STATE OF NEW JERSEY VS. JUAN GUERRERO-ESTRADASTATE OF NEW JERSEY VS. JUAN M. FLORES SANTOS(15-01-0008, HUDSON COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2375-15T1
A-2821-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN GUERRERO-ESTRADA, a/k/a
JUAN C. ESTRADA, JUAN C.
GUERRERO, JUAN CARLOS GUERRERO,
JUAN C. GUERRERO-ESTRADA, JUAN
C. GUERREOESTRADA,

Defendant-Appellant.
______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN M. FLORES SANTOS, a/k/a
JUAN M. FLORES-SANTOS,

Defendant-Appellant.
_______________________________

Submitted October 12, 2017 – Decided November 2, 2017

Before Judges Alvarez and Currier.
 On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-01-0008.

Joseph E. Krakora, Public Defender, attorney
for appellants (Kevin G. Byrnes, Designated
Counsel, and on the brief for A-2375-15; Tamar
Lerer, Assistant Deputy Public Defender, of
counsel and on the briefs for A-2821-15).

Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah D. Brigham,
Deputy Attorney General, of counsel and on the
briefs).

PER CURIAM

Defendants Juan Guerrero-Estrada and Juan Flores Santos

appeal from the denial of their respective suppression motions and

subsequent convictions following a joint trial.1 Flores Santos

also contends that the trial court failed to merge two offenses

at the time of sentencing. After a review of the arguments in

light of the record and applicable principles of law, we affirm.

Both defendants were charged in an indictment with second-

degree conspiracy, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35-

5(b)(8); first-degree possession with intent to distribute a

controlled dangerous substance (CDS) (here, methamphetamine),

N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and 2C:2-6; first-degree

distribution of a CDS, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(8), and

1
We have consolidated these appeals for the purposes of this
opinion.

2 A-2375-15T1
2C:2-6; and third-degree possession of a CDS, N.J.S.A. 2C:35-

10(a)(1) and 2C:2-6.

We derive the facts from the testimony presented at the

suppression hearing. Several detectives and other members of the

New Jersey State Police were doing investigative work in a parking

lot of a large box store on an unrelated narcotics case. Detective

Hugh Ribeiro noticed a car parked at the far end of the lot in an

area reserved normally for tractor trailers. The vehicle was

facing outwards towards incoming traffic so that its occupants

could see vehicles coming into the lot. Its two occupants were

later identified as defendants; Flores Santos was holding a can

of beer as he sat in the passenger seat.

Based on these observations, the officers thought the car

might be involved in the case they were investigating. Detective

Sergeant Victorio Flora drove by defendants' vehicle. The Kansas

license plate number revealed the owner to be Guerrero-Estrada.

As the police were watching, defendants' car slowly circled

the store and then backed into another space in the far side of

the lot by the tractor trailers, again facing incoming traffic.

Detective Flora described this maneuver "as if [the car] were

looking for somebody or scanning the parking lot for law

enforcement personnel." He also stated that the manner in which

the car was facing towards oncoming traffic and parked with the

3 A-2375-15T1
tractor trailers far away from the store entrance was suspicious.

They therefore continued to watch the car even though the officers

determined it was likely unrelated to their original

investigation.

The officers next observed a Zipcar2 driving into the parking

lot and coming to a stop in front of defendants' car. Co-defendant

Juan Nunez got out of the Zipcar and joined Guerrero-Estrada, who

had opened his trunk and was standing at the back of his car.

Detective Flora testified that it appeared that Guerrero-Estrada

was directing Nunez to move his car to a position behind his own

vehicle so it was somewhat hidden by the parked tractor trailers.

After another conversation, Nunez pulled his car alongside

defendants' vehicle so the windows were aligned. The detectives

then saw a white and red plastic bag thrown from the passenger

side of defendants' car into the rear of the Zipcar. The Zipcar

then headed toward the exit of the parking lot.

The police decided to conduct investigative traffic stops on

both vehicles. The prosecutor asked Detective Flora: "[a]nd why

did you and members of your team decide to stop those two

vehicles?" Flora responded: "Because we all felt that an illicit

2
Zipcar is an American car-sharing company which "provides
automobile reservations to its members, billable by the minute,
hour[,] or day." Zipcar, https://en.wikipedia.org/wiki/Zipcar
(last visited Oct. 17, 2017).

4 A-2375-15T1
transaction just occurred at that location right then and there."

The detective continued, explaining that narcotics transactions

often take place in parking lots and shopping plazas, particularly

in close proximity to a highway, because narcotic traffickers can

"hide in plain sight." He stated that law enforcement officers

perform surveillance work in these areas as well because they too

can "hide in plain sight."

Following the traffic stop, defendants consented to searches

of the vehicles. The bag found in the Zipcar contained five bricks

of crystal methamphetamine. Defendants moved to suppress the

seizure of the narcotics, arguing that the police lacked reasonable

suspicion to conduct an investigatory stop. In an oral decision,

Judge Mitzy Galis-Menendez noted that an officer must have

reasonable suspicion to believe that a motorist has engaged in or

is about to engage in criminal activity in order to conduct a

motor vehicle stop. A determination of reasonable suspicion

consists of the "events which occurred leading up to the stop and

then the decision whether [those] . . . facts viewed from [the]

standpoint of an objectively reasonable police officer amount to

reasonable suspicion."

The judge recounted that Guerrero-Estrada was driving a

vehicle with out-of-state plates, the car circled the area while

Guerrero-Estrada was on his cell phone, and then he parked again

5 A-2375-15T1
in a parking space far from the store entrance. After Guerrero-

Estrada had parked, Nunez drove into the area in a rental car.

Guerrero-Estrada and Nunez spoke while standing by the trunk of

Guerrero-Estrada's car, following which Nunez moved his car so it

was parallel to the other vehicle. The police then observed a

weighted bag tossed from one car into another. In looking at the

totality of the circumstances, and finding Detective Flora to be

credible, Judge Galis-Menendez concluded that the officers had

reasonable and articulable suspicion to believe that they had

observed criminal activity. The motion to suppress was denied.

Prior to trial, Nunez pled guilty to second-degree conspiracy

to distribute narcotics. He testified at trial that he was at the

shopping plaza to pick up drugs, met with Guerrero-Estrada and

Flores Santos for that purpose, and the drugs were tossed from

Guerrero-Estrada's car into Nunez's car. Both defendants were

convicted on all charges and sentenced to prison terms of ten

years. At sentencing, the judge merged the second-degree

conspiracy count with both the first-degree possession with intent

to distribute a CDS count and the first-degree distribution of a

CDS count. The judge also merged the third-degree possession of

a CDS count with the first-degree possession with intent to

distribute a CDS count.

On appeal, Guerrero-Estrada raises the following arguments:

6 A-2375-15T1
 POINT ONE: THE DEFENDANT'S RIGHT TO BE FREE
FROM UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEED BY THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. 7
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE UNLAWFUL DETENTION.

POINT TWO: THE DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN
GRANTED.

POINT THREE: THE DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW AND RIGHT TO CONFRONTATION AS
GUARANTEED BY THE UNITED STATES CONSTITUTION
AND THE NEW JERSEY CONSTITUTION WERE VIOLATED
BY THE ADMISSION OF HIGHLY PREJUDICIAL HEARSAY
OPINION EVIDENCE. (Not Raised Below)

A. The State Improperly Proffered
Police Opinion Evidence that There
Had Been a Drug Transaction

B. The Defendant's Right to Confront
Witnesses Was Violated by the
Admission of Hearsay Statements of
Absentee Police Officers
Implicating the Defendant in the
Commission of the Crimes

POINT FOUR: 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 WHEN THE JURORS WERE
NOT INSTRUCTED ON ALL THE ESSENTIAL ELEMENTS
OF CONSPIRACY, INTENT TO DISTRIBUTE, AND
DISTRIBUTION OF CDS. (Not Raised Below)

Flores Santos reiterates these contentions in his appeal, and adds

an additional argument:

POINT V: THE COUNT OF POSSESSION WITH INTENT
TO DISTRIBUTE MUST MERGE WITH THE DISTRIBUTION
COUNT. MOREOVER, THE SENTENCING COURT ERRED

7 A-2375-15T1
 IN ORDERING DEFENDANT TO PAY FINANCIAL
PENALTIES ON MERGED OFFENSES.

We begin by addressing defendants' argument that the trial

judge erred in not suppressing the narcotics and other evidence

obtained subsequent to a search of the vehicles. In reviewing a

motion to suppress, "we accord deference to the factual findings

of the trial court." State v. Scriven, 226 N.J. 20, 32 (2016).

That is particularly so as "to those findings of the trial judge

which are substantially influenced by his [or her] opportunity to

hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy." State v. Johnson, 42 N.J.

146, 161 (1964). If our review satisfies us that the trial court's

findings could reasonably have been reached on sufficient,

credible evidence present in the record, our task is complete and

we will not disturb the result. Id. at 162. Our review of the

trial court's legal conclusions is plenary. State v. Rockford,

213 N.J. 424, 440 (2013).

As Judge Galis-Menendez noted, it is well-settled that "[a]

police officer may conduct an investigatory stop if, based on the

totality of the circumstances, the officer had a reasonable and

particularized suspicion to believe that an individual has just

engaged in, or was about to engage in, criminal activity." State

v. Stovall, 170 N.J. 346, 356 (2002) (emphasis added) (citing

8 A-2375-15T1
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d

889, 906 (1968)).

Here, Flora believed he had seen criminal activity. Flora's

suspicion was based on the movements of defendants' car and its

location in the parking lot, and his knowledge that narcotics

trafficking often takes place in large parking lots within close

proximity to a highway. The judge was uniquely able to observe

Flora's demeanor at the motion hearing and she found the detective

to be credible. Her findings are entitled to deference. State

v. Walker, 213 N.J. 281, 290 (2013) (finding that the court must

give deference to the trial court's credibility findings,

especially when a sole witness presents largely uncontested

testimony that was challenged on cross-examination).

At the conclusion of the State's case, defendants moved for

acquittal on several of the counts, arguing that they could not

be charged with possession with intent to distribute or

distribution of a CDS because defendants cannot intend to

distribute to each other drugs they already jointly possess.

Defendants alleged that they and Nunez jointly and constructively

possessed the methamphetamine at all times, and one cannot

"conspire to possess with an intent to distribute with somebody

else with whom you already have shared possession over it."

9 A-2375-15T1
 In response, the State argued that Guerrero-Estrada and

Flores Santos possessed the drugs in their car and acted together

to transfer the narcotics into Nunez's vehicle. The judge denied

the acquittal motion, concluding that the State had provided

sufficient evidence that defendants possessed and distributed the

narcotics. She also noted that Nunez testified that he had a

phone conversation with Guerrero-Estrada who informed him where

to pick up the package, and she found this to be additional

evidence for a jury to determine there was an agreement to

distribute.

In our review, we apply the same standard as did the trial

judge, and deny a motion under Rule 3:18-1 if "viewing the State's

evidence in its entirety, be that evidence direct or

circumstantial," and giving the State the benefit of all reasonable

inferences, "a reasonable jury could find guilt beyond a reasonable

doubt." State v. Reyes, 50 N.J. 454, 459 (1967). Based on our

review of the record and applicable law, we deem this argument

lacks sufficient merit to warrant any discussion in addition to

the comments set forth in the trial court's oral ruling of December

8, 2015. R. 2:11-3(e)(2). There was ample evidence presented by

the State for the jury to consider and convict defendants on each

charged offense.

10 A-2375-15T1
 Defendants contend that a portion of Detective Flora's

testimony was improper opinion evidence and impermissible hearsay.

Flora testified that, after observing the two vehicles for a period

of time as described, "myself and my unit members believed that

an illicit transaction took place so we decided to conduct

simultaneous investigative motor vehicle stops on both vehicles."

Defendants argue that this testimony exceeded the limits of the

lay testimony that police officers may present, violating the

precepts established in State v. McLean, 205 N.J. 438 (2011), and

contend that the officer improperly opined on the ultimate issue

in the case. Defendants did not object to this testimony at trial

and we therefore review it under a plain error standard; defendants

must show that it is an error "of such a nature as to have been

clearly capable of producing an unjust result." R. 2:10-2.

In McLean, the prosecutor asked a police detective at trial

if he thought "that [what he observed] was a hand-to-hand drug

transaction." McLean, supra, 205 N.J. at 446. The officer

responded affirmatively. Id. at 446-47. The Court found the

testimony to be improper. Id. at 463. Because the testimony of

the police detective was elicited by a question that referred to

the officer's training, education, and experience, it called for

an impermissible expert opinion. Ibid.

11 A-2375-15T1
 Here, Flora's testimony was elicited by the question: "[a]nd

what happened after that?" There was no reference to the officer's

training, education, or experience. Flora answered the question

based on his observations, commenting that "an illicit

transaction" had occurred; he did not express a direct opinion

that defendant was guilty of the charged crime. Flora's brief

comment did not rise to the level of impermissible expert testimony

found objectionable in McLean. "[A]n expert may 'characterize[]

defendant's conduct based on the facts in evidence in light of his

specialized knowledge[;] and the opinion is not objectionable even

though it embraces ultimate issues that the jury must decide.'"

Id. at 454 (quoting State v. Odom, 116 N.J. 65, 79 (1989)).

We are more troubled by the portion of Flora's statement in

which he implied that other unit members also believed that an

illicit transaction had taken place. As there was no objection

the State was not given the opportunity to present other officers

as witnesses to corroborate the testimony and correct the error.

We disagree with defendants' argument that the statement violated

State v. Bankston, 63 N.J. 263, 271 (1973), as the jury was not

led to believe that an unidentified witness only known to Flora

told police that defendant was involved in a crime. Rather, the

detective was explaining why his personal observations led him to

12 A-2375-15T1
take the subsequent action of conducting a motor vehicle stop.

Any error in the fleeting statement was harmless.

We find insufficient merit in defendants' argument set forth

in Point Four to warrant further discussion in a written opinion.

R. 2:11-3(e)(2). Defendants were not charged with attempted

distribution of CDS; the charges stemmed from the actual possession

and distribution of narcotics. The judge properly followed the

Model Jury Charges for each offense.

Flores Santos further argues on appeal that the trial judge

erred in her failure to merge the possession with intent to

distribute count with the distribution count as these two charges

encompass the same act. We disagree. See State v. Valentine, 69

N.J. 205, 211 (1976); State v. Davis, 68 N.J. 69, 84 (1975) (the

crime of possession with intent to distribute CDS does not merge

with the crime of distribution of CDS). The offenses here occurred

at separate stages of the offensive conduct. Defendants committed

possession with intent to distribute when they left Kansas with

the narcotics and traveled to New Jersey. The distribution offense

did not occur until defendants were in New Jersey and transferred

the drugs to Nunez in the parking lot.

Flores Santos also states that he was improperly ordered to

pay penalties on the two counts that were correctly merged. We

agree, as does the State, that separate fines and penalties should

13 A-2375-15T1
not be imposed on merged counts. We, therefore, remand to the

trial court for the sole purpose of amending defendants' Judgments

of Conviction to reflect the proper assessments.

Affirmed in part, remanded for amendment of the Judgments of

Conviction. We do not retain jurisdiction.

14 A-2375-15T1