NOT FOR PUBLICATION WITHOUT THE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
STATE OF NEW JERSEY VS. JUAN GUERRERO-ESTRADASTATE OF NEW JERSEY VS. JUAN M. FLORES SANTOS(15-01-0008, HUDSON COUNTY AND STATEWIDE)(CONSOLIDATED)
Combined Opinion