STATE OF NEW JERSEY VS. MELVIN Y. CORREA (18-01-0003, 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NOT FOR PUBLICATION WITHOUT THE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-3944-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN Y. CORREA, a/k/a
MELVIN CORREA CORREA
and MELVIN CORREACORREA,

Defendant-Appellant.
______________________________

Submitted January 13, 2021 – Decided March 22, 2021

Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 18-01-0003.

Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM

A jury convicted defendant Melvin Y. Correa of third-degree possession

of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1),

and fourth-degree possession of drug paraphernalia with intent to distribute,

N.J.S.A. 2C:36-3. Defendant argues we should reverse his convictions because:

the court erred by denying his motion to suppress physical evidence seized

during a search of his home that was authorized by a search warrant; the State's

drug expert improperly opined at trial about defendant's intent; and the court

improperly denied defendant's motion for a mistrial and gave the jury a "further

deliberations" instruction. We are unpersuaded by defendant's arguments and

affirm.

I.

In September 2017, Union County Prosecutor's Office Detective Nicholas

Veltre submitted an affidavit in support of an application for a search warrant

for defendant's apartment in a building in Elizabeth. In his affidavit, Veltre

explained he has been employed as a detective since 2013 and he conducts

narcotics investigations daily.

Veltre also stated he received information from a confidential informant

(CI) about a man involved in distributing cocaine in Elizabeth. The CI advised

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Veltre the individual received orders for cocaine over the telephone and

arranged to meet his customers at locations he designated to complete the

transactions. The CI said the individual stored the cocaine in his residence and

vehicles and conducted drug sales using a black Mitsubishi SUV and a black

Mitsubishi sedan. The CI provided Veltre with the license plate numbers of the

two vehicles.

The CI provided Veltre with a physical description of the man. Based on

the information provided by the CI, Veltre obtained a photograph of defendant

from the Division of Motor Vehicles. When shown the photograph, the CI

identified defendant as the individual he described as involved in the distribution

of cocaine.

During the week of September 4, 2017, Veltre conducted surveillance and

observed defendant arrive at the building later confirmed as defendant's

residence. Defendant drove a black Mitsubishi SUV with the license plate

number the CI provided. Veltre saw defendant park the vehicle and then walk

to a black Mitsubishi sedan with the license plate number the CI had provided.

The sedan was parked in the driveway of defendant's residence. Defendant

entered the sedan and moved around objects in the vehicle.

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 During the week of September 4, 2017, the CI made a controlled purchase

of cocaine from defendant. As Veltre explained in the search warrant affidavit,

while in Veltre's and another detective's presence, the CI called defendant at a

number defendant previously provided to the CI. During the telephone call, the

CI made arrangements to purchase cocaine from defendant. The CI was

searched by the police and found not to be in possession of any cocaine, and

then, while under constant surveillance, the CI travelled to a location designated

by defendant. Law enforcement officers observed defendant arrive at the

location in the Mitsubishi sedan. The officers saw the CI and defendant engage

in a hand-to-hand transaction. Following the transaction, the police observed

defendant drive the sedan directly to his residence, where he parked the vehicle

and entered the residence through a side door.

Meanwhile, while under constant surveillance, the CI returned to meet the

other officers. The CI told Veltre that following a brief conversation at the

designated location, defendant provided cocaine in exchange for the currency

Veltre had given the CI for the controlled purchase. The substance the CI

purchased from defendant tested positive for cocaine.

During the week of September 15, 2017, the CI made a second controlled

purchase of cocaine from defendant. The purchase was arranged during a phone

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call between the CI and defendant. The CI contacted defendant on a number

defendant provided the CI, and Veltre and another detective were present during

the call. Shortly after the call, defendant was observed exiting the side door of

his residence, entering the Mitsubishi SUV, and driving to the location he had

designated for the transaction with the CI.

The police again searched the CI to confirm the CI was not in possession

of any controlled dangerous substances, and officers thereafter surveilled the CI

during the CI's travel to the location defendant had designated. Police officers

observed defendant arrive at the location in the Mitsubishi SUV and engage in

a hand-to-hand exchange with the CI.

Following the exchange, the CI remained under constant surveillance, and

the CI met with law enforcement officers. The CI explained defendant had

turned over cocaine in exchange for the currency the police provided the CI.

The substance defendant sold the CI tested positive for cocaine.

Veltre's search warrant affidavit described the building in which

defendant lived as a three-story, multi-family structure. The building's address

is listed as defendant's residence on his driver's license. Veltre's affidavit

explains that during the investigation, officers conducted surveillance of the

building to identify defendant's apartment. Officers knocked on a side door of

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the building, and defendant answered. Defendant explained to the officers that

he resided in one of two basement apartments and that his apartment could only

be accessed using the side door. Defendant also said the other basement

apartment could only be accessed through the rear door.

Based on Veltre's affidavit, the court issued a search warrant for

defendant's basement apartment residence, defendant's person, and the two

Mitsubishi vehicles. Officers executed the warrant on October 3, 2017 and

seized from the residence a black AWS scale and $8,770 in cash, consisting of

twenty-six $100 bills, forty-five $50 bills, one hundred and ninety $20 bills,

eleven $10 bills, and two $5 bills. The officers also seized a bag containing a

blender with cocaine residue, a digital scale, cocaine, mannitol, lactose bottles ,

a metal spoon with cocaine residue, a cardboard box containing numerous

baggies, baggies containing cocaine, a roll of duct tape, an Express loan card

addressed to defendant, and a Ziploc bag containing numerous plastic bags.

Additionally, the police seized sixty dollars, a silver husky knife, and a black

flip phone from defendant's person.

A grand jury indicted defendant for third-degree possession of CDS,

cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS, cocaine,

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3);

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third-degree money laundering, N.J.S.A. 2C:21-25(a); and fourth-degree

possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36 -3.

Defendant moved to suppress the evidence seized from his residence

pursuant to the search warrant. In a detailed written decision, the court denied

defendant's motion, finding Veltre's affidavit established probable cause to

search defendant's residence.

At trial the State called several witnesses, including Veltre, who testified

about the execution of the warrant and the items seized during the search of

defendant's residence, and Detective Anthony Reimer, who testified as an expert

in the field of the use, packaging, and distribution of narcotics.

Reimer testified half a gram to a gram of cocaine can be sold on the street

for around $50 to $75. He opined digital scales are used to weigh controlled

dangerous substances, a blender can be used to mix narcotics with a cutting

agent to expand the amount of product a person would have, and lactose and

mannitol are common cutting agents. Reimer further testified a gram of a

substance containing mannitol and lactose would typically sell for the same

amount as pure cocaine. Reimer also opined that the most common form of

payment in narcotics sales is cash and that "currency when located

with . . . narcotics activity could be proceeds from narcotics sales."

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 Defendant testified on his own behalf. He acknowledged he resided in the

apartment that was searched, but he denied ownership of the cocaine and denied

ever seeing cocaine in the apartment. He also denied knowledge of the blender,

mannitol, and lactose found in his apartment. Defendant explained the cash

found in the safe was from his employment and from selling his possessions in

Puerto Rico to finance his move to the United States.

During its deliberations, the jury sent the court a note, stating the jurors

were unable to reach a verdict on the charges and that they did "not believe

continued discussion will reach a decision." The jury asked, "How do we

proceed?" Defendant moved for a mistrial, and the court denied the motion.

The court instructed the jurors to continue deliberating, but also instructed that

if the jurors determined "further deliberations will be futile," they should notify

the court in another note.

After further deliberating, the jury found defendant a guilty of third-

degree possession of CDS and fourth-degree possession of drug paraphernalia

with intent to distribute. The jury could not reach a unanimous verdict on the

third-degree possession of CDS with intent to distribute and third-degree money

laundering charges. Those charges were later dismissed. The court later

sentenced defendant to twenty days in jail and three years of probation for

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possession of CDS, to run concurrent to defendant's sentence of eighteen -

months' probation for possession of drug paraphernalia with intent to distribute.

Defendant appeals from his convictions. He presents the following

arguments for our consideration:

POINT I

THE MOTION TO SUPPRESS EVIDENCE SHOULD
HAVE BEEN GRANTED BECAUSE THE SEARCH
WARRANT APPLICATION FAILED TO
ESTABLISH A NEXUS BETWEEN THE HAND-TO-
HAND DRUG TRANSACTIONS ON THE STREET
AND DEFENDANT'S RESIDENCE.

POINT II

THE STATE'S DRUG EXPERT'S TESTIMONY
VIOLATED THE HOLDINGS OF STATE V. CAIN
AND STATE V. SIMMS BY OPINING DIRECTLY
ON DEFENDANT'S INTENT, WHICH WAS AN
ULTIMATE ISSUE OF FACT SOLELY FOR THE
JURY, REQUIRING REVERSAL.

POINT III

THE TRIAL COURT SHOULD HAVE DECLARED A
MISTRIAL ONCE THE JURY INDICATED THAT IT
WAS "UNABLE TO REACH AGREEMENT ON ANY
CHARGES" AND SHOULD NOT HAVE ISSUED A
"FURTHER DELIBERATIONS" INSTRUCTION.

A. The Requested Mistrial Should Have Been Granted
After the Jury's Initial Deadlock Announcement.

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 B. It Was Improper for the Judge to Issue a "Further
Deliberations" Instruction.
II.

We first consider defendant's argument the court erred by denying his

motion to suppress the evidence seized from his residence. Defendant contends

Veltre's affidavit did not establish a sufficient nexus between defendant's

residence and defendant's drug sales to the CI to establish probable cause to

search the residence. We are not persuaded.

Generally, our review of a motion to suppress is limited. State v.

Robinson, 200 N.J. 1, 15 (2009). We will "uphold a trial court's factual

findings . . . [when] 'supported by sufficient credible evidence in the record.'"

State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224,

243 (2007)). "However, we owe no deference to conclusions of law made by

lower courts in suppression decisions, which we instead review de novo." State

v. Boone, 232 N.J. 417, 426 (2017).

Both our state and federal constitutions "provide in nearly identical

language that 'no warrant shall issue except upon probable cause, supported by

oath or affirmation, and particularly describing the place to be searched and the

papers and things to be seized.'" State v. Marshall, 199 N.J. 602, 610 (2009)

(quoting N.J. Const. art. I, ¶ 7); U.S. Const. amend. IV. To properly issue a

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search warrant, a "judge must be satisfied that there is probable cause to believe

that a crime has been committed, or is being committed, at a specific location or

that evidence of a crime is at the place sought to be searched." State v. Sullivan,

169 N.J. 204, 210 (2001).

Although not easily defined, probable cause "is generally understood to

mean . . . 'more than mere naked suspicion.'" State v. Gathers, 234 N.J. 208,

220 (2018) (quoting State v. Keyes, 184 N.J. 541, 553 (2005)). It exists when

officers have "a 'well[-]grounded' suspicion that a crime has been or is being

committed." Sullivan, 169 N.J. at 211 (quoting State v. Waltz, 61 N.J. 83, 87

(1972)). A probable cause finding requires that a court "make a practical,

common sense determination whether, given all of the circumstances, 'there is a

fair probability that contraband or evidence of a crime will be found in a

particular place.'" State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v.

Moore, 181 N.J. 40, 46 (2004)); see also State v. Chippero, 201 N.J. 14, 28

(2009). When a search is made pursuant to a warrant, probable cause is

determined "based on the information contained within the four corners of the

supporting affidavit, as supplemented by sworn testimony before the issuing

judge." Marshall, 199 N.J. at 611 (quoting Schneider v. Simonini, 163 N.J. 336,

363 (2000)).

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 "A search . . . executed pursuant to a warrant is 'presumptively valid,' and

a defendant challenging the issuance of that warrant has the burden of proof to

establish a lack of probable cause . . . ." Boone, 232 N.J. at 427 (quoting Watts,

223 N.J. at 513-14). Thus, we "accord substantial deference to the discretionary

determination resulting in the issuance of the [search] warrant," ibid. (alteration

in original) (quoting State v. Jones, 179 N.J. 377, 388 (2004)), and will generally

err on the side of sustaining the search when there is doubt as to the factual

adequacy offered to establish probable cause, Jones, 179 N.J. at 388-89.

As noted, defendant contends Veltre's affidavit did not establish probable

cause to search defendant's home. Defendant argues the affidavit demonstrates

only that defendant sold cocaine from his two vehicles and the affidavit did not

establish a sufficient nexus between the two controlled buys and defendant's

home to support a finding of probable cause there was evidence of a crime in

the home. Defendant also claims the affidavit demonstrated nothing more than

defendant sold cocaine at the locations the two controlled buys took place , and

the affidavit lacked sufficient information to establish probable cause defendant

distributed cocaine from his residence.

Based on our review of the affidavit, we are convinced it amply supports

the warrant judge's finding of probable cause to search defendant's residence.

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The affidavit explained that during the CI's first telephone call to defendant,

defendant agreed to sell cocaine to the CI. When he arrived at the location,

defendant was in possession of cocaine, which he handed to the CI in exchange

for currency. Following that transaction, defendant returned directly to his

residence.

The affidavit further shows that shortly after agreeing to make the second

cocaine sale to the CI, defendant was observed leaving his residence, entering

one of his vehicles, driving to the location he designated, and delivering cocaine

to the CI in exchange for currency.

"The totality of the circumstances must be considered in determining

whether there is probable cause." O'Neal, 190 N.J. at 612. Here, those

circumstances include defendant immediately going to his residence after

receiving currency for the cocaine he had just sold to the CI, and, days later,

leaving his residence and going directly to a designated location with the cocaine

he sold to the CI. Those circumstances support a "common sense determination"

that there is a "fair probability" defendant not only stored the cocaine that he

sold in his home, but that he also kept the proceeds of his sales—the currency—

there. See ibid. The motion court therefore properly concluded Veltre's

affidavit supported a finding of probable cause to search defendant's residence.

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See State v. Myers, 357 N.J. Super. 32, 39-40 (App. Div. 2003) (finding

probable cause to support a warrant to search a defendant's home where officers

observed defendant leaving his home and engaging in drug transactions).

We reject defendant's reliance on Boone to support his claim that the

controlled "buys did not offer any basis to conclude that drugs were stored" at

his residence. In Boone, the Court found a warrant application to search one

unit in a multi-unit complex did not establish probable cause because "there was

nothing in the affidavit to indicate where [the defendant] lived, how police knew

which apartment was his, or how the apartment was connected to his drug

dealing." 232 N.J. at 430. Here, officers observed defendant enter and exit the

side door of the building directly before and after drug sales, and they confirmed

defendant's vehicles were registered to him at the building address. In addition,

defendant told two officers prior to the issuance of the warrant that he lived in

the basement apartment and that his apartment was the only apartment that could

be accessed through the building's side door. Thus, unlike in Boone, the search

warrant affidavit established "a fair probability that contraband or evidence of a

crime [would] be found" at defendant's apartment that was identified in the

affidavit and for which the search warrant was expressly issued. See Moore,

181 N.J. at 46; see also Myers, 357 N.J. Super. at 39-40.

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 Defendant did not sustain his burden of establishing the search of his

residence pursuant to a warrant was not supported by probable cause. We affirm

the court's denial of defendant's suppression motion.

III.

Defendant next claims his convictions should be reversed because the

State's expert, Reimer, improperly offered an opinion about defendant's intent

to use various items seized from defendant's home. Defendant argues Reimer's

testimony constituted indirect, and impermissible, opinion testimony defendant

had an intent to distribute drugs.

We review the admissibility of expert testimony applying the abuse of

discretion standard. State v. Summers, 176 N.J. 306, 312 (2003). Expert

testimony is admissible when "scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue." N.J.R.E. 702. To be admissible under N.J.R.E. 702, "the expert

testimony must 'concern[] a subject matter beyond the ken of an average juror.'"

State v. Covil, 240 N.J. 448, 464 (2020) (alteration in original) (quoting State v.

Cain, 224 N.J. 410, 420 (2016)). So long as the expert testimony involves a

"subject matter . . . beyond the ken of the average juror" and "assists 'the trier of

fact,'" State v. Nesbitt, 185 N.J. 504, 514 (2006) (citations omitted), it is

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admissible, even if the testimony "embraces an ultimate issue to be decided by

the trier of fact," State v. Simms, 224 N.J. 393, 403 (2016) (quoting N.J.R.E.

704). "Expert testimony is not necessary to tell the jury the 'obvious' or to

resolve issues that the jury can figure out on its own." Ibid. Instead, such

"testimony should be limited to areas that are beyond the understanding of the

jury." State v. Sowell, 213 N.J. 89, 102 (2013).

In criminal drug cases, experts may "help jurors understand the indicia of

a distribution operation, such as how drug traffickers package and process drugs

for distribution," or they may "shed light on the significance of the quantities

and concentrations of drugs, the value of drugs, the use of identifiable logos on

drug packaging, and the function of drug paraphernalia, e.g., scales, baggies,

and cutting agents." Cain, 224 N.J. at 426; see also Simms, 224 N.J. at 408

(finding an expert may explain the purpose of stamping a logo on drug

packaging found in the defendant's vehicle). However, "an expert witness may

not opine on the defendant's state of mind. Whether a defendant possessed a

[CDS] with the intent to distribute is an ultimate issue of fact to be decided by

the jury." Cain, 224 N.J. at 429; see also Simms, 224 N.J. at 409.

To be sure, Reimer testified about the purpose of digital scales, blenders,

and cutting agents in drug distribution cases. He explained scales are used to

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weigh drugs, a blender can be used to mix narcotics with a cutting agent to

expand the amount of product a person has, and lactose and mannitol are

common cutting agents. He also testified that half a gram to a gram of cocaine

sold for about $50 to $75 on the street, and that a substance containing mannitol

or lactose sells for approximately the same amount as pure cocaine. Reimer

further opined the most common form of payment in narcotics sales is cash and

that "currency when located with . . . narcotics activity could be proceeds from

narcotics sales."

Reimer's testimony about the value of cocaine sold on the street, the

functions of drug paraphernalia, and the typical use of cash in drug transaction s

was properly admitted because it provided information beyond the ken of the

average juror that was helpful in assisting the triers of fact understand the

evidence. See Cain, 224 N.J. at 426. In providing that testimony, Reimer did

not offer an opinion on intent generally or defendant's intent in particular. He

instead directly explained only how items, such as scales, a blender, lactose, and

mannitol, are used to prepare drugs for distribution.

Contrary to defendant's claim, we do not find the mere fact that Reimer

offered an opinion concerning the manner in which the items recovered from

defendant's home might be used for drug distribution as expressing an opinion

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on defendant's intent or guilt. Questions posed to a drug distribution expert may

properly "incorporate the evidence of record, such as the quantity of drugs,

packaging materials, scales, and money discovered, and the expert can render

an opinion on their significance in a drug-distribution operation." Id. at 429.

Reimer properly offered testimony concerning the pertinence of the items seized

from defendant's residence, including the currency found in defendant's safe, to

drug-distribution activities. His opinions "help[ed the] jurors understand the

indicia of a [drug] distribution operation," but he did not "express an opinion,"

directly or indirectly, "on matters that fall within the ken of the average juror or

offer an opinion about . . . defendant's guilt." Id. at 426. We find no error in

the admission of his testimony.

IV.

Defendant contends the court erred by denying his motion for a mistrial

following the jury's note stating it was "unable to reach agreement" and did "not

believe a continued discussion [would] reach a decision," and asking how it

should proceed. Defendant argues the court erred by giving an inconsistent and

confusing jury instruction that combined the Model Jury Charges for "Judge's

Inquiry When Jury Reports Inability to Reach Verdict" and "Judge's Instructions

on Further Jury Deliberations." See Model Jury Charges (Criminal), "Judge's

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Inquiry When Jury Reports Inability to Reach Verdict" (approved June 10, 2013)

and Model Jury Charges (Criminal), "Judge's Instructions on Further Jury

Deliberations" (approved Jan. 14, 2013). Defendant also asserts the court's

instruction was coercive.

The decision to grant or deny a mistrial rests within the trial court's sound

discretion. State v. Harvey, 151 N.J. 117, 205 (1997). "[A]n appellate court

will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse

of discretion that results in a manifest injustice." State v. Patterson, 435 N.J.

Super. 498, 510 (App. Div. 2014) (quoting State v. Jackson, 211 N.J. 394, 407

(2012)).

When a jury declares it is unable to reach a unanimous verdict, "the

decision whether to grant a mistrial turns on whether the duration of the

deliberations balanced against the length of the trial and the complexity of the

proofs shows the jury has made a good-faith effort to reach a sustainable

verdict." State v. Gleaton, 446 N.J. Super. 478, 514 (App. Div. 2016) (quoting

State v. Dorsainvil, 435 N.J. Super. 449, 481 (App. Div. 2014)). If, after

weighing these factors, a court "is not satisfied that all possibilities of reaching

a verdict have been exhausted," it "may send a jury back for further

deliberations." State v. Harris, 457 N.J. Super. 34, 50 (App. Div. 2018) (quoting

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State v. Carswell, 303 N.J. Super. 462, 478 (App. Div. 1997)). In contrast, "if

the jury has reported a definite deadlock after a reasonable period of

deliberations," then a court's instruction to the jury to continue deliberating

constitutes an abuse of discretion. State v. Adim, 410 N.J. Super. 410, 423 (App.

Div. 2009) (quoting State v. Czachor, 82 N.J. 392, 407 (1980)).

In its instruction to continue deliberations, a court "may not coerce or

unduly influence the jury in reaching a verdict." Harris, 457 N.J. Super. at 50

(quoting Carswell, 303 N.J. Super. at 478); see State v. Figueroa, 190 N.J. 219,

227, 240-43 (2007) (reversing and remanding after finding the court's

supplemental charge that it would be around all weekend and "as long as it takes

[the jury] to go through this process" was coercive). We have explained that

when instructing a jury that reports being deadlocked,
a trial judge must be especially vigilant to avoid
communicating a results-oriented message that could
be perceived as intolerant of dissent and antagonistic to
the free expression of strongly held beliefs that may not
be shared by a majority of the deliberating jurors.

[Gleaton, 446 N.J. Super. at 515 (quoting Dorsainvil,
435 N.J. Super. at 481).]

Measured against these principles, we discern no basis to conclude the

court abused its discretion by denying defendant's motion for a mistrial. The

jury deliberated less than an hour on the first day of its deliberations, and, on

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the second day, the jury deliberated approximately four hours and fifteen

minutes before submitting the note advising it was "unable to reach agreement"

and did "not believe a continued discussion [would] reach a decision." 1 Given

that the jurors were required to determine defendant's guilt or innocence on four

separate charges and the jury had deliberated less than five hours, we do not find

the court abused its discretion by denying defendant's motion for a mistrial and

directing the jurors to continue deliberating. See State v. Childs, 204 N.J. Super.

639, 646-48 (App. Div. 1985) (holding a court did not abuse its discretion by

directing a jury to continue deliberating when the jury had only deliberat ed

1
We calculate the duration of the jury deliberations based on the information
reflected in the trial transcripts. The transcripts reflect the jury deliberated for
forty minutes, from 3:36 p.m. to 4:16 p.m., on the first day of its deliberations.
On the second day of deliberations, the transcript reflects the jury's deliberations
were interrupted at 9:21 a.m. while the court addressed a jury question. We
assume the deliberations commenced at approximately 9:00 a.m., and thus
conclude the jury deliberated for twenty-one minutes prior to the 9:21 a.m.
interruption. The transcript further reflects the jury returned to the jury room at
9:27 p.m. and deliberated for one hour and thirty-four minutes until 11:01 a.m.,
when the court excused the jury for a break. At 11:48 a.m. the break ended, and
the court played back testimony for the jury that it had requested. The jury
continued deliberations for twenty minutes from 12:20 p.m. until it was excused
for a one-hour lunch break at 12:40 p.m. The jury deliberated for an additional
two hours, from 1:40 p.m. to 3:40 p.m., at which time it sent the note indicating
it could not reach a verdict and believed further continued discussions would
not result in a decision. Thus, we discern the jury deliberated for two hundred
and fifty-five minutes, or four-hours and fifteen minutes, on the second day of
deliberations.
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approximately six or seven hours, the case involved multiple charges, it was the

jury's first communication it was deadlocked, and the jurors did not indicate they

would never reach a verdict); see also State v. Ross, 218 N.J. 130, 138, 145

(2014) (finding no abuse of discretion when a judge instructed the jurors to

continue deliberating even though they had already deliberated for five days and

indicated they were unable to reach a verdict on any count). Moreover, the jury's

note requested that the court provide guidance as to how to proceed in light of

the jury's belief that further discussion would not result in a decision. See Ross,

218 N.J. at 145 (explaining the trial court properly "instructed the jury to resume

deliberations" where the jury "did not signal an intractable divide,"

"communicated that its effort to reach consensus on the issues had fallen short,"

and requested "direction in light of" the fact it was "unable to reach a unanimous

verdict").

Under the circumstances presented, it was within the court's discretion to

direct the jurors to continue deliberating, see id. at 138, 145; Childs, 204 N.J.

Super. at 646-48, and the court's further deliberations instruction was in accord

with the model jury charge, see Model Jury Charges (Criminal), "Judge's

Instructions on Further Jury Deliberations" (approved Jan. 14, 2013). Defendant

did not object to the court's instruction at trial. We therefore review defendant's

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argument under the plain error standard and must determine whether defendant

demonstrates "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." State v. Wakefield, 190 N.J. 397,

473 (2007) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Defendant

makes no such showing here.

In addition, to ensure its instruction was not coercive, the court expressly

instructed the jury that it should immediately inform the court if it had

determined further deliberations would be futile. The court instructed the jury

as follows:

If you truly feel that further deliberations will not be
beneficial, and you feel that you have reached the point
where further deliberations will be futile, I would ask
you after you return to the jury deliberation room and
have discussed the issue among yourselves to advise me
of that position in another note.

The instruction is materially the same as the model jury charge responding to a

jury's report of an inability to reach a verdict. See Model Jury Charges

(Criminal), "Judge's Inquiry When Jury Reports Inability to Reach Verdict"

(approved June 10, 2013). Thus, contrary to defendant's claim the court's

instruction was coercive, the court clearly and expressly informed the jury it

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should report to the court if it determined further deliberations wou ld be futile.

Consistent with the instruction, the jury later reported it was unable to reach a

verdict on two of the counts charged in the indictment.

Defendant's reliance on our decision in Adim is misplaced. In Adim, the

jury twice indicated it was deadlocked. 410 N.J. Super. at 420. Following the

second reported deadlock, the court instructed the jury it had an "oath[]" and

"responsibility" to determine the facts and "to return a just and true verdict." Id.

at 426. We found the instruction—along with the trial court's act of outlining

the evidence in the case to the jury—coercive, and accordingly reversed and

remanded. Id. at 426-27, 430.

Unlike in Adim, the court here did not state or imply the jurors had a

responsibility to return a verdict, did not outline the evidence to the jury, and

did not require the jurors to continue deliberating after they indicated a second

deadlock. To the contrary, the court instructed the jury to continue its

deliberations in accordance with the model jury charge, and further informed the

jury that it should report to the court if it determined further deliberations would

be futile. The court's denial of defendant's motion for a mistrial and its

instructions to the jury to continue deliberating were therefore proper. See State

v. Harris, 156 N.J. 122, 184 (1998) (finding no error in the court's instruction to

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the jury to continue deliberating but not to "surrender" their views or change

their opinion to agree with the other jurors).

Affirmed.

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