goodwin, the defendant was charged with several misdemeanor and petty
offenses. 457 U.S. at 370. After he declined to plead guilty to the charges and
requested a jury trial, he was indicted on one felony count of forcibly assaulting
a federal officer and three related counts arising from the same incident. Ibid.
A jury convicted defendant, and he appealed, arguing the prosecution retaliated
against him for exercising his right to a trial. Ibid. The United States Circuit
Court of Appeals for the Fourth Circuit agreed and reversed. Ibid.
The Supreme Court reversed the Fourth Circuit and held because the
prosecutor possessed discretion in determining the charges during the pretrial
phase, defendant was not entitled to a presumption the prosecutor had acted with
vindictiveness for charging defendant with greater offenses, and defendant
failed to produce evidence to overcome the presumptive validity of the
prosecutor's actions in filing the felony charges. Id. at 381. The Court stated:
There is good reason to be cautious before adopting an
inflexible presumption of prosecutorial vindictiveness
in a pretrial setting. In the course of preparing a case
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for trial, the prosecutor may uncover additional
information that suggests a basis for further prosecution
or he simply may come to realize that information
possessed by the State has a broader significance. At
this stage of the proceedings, the prosecutor's
assessment of the proper extent of prosecution may not
have crystallized. In contrast, once a trial begins — and
certainly by the time a conviction has been obtained —
it is much more likely that the State has discovered and
assessed all of the information against an accused and
has made a determination, on the basis of that
information, of the extent to which he should be
prosecuted. Thus, a change in the charging decision
made after an initial trial is completed is much more
likely to be improperly motivated than is a pretrial
decision.
In addition, a defendant before trial is expected
to invoke procedural rights that inevitably impose some
"burden" on the prosecutor. Defense counsel routinely
file pretrial motions to suppress evidence; to challenge
the sufficiency and form of an indictment . . . . It is
unrealistic to assume that a prosecutor's probable
response to such motions is to seek to penalize and to
deter. The invocation of procedural rights is an integral
part of the adversary process in which our criminal
justice system operates.
[Ibid.]
The Court held as follows:
In declining to apply a presumption of vindictiveness,
[we] recognized that "additional" charges obtained by a
prosecutor could not necessarily be characterized as an
impermissible "penalty." Since charges brought in an
original indictment may be abandoned by the
prosecutor in the course of plea negotiation — in often
58 A-5386-17
what is clearly a "benefit" to the defendant — changes
in the charging decision that occur in the context of plea
negotiation are an inaccurate measure of improper
prosecutorial "vindictiveness." An initial indictment —
from which the prosecutor embarks on a course of plea
negotiation — does not necessarily define the extent of
the legitimate interest in prosecution. For just as a
prosecutor may forgo legitimate charges already
brought in an effort to save the time and expense of
trial, a prosecutor may file additional charges if an
initial expectation that a defendant would plead guilty
to lesser charges proves unfounded.
[Id. at 378-80.]
As we recounted, the second indictment came as a consequence of the
CDS distribution charges in the first indictment and evidence the State garnered
confirming Levine's death was a result of his overdose from heroin defendant
sold him. As a result, there was nothing improper about the State's motion to
join the indictments and the decision to grant it was sound. The record lacks
evidence the second indictment and the joinder of the indictments was in order
to prevent defendant from accepting a plea deal.
The record also lacks support for defendant's assertion the indictment on
the strict liability offense was retaliatory for defendant's refusal to enter a guilty
plea under the first indictment because his guilty plea would have assured the
State of a conviction on the strict liability offense. Indeed, the State, not
defendant, bore the risk of an unsuccessful outcome at trial because if defendant
59 A-5386-17
won an acquittal of the CDS charges it would result in an acquittal under the
strict liability charges in the second indictment. Defendant's assertion of
prosecutorial misconduct lacks merit to warrant further discussion.
VIII.
In his counseled and pro se briefs, defendant argues the cumulative effect
of the trial errors undermined his rights to due process and a fair trial, warranting
reversal of his convictions and sentence. We are unconvinced.
At the outset, we note defendant's pro se brief raises supposed errors not
addressed in his counseled brief, which we list herein. Defendant asserts "[t]he
court erred by allowing the [S]tate to use the CDS without establishing a chain
of custody." He challenges the credibility of the State's witnesses regarding the
number of heroin bags recovered from the search of defendant's person.
Defendant claims the forensic pathologist who testified for the State was not
board certified and therefore could not opine regarding Levine's cause of death,
"which his training and experience didn't corroborate." He asserts the trial
judge: improperly participated in the questioning of a State's witness; recessed
court before another witness could finish answering a cross-examination
question by the defense; and "never addressed several motions that the defendant
filed. There was a motion for recusal, and severance."
60 A-5386-17
A harmless error in itself, when combined with another error may have a
"cumulative effect [that] can cast sufficient doubt on a verdict to require
reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). "[T]he predicate for
relief for cumulative error must be that the probable effect of the cumulative
error was to render the underlying trial unfair." State v. Wakefield, 190 N.J.
397, 538 (2007).
The cumulative errors alleged in defendant's pro se brief relating to the
chain of custody, witness credibility, expert qualification, and the judge's
conduct are raised for the first time on appeal. Moreover, defendant fails to cite
specifically to the record to support his arguments. As we stated in Spinks v.
Township of Clinton, parties have a "responsibility to refer us to specific parts
of the record . . . [and] may not discharge that duty by inviting us to search
through the record ourselves." 402 N.J. Super. 465, 474-75 (App. Div. 2008)
(citing State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977)) (finding it
improper to request the court to "scour sixty-one pages of plaintiffs' appendix,
as well as computer disks[,] without informing [the court] of what particular
pages supposedly support their argument."). Notwithstanding these
deficiencies, we review defendant's arguments under the plain error standard in
the interests of justice. R. 2:10-2.
61 A-5386-17
Having reviewed the record, we are convinced defendant's arguments lack
merit. The credibility of the State's witnesses was a matter for the jury to
determine and did not require, as defendant implies, that the trial judge
disqualify the witness, acquit defendant, or that we reverse the conviction.
We likewise find no error in the admission of the expert testimony from
the forensic pathologist's testimony as to the cause of death. N.J.R.E. 702 states:
"If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." N.J.R.E. 703 addresses the
foundation for expert testimony and requires expert opinion to "be grounded in
'facts or data derived from (1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally relied upon by
experts.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. Cnty.
of Essex, 196 N.J. 569, 583 (2008)).
The forensic pathologist's testimony was critical to helping the jury
understand the cause of death without which the State could not prove the strict
liability offense. As we noted, the expert's testimony was detailed, both in terms
62 A-5386-17
of explaining his qualifications and experiential knowledge. The expert also
explained how he determined the cause of death was a heroin overdose by
describing the autopsy and the process of ruling out other health related or foul
play causes for Levine's death. The expert explained his review of materials
gathered by his office, which were used to determine the time of death, and his
review of toxicology reports and evidence of heroin ingestion. For these
reasons, the fact the witness was not board certified did not outweigh the
substantial evidence showing he was qualified to render an expert opinion.
Regarding the judge's involvement in questioning witnesses, defendant's
brief concedes "N.J.R.E. 614 explicitly grants judges the right to question
witnesses in accordance with law and subject to the right of a party to make
timely objection." Although defendant fails to cite the offending portion of the
record, our review of the trial transcripts shows the judge questioned witnesses
sparingly and for purposes of clarifying testimony adduced by both parties.
Moreover, at no point did defendant object to the judge's questions or seek a
sidebar. And, on more than one occasion, the judge reminded the jury it should
not place greater weight on the answers to questions he posed than counsel
because the jury was the judge of the facts.
63 A-5386-17
Defendant's argument that the court never addressed his motions is
unsupported by the record. As we noted, the record lacks evidence of
defendant's motion to recuse the trial judge and defendant's argument for
severance of the indictments was adjudicated when the court heard the State's
joinder motion.
Our thorough review of the record convinces us defendant's case was
handled fairly during the pre-trial and trial phases and there are no grounds for
reversal, let alone reversing on a theory of cumulative error, expressed in
defendant's counseled and pro se briefs.
IX.
Finally, to the extent we have not addressed an argument raised on this
appeal, it is because it lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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