NOT FOR PUBLICATION WITHOUT THE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-3069-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS M. CINTRON, JR., a/k/a
CARLOS M. CITRON, CARLOS M.
JR., and CARLOS CIBTRON,
Defendant-Appellant.
_______________________________
Submitted February 13, 2017 – Decided August 29, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Ind. No. 13-07-
0625.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Bryan S. Tiscia,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
After observing defendant Carlos M. Cintron, Jr. complete a
hand-to-hand marijuana sale on an Elizabeth street, law
enforcement officers obtained a search warrant for his apartment,
where they seized marijuana and Ziploc bags. Following defendant's
indictment, a jury found him guilty of controlled dangerous
substance (CDS) offenses and the trial court sentenced him to an
aggregate four-year prison term. Defendant appeals from the
December 5, 2014 judgment of conviction.
On appeal, defendant argues the trial court erroneously
denied his suppression motion. Defendant also contends he was
denied due process of law for the following reasons: the State
did not provide him with adequate notice of the charges; his right
to confront witnesses was violated by the admission of hearsay
statements and by an officer's statements implying evidence
outside the record inculpated him; the State did not establish an
uninterrupted chain of custody; the prosecutor nullified the
jury's power of nullification; and the trial court improperly
instructed the jury. Lastly, defendant argues his sentence is
excessive.
Defendant did not raise at trial many of the arguments he
raises on appeal. We find no plain error in the arguments he now
raises for the first time, and we find no merit in the remaining
arguments. Accordingly, we affirm his convictions and sentence.
2 A-3069-14T3
In July 2013, a Union County grand jury charged defendant in
a four-count indictment with fourth-degree distribution of
marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:25-5(b)(12)
(count one); third-degree distribution of marijuana within five
hundred feet of a public park, N.J.S.A. 2C:35-7.1 (count two);
fourth-degree possession of marijuana with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12)
(count three); and third-degree possession of marijuana with the
intent to distribute within five hundred feet of a public park,
N.J.S.A. 2C:35-7.1 (count four).1 In addition, police charged
defendant in a complaint with the disorderly persons offenses of
possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-
10(a)(4), and possession of drug paraphernalia with the intent to
use, N.J.S.A. 2C:36-2.
Following the indictment defendant filed a suppression
motion, which the trial court ultimately denied following a limited
hearing. The court declined to conduct a hearing concerning the
reliability of a confidential informant (CI), who had given police
information used to obtain the search warrant for defendant's
residence.
1
Each count alleged defendant possessed marijuana "in a quantity
of less than one ounce."
3 A-3069-14T3
The State dismissed the indictment's third and fourth counts
before trial and a jury found defendant guilty of the first and
second counts. The court found defendant guilty of the disorderly
persons CDS offenses.
The court sentenced defendant to a one-year prison term on
count one and to a concurrent four-year prison term on count two;
imposed appropriate fines and assessments; and revoked defendant's
driving privileges for six months. The court fined defendant for
the disorderly persons offenses.
The State developed the following proofs at trial. On April
5, 2013, at approximately 3:00 p.m., Officer Carmine Giannetta and
Detective Athanasio Mikros began conducting surveillance in the
area of Sixth and Livingston Streets in Elizabeth. They saw
defendant exit the rooming house where he lived and enter his car.
Defendant drove away, and the officers followed him for
approximately one mile until he stopped in front of a residence.
Officer Giannetta watched as a Hispanic male, later identified as
Omar Martinez, came out of the residence and approached defendant's
car. Defendant and Martinez spoke briefly, Martinez handed
defendant money, and defendant handed Martinez a few "small items."
Martinez returned to his residence and defendant drove away.
Officer Giannetta contacted Lieutenant Keily and Officer Jorge
Joaquim, who followed defendant.
4 A-3069-14T3
Officer Giannetta and Detective Mikros knocked on the front
door of Martinez's residence. A woman invited the officers inside
where they encountered Martinez. Based on a conversation with
Martinez, Officer Giannetta entered a bathroom and seized three
bags of marijuana from under a carpet wrapped around the base of
the toilet. Officer Giannetta secured the marijuana in his pocket,
placed Martinez under arrest, and returned to defendant's
apartment.
Officer Giannetta testified he recognized the contents of an
exhibit — three yellow Ziploc bags of marijuana inside a larger
plastic bag — as the CDS he seized from Martinez's home. Asked
how the three the smaller "baggies" got into the larger bag,
Officer Giannetta explained, "[w]e bring the evidence into our
office. We have evidence bags, tape and so forth. The officer
places it in the bag. He puts all the important information on
the front here and we seal it and we place it in [Elizabeth Police
Department] property." Officer Giannetta identified the blue tape
on one of the "baggies" as coming from the Union County
Prosecutor's Office Laboratory.
5 A-3069-14T3
Officer Giannetta identified the location of Martinez's house
on a "500-foot map" as being within five hundred feet of a public
park.2
Meanwhile, Lieutenant Keily and Officer Joaquim, assisted by
uniformed officers driving a marked police vehicle, stopped
defendant's car. The officers arrested defendant, searched him
incident to the arrest, and seized from his person two cell phones,
keys, and $54 in cash. The uniformed officers transported
defendant to police headquarters. Lieutenant Keily and Officer
Joaquim drove to defendant's residence to meet Officer Giannetta
and Detective Mikros. Lieutenant Keily kept defendant's keys.
Once the four officers arrived at defendant's residence,
Lieutenant Keily gave Detective Mikros defendant's keys. The
officers were not certain which of the four rooms in the rooming
house was defendant's. That dilemma was resolved when defendant's
cousin, who resided in a neighboring room, came up the staircase
of the residence. The officers learned the building was a rooming
house with a common bathroom and four numbered doors, each leading
2
Before the trial started, defense counsel told the court there
was no problem with the map, only whether Martinez's house was
located within the 500-foot area. During his trial testimony,
Officer Giannetta drew an "X" on an enlarged version of the map
to show where within the 500 feet Martinez's residence was located.
In summation, defendant conceded Martinez's residence was within
500 feet of a public park.
6 A-3069-14T3
to a separate residential room. Detective Mikros used defendant's
key to unlock defendant's front door, but did not enter the room.
Rather, after securing the door shut, Detective Mikros and Officer
Giannetta left to obtain "legal authorization" to enter the room.3
After receiving such authorization, the officers returned to
defendant's room and proceeded inside.
Defendant's room was approximately six feet long by eight
feet wide. Detective Mikros noted the room contained a bed, a
small refrigerator, a television, a dresser, and men's clothing.
After searching the room, Detective Mikros found and seized a
folder containing various documents bearing defendant's personal
information and two photographs of defendant. In addition, the
detective discovered a sandwich bag containing suspected marijuana
and two empty yellow Ziploc bags. During his trial testimony,
Detective Mikros identified these items as those he seized from
defendant's room. The items were contained within a sealed
Elizabeth Police evidence bag with yellow and white markings and
blue tape made or placed by someone in "the lab."
3
To avoid undue prejudice to defendant in front of the jury, the
court suggested the phrase "legal authorization" as an appropriate
alternative to "search warrant." The judge instructed the jury
not to speculate what the basis of that "legal authorization" was.
7 A-3069-14T3
Following the close of the State's case, defendant made "a
motion for acquittal," which the court denied. Defendant called
two cousins as witnesses. Juan Andino testified he lived in an
adjacent room of the rooming house and worked across the street.
Shortly before lunch, between approximately noon and 1:30 p.m. on
the day defendant was arrested, Andino saw police outside of the
rooming house. Two police officers were inside the open garage
door and another stood near a parked car. Andino saw a fourth
officer by the staircase of the residence. That officer followed
Andino as he walked into the building.
Inside the common area, Andino noticed the officer had
defendant's house keys, which he used to enter defendant's room.
Andino went to his own room, and when he came out, the police said
he could not leave. For the next hour, Andino heard the officers
searching defendant's room. After receiving permission to leave,
Andino observed defendant's room in a "disheveled" condition as
if the police had "turned it upside down."
Defendant's other cousin, Edward Rivera, worked in the garage
below the rooming house. When Rivera arrived at the garage around
noon, he saw law enforcement officers upstairs, where they remained
for approximately three or four hours. However, because he never
went upstairs, Rivera did not know the specific nature of the
police activity.
8 A-3069-14T3
In summation, defendant argued the State's case was mostly
circumstantial, fraught with problems, and did not establish
beyond a reasonable doubt either that defendant was at Martinez's
house and distributed three bags of marijuana, or that defendant
intended to distribute drugs. The jury disagreed and convicted
defendant.
On appeal, defendant argues:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE FAILURE OF THE TRIAL COURT TO
INSTRUCT THE JURY ON THE LESSER-INCLUDED
OFFENSE OF POSSESSION OF MARIJUANA (Not Raised
Below).
POINT II
THE DEFENDANT'S RIGHT TO CONFRONTATION AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR.
10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
(Not Raised Below).
A. The Police Improperly Implied
that They Had Information [O]utside
the Scope of the Trial Record that
Implicated the Defendant in the
Commission of the Crimes.
B. The [T]rial Court Erroneously
Admitted Hearsay Paper Evidence
Prepared [b]y the Government [t]o
Prove an Essential Element of the
Crime.
9 A-3069-14T3
POINT III
THE DEFENDANT'S MOTION FOR A JUDGEMENT OF
ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT IV
THE TRIAL COURT FAILED TO INSTRUCT THE JURORS
ON ALL THE ESSENTIAL ELEMENTS OF THE
DISTRIBUTION OF MARIJUANA (Not Raised Below).
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. 1,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED WHEN THE PROSECUTOR NULLIFIED THE
JURY'S POWER OF NULLIFICATION. (Not Raised
Below).
POINT VI
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. 1,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE FAILURE OF THE STATE TO SHOW
A PROPER FOUNDATION AND AN UNINTERRUPTED CHAIN
OF CUSTODY.
POINT VII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. 1,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS
(Partially Raised Below).
POINT VIII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. 1, PAR. 7
10 A-3069-14T3
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED:
THE AFFIDAVIT CONTAINED INADEQUATE
INFORMATION TO SUPPORT PROBABLE CAUSE, AND IT
CONTAINED INTENTIONALLY OR RECKLESSLY
MISLEADING STATEMENTS AND OMISSIONS.
POINT IX
THE DEFENDANT'S RIGHT TO PROCEDURAL DUE
PROCESS AND FAIR NOTICE AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW
JERSEY CONSTITUTION WAS VIOLATED BY THE
STATE'S FAILURE TO PROVIDE ADEQUATE NOTICE OF
THE CHARGES TO PERMIT THE DEFENDANT TO RAISE
A COMPLETE DEFENSE.
POINT X
THE SENTENCE IS EXCESSIVE
A. The Trial Court Improperly
Balanced the Aggravating and
Mitigating Factors.
B. The Imposition of a Four-Year
Period of Parole Ineligibility for
a Gram of Marijuana is Wholly
Disproportionate to the Crime,
Shocks the Judicial Conscience, and
is Cruel and Unusual.
C. Merger Applies.
Defendant did not raise before the trial court the arguments
he now raises in Points I, II, IV and V. For that reason, we
review them for plain error, that is, error "clearly capable of
producing an unjust result." R. 2:10-2; see also R. 1:7-2; State
v. Montalvo, 229 N.J. 300, 320-21 (2017) (noting that jury
instructions are reviewed for plain error if defendant did not
11 A-3069-14T3
object to the instructions at trial). "Regarding a jury
instruction, 'plain error requires demonstration of legal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant and sufficiently grievous to justify notice
by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust
result.'" Montalvo, supra, 229 N.J. at 321 (quoting State v.
Chapland, 187 N.J. 275, 289 (2006)).
In his first point, defendant argues that the facts do not
necessarily suggest a drug transaction, and that he and Martinez
could have shared joint possession of the marijuana. He asserts
the "fact that Martinez gave [defendant] money does not make it a
drug sale. Martinez could have been giving [defendant] gas money
for picking up their [jointly possessed] marijuana." The court
therefore should have charged the jury on possession as a lesser-
included offense of possession with intent to distribute or
distribution of marijuana. In his fourth point, defendant
challenges this excerpt from the distribution charge: to
"distribute means the transfer, actual, constructive or attempted
from one person to another of a [CDS]." Defendant alleges the
jury had no guidance on what constituted an attempt based on the
language of that charge.
12 A-3069-14T3
Concerning defendant's sale of marijuana to Martinez, we find
no error in the court not charging possession as a lesser-included
offense of possession with intent to distribute or distribution
of marijuana. A trial court "shall not charge the jury with
respect to an included offense unless there is a rational basis
for a verdict convicting the defendant of the included offense."
N.J.S.A. 2C:1-8(e). There must "be a rational basis in the
evidence to support a charge on that included offense." State v.
Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187
N.J. 119, 131 (2006)). Here defendant's fantastical speculation
about the reasons Martinez gave defendant money does not constitute
"a rational basis in the evidence" to support a charge on a
possessory offense. Defendant distributed the marijuana to
Martinez. No facts rationally suggest any other explanation for
the exchange of money for drugs.
Defendant's contention concerning the charge on distribution
is also devoid of merit. The trial court substantially followed
the model jury charge. Moreover, considering police observed
defendant sell marijuana, recovered the marijuana from the buyer,
and recovered additional marijuana from defendant's single-room
residence, we are unconvinced "that of itself the error possessed
a clear capacity to bring about an unjust result." Montalvo,
supra, 229 N.J. at 321.
13 A-3069-14T3
For similar reasons, we reject defendant's argument in Point
II that his Sixth Amendment right to confront witnesses was
violated. Defendant contends the State implied he was a drug
dealer through the officers' testimony they were conducting
surveillance, Officer Giannetta's testimony that his attention was
drawn to defendant, and the absence of any explanation for these
events. Defendant further alleges the error was exacerbated when
Gianetta testified that after entering the residence and
confronting Martinez, Giannetta said, "I was instructed by Mr.
Martinez to the bathroom area and a small carpet area that wraps
around the toilet and located three yellow-tinted bags of marijuana
that were — he placed under there."
Nothing in Officer Gianetta's testimony suggested he had
received incriminating testimony from a non-testifying witness
about defendant, or that the officer "possesse[d] superior
knowledge, outside the record, that incriminates the defendant."
State v. Branch, 182 N.J. 338, 348, 351 (2005). Although Officer
Gianetta testified he was conducting surveillance and, when asked
if "anything dr[e]w your attention while you were conducting that
surveillance," responded with defendant's name, nothing in that
exchange implied that someone had given police information about
defendant. Nothing in that exchange suggested, for example, that
defendant had prior convictions, the area under surveillance was
14 A-3069-14T3
known for drug activity, or that police had been provided with
information about defendant's criminal activity. For these
reasons, and in view of the overwhelming evidence of defendant's
guilt, we find no plain error in Officer Gianetta's testimony that
defendant drew his attention when he was conducting surveillance.
Nor do we find reversible error in the admission of Martinez's
"instruction" to Officer Gianetta to go to the bathroom where the
officer found "three yellow-tinted bags of marijuana that . . .
[Martinez] placed . . . there." We note the prosecutor carefully
phrased the question: "what, if anything, did you do after
Detective Mikros had that conversation with Martinez?"4 The
prosecutor's reference to a conversation, without its content, was
elicited to explain Officer Gianetta's conduct. The officer's
answer, which included what he was told in addition to what he
did, was partially non-responsive.
Nonetheless, even without the hearsay statement, the officer
would have testified he found three baggies of marijuana, in a
residence Martinez entered, shortly after officers observed
Martinez give defendant money in a hand-to-hand street
transaction. The obvious inference was the officers seized the
marijuana defendant sold to Martinez. The permissible testimony
4
The prosecutor had elicited testimony that the detective and
Martinez had conversed.
15 A-3069-14T3
all but nullified any prejudicial impact the officer's non-
responsive repetition of Martinez's hearsay statement might
otherwise have caused, a consideration that could explain why
defendant did not object. In any event, considering the hearsay
statement in the context of the entirety of the State's proofs,
we conclude the hearsay statement did not constitute an error that
was clearly capable of causing an unjust result.
Defendant also argues the State's introduction of the map
depicting the area within 500 feet of a public park violated his
Sixth Amendment right to confront witnesses because no one involved
in the map's preparation testified at trial. Following the
submission of briefs in this case, the Supreme Court decided State
v. Wilson, 227 N.J. 534 (2017), in which it held such maps were
"nontestimonial and that [their] admission therefore did not
violate defendant's confrontation rights." Id. at 538. The Court
determined such maps were "admissible, if properly authenticated,
under N.J.S.A. 2C:35-7.1(e) and as public records pursuant to
N.J.R.E. 803(c)(8)." Ibid. In the case before us, authentication
of the map was not an issue at trial and is not an issue on appeal.
We have considered defendant's arguments in Points III, V
through VII, and IX in light of the record and applicable legal
principles and find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
16 A-3069-14T3
In Point VIII, defendant challenges on several grounds the
"affidavit supporting the [search] warrant" of his residence.
Defendant asserts the affidavit "did not adequately articulate the
factual basis for the informant's knowledge, nor did it
'demonstrate' that the informant had been reliable in the past,
as required by law." Defendant also asserts "the facts themselves
were wholly inadequate to establish probable cause. No officer
ever observed drugs on the defendant, in his car, in his house,
or anywhere near him." Lastly, defendant contends "the supporting
affidavit contained intentional and/or reckless material
misrepresentations and omissions." Not one of these arguments has
any merit.
Following defendant's arrest, the police obtained the warrant
to search his room. Detective Mikros testified before a Superior
Court judge; he did not submit an affidavit. The detective
testified he received information from a CI that defendant was
selling marijuana out of his residence. In the past, the CI had
given information that resulted in the issuance of approximately
fifteen search warrants and "over [seventy] to [eighty] arrests."
The warrants resulted in the seizure of controlled dangerous
substances, weapons, and cars.
According to Detective Mikros, the CI told him defendant sold
marijuana from his home, which the CI identified by its street
17 A-3069-14T3
address and floor. The CI said defendant only "brings out whatever
the person orders. So if you order two bags, one bag, three bags,
he's only gonna deliver whatever the delivery order is." Detective
Mikros testified the CI's information was based on his personal
knowledge from ordering from defendant, as recently as "a couple
weeks ago."
Detective Mikros recounted the events culminating in
defendant's arrest, including the surveillance, the observation
of defendant and Martinez's hand-to-hand street transaction, and
the seizure of marijuana from the residence Martinez entered after
the street transaction. Martinez not only identified defendant
as the person who sold him the marijuana, but also gave police
defendant's cellular phone number. Defendant's phone, which
police had confiscated, rang when the detective dialed the number.
Detective Mikros also related how he had driven to defendant's
room after arresting him. While in the hallway of the rooming
house, defendant's cousin arrived and verified which room was
defendant's and that defendant lived there alone. The detective
could smell raw marijuana emanating from a room.
"The standards for determining probable cause to arrest and
probable cause to search are identical." State v. Moore, 181 N.J.
40, 45 (2004) (citing State v. Smith, 155 N.J. 83, 92 (1998)).
"Probable cause exists if the facts and circumstances known to the
18 A-3069-14T3
officer warrant a prudent man in believing that the offense has
been committed." State v. Novembrino, 105 N.J. 95, 106 (1987)
(quoting Henry v. United States, 361 U.S. 98, 100-02, 80 S. Ct.
168, 170-71, 4 L. Ed. 2d 134, 137-38 (1959)). "Before issuing any
warrant, a judge must be satisfied that there is probable cause
to believe that a crime has been or is being committed at a
specific location or that evidence of a crime is at the place to
be searched." State v. Evers, 175 N.J. 355, 381 (2003) (citing
State v. Sullivan, 169 N.J. 204, 210-11 (2001)).
Here, the facts the State established through Detective
Mikros's testimony — most of which defendant has failed to mention
in his brief — establish probable cause, as the issuing judge
found. The detective's testimony concerning the CI's past history
established the CI's veracity. See Sullivan, supra, 169 N.J. at
213. Moreover, our courts have recognized "the smell of marijuana
itself constitutes probable cause 'that a criminal offense ha[s]
been committed and that additional contraband might be present.'"
State v. Walker, 213 N.J. 281, 290 (2013) (alteration in original)
(quoting State v. Nishina, 175 N.J. 502, 516-17 (2003)).
Defendant's contention the detective's testimony contained
material misrepresentations is equally lacking in merit.
Defendant's cousin, Juan Andino, testified at the suppression
hearing to essentially the same facts he testified to at trial,
19 A-3069-14T3
as did the law enforcement officers. Defendant argued that
Andino's testimony that police searched defendant's rooms hours
before they arrested him demonstrated the warrant was issued based
on material misrepresentations. The trial court found the officers
credible and Andino incredible. The trial court's credibility
determinations are amply supported by the record. We thus defer
to them. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012).
Lastly, defendant argues in Point X that his sentence is
excessive. His primary emphasis is on the trial court's imposition
of custodial terms without parole eligibility. Defendant is
mistaken, as evidenced by both the sentencing transcript and the
judgment of conviction. The court imposed "flat" prison terms
with no period of parole ineligibility. Defendant's remaining
arguments concerning his sentence are similarly lacking in merit
and do not warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
20 A-3069-14T3
STATE OF NEW JERSEY VS. CARLOS CINTRON(13-07-0625, UNION COUNTY AND STATEWIDE)
Combined Opinion