STATE OF NEW JERSEY VS. CARLOS CINTRON(13-07-0625, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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