NOT FOR PUBLICATION WITHOUT THE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-0740-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERTO BURGOS,
Defendant-Appellant.
_________________________________
Submitted May 16, 2017 – Decided June 8, 2017
Before Judges Koblitz and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 14-09-1449.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Stephanie Davis-
Elson, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant was charged with third-degree possession of a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1)
1
(count one); third-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); third-
degree possession of CDS with intent to distribute in a school
zone, N.J.S.A. 2C:35-7 (count three); and second-degree possession
of CDS with intent to distribute within 500 feet of a public park,
N.J.S.A. 2C:35-7.1 (count four). Defendant was found guilty by a
jury on all four counts. The trial judge merged counts one, two
and three with count four, and sentenced defendant to a period of
eight years, with four years of parole ineligibility. Defendant
appeals his conviction and sentence. We affirm.
On April 9, 2014, Officer Joseph Boccassini was conducting
surveillance in the area near Wayne Street in Jersey City. During
this surveillance, Boccassini observed defendant enter and exit a
store on Wayne Street several times, but noted that defendant did
not purchased merchandise. Boccassini also saw defendant talking
with several males outside the store and then walking to the side
of the building beyond his view. Boccassini suspected that
defendant was engaged in illegal drug transactions.
When defendant returned to the officer's field of view,
Boccassini saw defendant talking on his cellphone. After
defendant's cellphone conversation, Boccassini observed a red
minivan pull in front of him offering an unobstructed view into
the vehicle. Boccassini saw defendant walk to the passenger side
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of the minivan. When defendant reached the minivan, he produced
a translucent plastic bag containing a white powdery substance.
Defendant opened the minivan's passenger door and placed the
plastic bag inside the vehicle. Boccassini saw the driver of the
minivan, later identified as Paula Greenwood, give money to
defendant, which defendant pocketed. At that time, Boccassini
suspected the substance in the plastic bag was cocaine.
Based upon his observations, Boccassini asked his perimeter
backup units, including Officer Miguel Rivera, to respond.
Defendant and Greenwood were arrested.1
Rivera recovered the plastic bag containing the white
substance from the armrest on the minivan driver's side door.
Defendant and the State stipulated that the substance in the
plastic bag tested positive for cocaine.
At trial, the State presented Boccassini and Rivera as fact
witnesses, not expert witnesses. Boccassini testified that based
upon his training and experience, there was "no doubt" the
substance in the plastic bag produced by defendant was cocaine.
Boccassini also told the jury that he suspected the plastic bag
found in the minivan had been in defendant's possession. Rivera
testified that Boccassini advised the perimeter units via radio
1
In exchange for her testifying against defendant, the charges
against Greenwood were downgraded from third-degree possession of
CDS to disorderly persons possession of drug paraphernalia.
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"that [Boccasssini] saw a -- what he believed was a drug exchange
between a male and female sitting in a van." Rivera also testified
he believed the powdery white substance was cocaine.
Greenwood also testified for the State. According to
Greenwood, she texted defendant about purchasing cocaine and then
drove her minivan to Wayne Street to meet defendant. Defendant
came to Greenwood's vehicle, opened the passenger side front door,
and placed a plastic bag on the seat. Greenwood told the jury
that she placed a $20 bill on the seat and defendant took the
money.
When sentencing defendant, the judge found three aggravating
factors and no mitigating factors. The judge considered and
applied aggravating factors (3) risk that defendant would commit
another offense, (6) extent of defendant's prior record, and (9)
deterrence. N.J.S.A. 2C:44-1(a). The judge noted defendant's
seven prior indictable drug convictions and three prior terms of
incarceration.
On appeal, defendant raises the following arguments:
POINT I
THE POLICE OFFICERS' OPINION TESTIMONY HERE
IMPROPERLY INVADED THE PROVINCE OF THE JURY
AND WAS PLAIN ERROR. U.S. Const. Amends. VI,
XIV; N.J. Const. Art. I, ¶¶ 1, 9, 10 (Not
Raised Below).
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POINT II
THE IMPROPER ADMISSION OF OTHER CRIMES
EVIDENCE DENIED DEFENDANT A FAIR TRIAL, U.S.
Const. Amend. XIV; N.J. Const. Art. I, ¶1.
POINT III
THE IMPOSITION OF A DISCRETIONARY PERIOD OF
PAROLE INELIGIBILITY WAS UNCONSTITUTIONAL AND
MUST BE VACATED BY THIS COURT. U.S. Const.
Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1, 12.
Defendant argues that Boccassini and Rivera offered improper
opinion testimony regarding the substance contained in the plastic
bag. We agree that the testimony of Rivera and Boccassini exceeded
the scope of permissible lay witness testimony contrary to State
v. McLean, 205 N.J. 438 (2011), but find the error was harmless
under the circumstances.
In State v. McLean, the Supreme Court delineated the line
between "factual testimony by police officers from permissible
expert opinion testimony." McLean, supra, 205 N.J. at 460. The
Court held:
On one side of that line is fact testimony,
through which an officer is permitted to set
forth what he or she perceived through one or
more of the senses. Fact testimony has always
consisted of a description of what the officer
did and saw, including, for example, that
defendant stood on a corner, engaged in a
brief conversation, looked around, reached
into a bag, handed another person an item,
accepted paper currency in exchange, threw the
bag aside as the officer approached, and that
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the officer found drugs in the bag. Testimony
of that type includes no opinion, lay or
expert, and does not convey information about
what the officer "believed," "thought" or
"suspected," but instead is an ordinary fact-
based recitation by a witness with first-hand
knowledge.
[Ibid. (citations omitted).]
Although not raised during the trial, defendant objects to
phrases used by the officers in their testimony that would suggest
they were offering expert witness testimony rather than fact
witness testimony.
Because there was no objection to the officers' testimony at
trial, we review defendant's claim for plain error. R. 2:10-2.
"Reversal of defendant's conviction is required only if there was
error 'sufficient to raise a reasonable doubt as to whether [it]
led the jury to a result it otherwise might not have reached.'"
State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008)
(quoting State v. Daniels, 182 N.J. 80, 95 (2004)). Defendant
must prove that the plain error was clear or obvious and that it
affected his substantial rights. State v. Chew, 150 N.J. 30, 82
(1997).
Here, there was overwhelming evidence in the record to support
the jury's finding of guilt. The State and defendant stipulated
that the substance in the clear plastic bag recovered from
Greenwood's minivan was cocaine, so the jury did not need to rely
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on the testimony of either Boccassini or Rivera to prove what was
in the plastic bag. Moreover, Greenwood's testimony was highly
incriminating. Greenwood testified that she contacted defendant
for the express purpose of buying cocaine. Greenwood also told
the jury that the plastic bag recovered from her vehicle was the
same bag given to her by defendant. Greenwood testified defendant
took the $20 bill that she placed on the seat in payment. Given
the overwhelming evidence presented to the jury, we find that the
erroneous opinion testimony provided by law enforcement did not
lead the jury to an unjust result or a result that the jury would
not have otherwise reached.
Defendant also argues the admission of other crimes evidence
deprived him of a fair trial. The alleged other crimes evidence
focused on Boccassini observing defendant speak on his cellphone,
meet with other males outside a store, and enter and exit the
store several times without purchasing merchandise. In response
to defendant's objection during the prosecutor's opening
statement, the judge ruled that defendant's observed behavior
prior to arrest was admissible and was not an allegation of a
prior illegal act.
We reject defendant's argument that Boccassini's observations
of defendant's behavior should have been excluded under N.J.R.E.
404(b) as improper "other crimes" evidence. Defense counsel failed
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to object to Boccassini's trial testimony. Because there was no
objection at trial, we review the matter for plain error. R.
2:10-2.
We find that the trial judge properly limited Boccassini's
testimony to his observations. Factual testimony of the type
conveyed by Boccassini, concerning observations just prior to
defendant's arrest, are admissible under N.J.R.E. 403 because the
testimony is intrinsic to the crimes charged. See State v.
Brockington, 439 N.J. Super. 311, 325 (App. Div. 2015) (citing
State v. Rose, 206 N.J. 141, 179 (2011)).
Next, we address defendant's contention that the sentencing
judge's imposition of a discretionary period of parole
ineligibility was unconstitutional. Defendant argues that the
sentence violated the United States Supreme Court's decision in
Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 186 L. Ed.
2d 314 (2013). The holding of Alleyne pertained to a finding by
the sentencing court that the defendant had brandished a firearm
during the commission of a robbery, thus increasing his mandatory
minimum sentence under federal law from five to seven years. Id.
at ___, 133 S. Ct. at 2156, 186 L. Ed. 2d at 322. The Court held
that facts that require an increase in the mandatory minimum
sentence "must be submitted to the jury and found beyond a
reasonable doubt." Ibid. Defendant argues that the facts
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resulting in the imposition of a discretionary mandatory minimum
term, pursuant to N.J.S.A. 2C:43-6(b), should be found by a jury
rather than the judge.
Defendant's reliance on Alleyne in challenging the
constitutionality of the period of parole ineligibility is
misplaced for two reasons. First, the judge imposed a second-
degree sentence within the normal range expressly authorized by
statute. N.J.S.A. 2C:43-6(a); N.J.S.A. 2C:35-7.1. Second, the
aggravating factors applied by the judge were based upon
defendant's extensive prior drug convictions, as permitted by
Apprendi. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.
2348, 2362, 147 L. Ed. 2d 435, 455 (2000) (finding that the fact
of a prior conviction need not be submitted to a jury).
Affirmed.
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