NOT FOR PUBLICATION WITHOUT THE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-3281-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS N. ALEXANDER, a/k/a
NICK ALEXANDER,
Defendant-Appellant.
_________________________________________
Submitted May 15, 2018 – Decided June 14, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment No.
15-03-0253.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender II, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Adam D. Klein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant was tried before a jury and found guilty of third-
degree possession of a controlled dangerous substance (CDS),
specifically methamphetamine, Schedule II, contrary to N.J.S.A.
2C:35-10(a)(1). Defendant appeals from the judgment of conviction
dated February 3, 2017. We affirm.
I.
A Cape May County grand jury charged defendant with third-
degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one), and third-
degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two).
Defendant thereafter filed a motion to suppress physical evidence.
Following an evidentiary hearing, the trial court denied the
motion. The court later granted the State's motion to dismiss
count one, and defendant was tried before a jury on count two.
At the trial, Patrolman Matthew Gamble of the Lower Township
Police Department (LTPD) testified that on January 30, 2015, at
around 9:00 p.m., dispatch directed him to respond to a residence
on Maple Avenue to check on a person named "Nicholas Alexander."
Gamble went to the residence and walked around the exterior of the
home but found nothing unusual.
Patrolman Ryan Hansberry of the LTPD arrived on the scene.
Gamble and Hansberry checked the front door and found that it was
unsecured. The officers announced that they were from the "Lower
Township Police" but received no response. They entered the house
and began to clear the house for officer safety. While in the
living room, the officers heard someone state, "[W]hat's going
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on?" Gamble said he believed the voice was coming from the
bathroom.
Gamble asked whoever was in the residence to come out with
his hands up. Initially, no one responded. The officers repeated
the command. A man quickly exited the bathroom, asked what was
going on, and ran into the adjacent bedroom. Gamble identified the
man as defendant. Gamble and Hansberry directed defendant to come
out with his hands up. He failed to comply, and the officers
repeated their command. Eventually, plaintiff came out with his
hands up. He was wearing a pink towel around the waist, and had a
black cell phone in his hand.
Gamble told defendant to put the phone down and asked if
anyone else was in the house. Defendant said he was not sure. At
that point, Hansberry began to clear the kitchen area to ensure
no one else was in the house. Gamble opened the bathroom door and
on the back of the toilet, found a spoon with white powder. Gamble
asked defendant what the substance was. Gamble believed it was
crystal methamphetamine.
In the bedroom from which defendant emerged, the officers
found more white powdery substance. On the bed, the officers found
a plate with white powder on it. The officers also found several
bags with a residue of white powder, hypodermic needles, and a
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razor blade to split the powder. Hansberry took photos of the
contraband.
Gamble said they were in the house for about an hour. During
that time, the officers did not see any other residents. Gamble
testified that he did not observe anything that led him to believe
that anyone else was living in the house. He acknowledged, however,
that defendant's mother owned the house and sometimes rented out
rooms.
Hansberry also described the officers' entry into the house
and their encounter with defendant. Hansberry testified that he
went into the bedroom that defendant had entered and observed a
plate on the bed with white substance believed to be
methamphetamine. He also found glassine baggies containing a white
substance also thought to be methamphetamine, and hypodermic
needles.
Hansberry and Gamble further testified that because defendant
claimed he was injured and said he had been doing methamphetamine
for three days to harm himself, they called "rescue." Hansberry
stated that in the past, defendant's mother had rented rooms in
the house, but he did not know if she was renting any rooms at
that time. Hansberry also stated that the house had an upstairs
apartment, but when he cleared the rooms, he did not enter that
apartment.
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Defendant elected not to testify, and he did not call any
witnesses. In summation, defendant's attorney argued the State had
failed to prove beyond a reasonable doubt that defendant knowingly
possessed the CDS. Counsel stipulated that the CDS found in the
home was methamphetamine. Counsel argued, however, that
defendant's mother owned the home and at times, she rented out
rooms. Counsel also pointed out that there also was an upstairs
apartment in the house.
Counsel asserted that the officers had cleared the house but
did not see anyone other than defendant. The officers said they
did not know whether anyone was living upstairs. Counsel argued
that this was enough evidence to establish reasonable doubt as to
whether defendant had control over and possession of the illegal
substance.
The jury found defendant guilty of possession of CDS.
Thereafter, the trial court sentenced defendant to a flat five-
year term of incarceration. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL
COURT'S FAILURE TO DELIVER AN ADVERSE
INFERENCE CHARGE REGARDING THE STATE'S
INEXPLICABLE LOSS OF AUDIO RECORDINGS OF
COMMUNICATIONS BETWEEN THE RESPONDING
OFFICERS AND DISPATCH. (Not Raised Below).
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POINT II
THE MAXIMUM FIVE-YEAR PRISON SENTENCE WAS
MANIFESTLY EXCESSIVE FOR SIMPLE POSSESSION OF
A PERSONAL USE QUANTITY OF METHAMPHETAMINE IN
A PRIVATE RESIDENCE.
II.
Defendant contends the trial judge erred because he did not
provide the jury with an adverse inference charge regarding the
State's failure to retain audio recordings of communications
between the responding officers and the police dispatcher.
Defendant asserts that his only defense was that he did not
knowingly possess the drugs, and for that defense to be viable,
he had to show that the drugs belonged to someone else, perhaps
someone who rented a room in the house from defendant's mother.
Defendant asserts that if the officers' communications with
dispatch revealed that the officers had encountered any other
person on the scene, such evidence would have undercut Gamble's
and Hansberry's credibility. Defendant contends that despite their
"centrality" to the case, the State did not retain the dispatch
recordings.
Defendant contends that because the recordings might have
contained evidence adverse to the State's case, the judge was
obligated to provide the jury with an adverse inference
instruction. Defendant contends the judge's failure to provide
that instruction denied him of due process and a fair trial.
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We note that defendant did not seek the adverse inference
charge at trial. Therefore, we must determine whether the judge's
failure to provide the instruction constitutes plain error, that
is, an error "clearly capable of producing an unjust result." R.
2:10-2.
"The mere possibility of an unjust result is not enough."
State v. Funderburg, 225 N.J. 66, 79 (2016). To warrant reversal,
the error must raise a "reasonable doubt . . . as to whether the
error led the jury to a result it otherwise might not have
reached." Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
In State v. W.B., 205 N.J. 588, 597 (2011), the defendant was
charged with the sexual abuse of his fourteen-year-old step-
daughter. The investigating detective destroyed the notes she took
of interviews she conducted of the defendant and the victim. Id.
at 607. The Court determined that Rule 3:13-3(c) required the
State to provide the defense with the writings of any police
officer under the prosecutor's supervision. Id. at 608.
The Court stated that because an officer's notes may be of
aid to the defense, the trial court may impose "an appropriate
sanction" if the officer has not preserved the notes of any
interviews with the defendant or key witness. Ibid. (citations
omitted). The Court ruled that prospectively, if the officer's
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notes are lost or destroyed, a defendant may be entitled to an
adverse inference charge, molded to the facts of the case. Id. at
608-09. However, because the defendant did not request the adverse
inference charge before final jury instructions, and did not raise
the issue in a motion for a new trial, the Court refused to hold
that the defendant was entitled to the instruction. Id. at 609.
In State v. Dabas, 215 N.J. 114, 117 (2013), the defendant
was found guilty of murdering his wife, based largely upon
statements the defendant made to the prosecutor's investigators.
An investigator purposefully destroyed the notes taken during the
interrogation. Ibid. The Court held that the investigator's notes
were discoverable material under Rule 3:13-3(c), and the
prosecutor violated the rule by failing to retain the notes. Id.
at 133-35.
The Court determined that the trial court erred by denying
the defendant's request for an adverse inference charge, noting
that the charge is one permissible remedy for a discovery
violation. Id. at 140-41. The Court stated that the purpose of the
charge is to "balance the scales of justice." Id. at 140. The
Court stated that the trial court should have instructed the jury
that the State had a duty to produce the pre-interview notes to
the defense, and because the State did not make the notes
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available, the jury could "draw an inference that the contents of
the notes were unfavorable to the State." Id. at 141.
Applying the principles of W.B. and Dabas, we conclude the
trial judge's failure in this case to provide the jury with an
adverse inference charge sua sponte is not reversible error. The
State's discovery obligation under Rule 3:13-3(b)(1) applies to
all "relevant material." Rule 3:13-3(b)(1)(E) requires disclosure
of, among other materials, "sound recordings" that are within the
prosecutor's "possession, custody or control."
However, in this case, defendant has not shown that the State
violated its discovery obligation by failing to retain the dispatch
recordings. Defense counsel never demanded that the State preserve
these recordings.
Moreover, defendant has not shown that the dispatch
recordings were relevant evidence. "Evidence is relevant if it
'ha[s] a tendency in reason to prove or disprove any fact of
consequence to the determination of the action.'" State v.
Hernandez, 225 N.J. 451, 462 (2016) (quoting N.J.R.E. 401).
Defendant speculates that the officers may have come upon
someone else in the house and mentioned that to the police
dispatcher. Defendant suggests the dispatch tapes would have
allowed his attorney to challenge the credibility of the officers.
However, there is no testimony or evidence supporting defendant's
9 A-3281-16T4
speculation. There is no evidence indicating that in their trial
testimony, the officers falsely stated that defendant was the only
person they found in the house.
We conclude that under the circumstances, imposition of a
discovery sanction was not warranted. The judge's failure to
provide an adverse inference charge sua sponte was not an error,
let alone an error "clearly capable of producing an unjust result."
R. 2:10-2.
III.
Defendant also argues that his sentence is excessive. He
contends the sentence should be set aside and the matter remanded
for resentencing.
"Appellate courts review sentencing determinations in
accordance with a deferential standard." State v. Fuentes, 217
N.J. 57, 70 (2014). We must affirm the sentence if: (1) the trial
court followed the sentencing guidelines; (2) the court's findings
of aggravating and mitigating factors were based on competent and
credible evidence in the record; and (3) the resulting sentence
is not clearly unreasonable so as to "shock the judicial
conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
Here, the trial court found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another
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offense); six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal
record and the seriousness of the offenses of which he had been
convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law).
The judge noted that this matter represents defendant's
fourth felony-level conviction. Defendant has a significant
criminal history that includes at least nine arrests, four of
which were as a juvenile. Defendant has three prior indictable
convictions, two of which were in Florida, and which were juvenile
cases waived to adult court.
Defendant was sentenced to a probationary term for his first
indictable conviction, but he violated the terms of probation and
was sentenced to four years in New Jersey State Prison. In
addition, at the time of sentencing, defendant had a pending first-
degree charge of maintaining or operating a CDS production
facility.
The judge found that aggravating factor three was present due
to defendant's recidivism and substance abuse. The judge gave that
factor substantial weight. The judge found aggravating factor six
due to the extent of defendant's prior criminal record and the
seriousness of the offenses involved. The judge gave that factor
"slightly substantial weight." The judge found aggravating factor
nine, noting that there was a need to deter defendant,
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specifically, and others from violating the law. The judge gave
aggravating factor nine very substantial weight.
The judge also found mitigating factor two applied, N.J.S.A.
2C:44-1(b)(2) (defendant did not contemplate that his conduct
would cause or threaten serious harm). The judge determined,
however, that this factor should be given "very slight weight."
The judge also found the record did not support the finding
of mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's
conduct neither caused nor threatened serious harm); and ten,
N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond favorably
to probation) did not apply. The judge stated that because the
police did not know what they would find in the home, defendant's
conduct could have caused or threatened serious harm. The judge
additionally stated that in view of defendant's prior criminal
record, a probationary sentence was not appropriate.
The judge found that the aggravating factors substantially
outweighed the sole mitigating factor. The judge therefore
determined that a five-year term of imprisonment was appropriate
under the circumstances. The judge also imposed appropriate
monetary fees and penalties.
On appeal, defendant argues the judge should have found
mitigating factor one, and given significant weight to mitigating
factors one and two. He further argues that the judge should have
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given minimal weight to the aggravating factors. He therefore
argues that the five-year sentence is manifestly excessive.
We disagree. We are convinced the judge followed the
applicable sentencing guidelines and the record supports the
judge's findings on the aggravating and mitigating factors. The
sentence imposed is not excessive and does not shock the judicial
conscience.
Affirmed.
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