STATE OF NEW JERSEY v. BLAKE A. PUPO (18-05-0161, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3550-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BLAKE A. PUPO,
a/k/a BLAKE A. POPO,
Defendant-Appellant.
_______________________
Argued May 31, 2022 – Decided July 6, 2022
Before Judges Rothstadt, Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 18-05-0161.
Stephen W. Kirsch, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Stephen W. Kirsch, on the brief).
Shaina Brenner, Assistant Prosecutor, argued the cause
for respondent (Francis A. Koch, Sussex County
Prosecutor, attorney; Shaina Brenner, of counsel and on
the brief).
PER CURIAM
After the trial court denied his motions to suppress, a jury convicted
defendant Blake A. Pupo of two counts of first-degree distribution of a
controlled dangerous substance (CDS), lysergic acid diethylamide (LSD),
N.J.S.A. 2C:35-5(a)(1)(b)(6), one count of second-degree conspiracy to
distribute LSD, N.J.S.A. 2C:5-2, and one count of fourth-degree possession of
marijuana, N.J.S.A. 2C:35-10(a)(3). The same court also denied defendant's
motion for a new trial and, after merger, sentenced him to an aggregate fifteen-
year prison term with a six-year period of parole ineligibility and assessed
applicable fines and penalties.
In addition to challenging the court's decision to deny his suppression and
new trial applications, defendant argues the court erred when it prevented him
from introducing the prior consistent statement of his former co-defendant,
Kevin Dilks, and in failing to properly instruct the jury regarding the
prosecutor's improper comments during closing argument. Finally, he argues
we should vacate his conviction for marijuana possession.
Defendant specifically contends:
POINT I
THE MOTION TO SUPPRESS EVIDENCE SHOULD
HAVE BEEN GRANTED FOR TWO REASONS: (1)
THE WARRANT TO SEARCH DEFENDANT'S
HOUSE AND CAR WAS UNSUPPORTED BY
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PROBABLE CAUSE, AND (2) THE STOP AND
ARREST OF DEFENDANT WERE UNSUPPORTED
BY REASONABLE SUSPICION AND PROBABLE
CAUSE, RESPECTIVELY.
POINT II
THE JUDGE COMMITTED REVERSIBLE ERROR
UNDER N.J.R.E. 607 AND N.J.R.E. 803(a)(2) WHEN
HE BARRED THE DEFENSE FROM ELICITING
TESTIMONY REGARDING A PRIOR CONSISTENT
STATEMENT BY KEVIN DILKS TO COUNTER A
CHARGE OF RECENT FABRICATION BY THE
STATE [,] THAT ERROR CUT TO THE CORE OF
THE CREDIBILITY ISSUES IN THE TRIAL.
POINT III
THE PROSECUTOR WENT FAR OUTSIDE THE
BOUNDS OF PROPRIETY WHEN, KNOWING
FULL WELL THAT THERE HAD BEEN NO
EVIDENTIARY PRESENTATION BY THE
DEFENSE, HE TWICE ASKED THE JURY IN
SUMMATION: "WHAT EVIDENCE HAS THE
DEFENDANT OFFERED IN THIS CASE?" AND
THEN, NOTING THAT ALL THE DEFENSE HAD IN
ITS FAVOR WAS CROSS-EXAMINATION AND
THE TRIAL TESTIMONY OF ONE STATE'S
WITNESS, HE URGED THAT THE STATE'S
EVIDENCE WAS SUPERIOR TO "WHAT
[DEFENDANT]'S OFFERED."
POINT IV
THE DEFENDANT'S CONVICTION FOR
POSSESSION OF MARIJUANA SHOULD BE
REVERSED AND THAT COUNT DISMISSED
UNDER THE NEW MARIJUANA REFORM LAW.
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After reviewing the record in light of these contentions and the applicable
law, we affirm defendant's first- and second-degree convictions, but vacate his
fourth-degree marijuana conviction and remand the matter for the court to issue
an amended and conforming judgment of conviction (JOC).
I.
We glean the following facts from the record developed during the
suppression hearing and trial. In February 2018, Detective David Kraus of the
Hopatcong Borough Police Department and the Sussex County Narcotics Task
Force received information from a confidential informant that co-defendant
Kevin Dilks was actively involved in the distribution of LSD to Drug Court
participants at the Sussex County Courthouse. The police were aware that Dilks
had previously been arrested for distribution of drugs and was himself
participating in Drug Court probation and began surveilling him.
On February 21, 2018, Detective Kraus and other officers, including
Detective Aldo Leone of the Sussex County Prosecutor's Office, followed Dilks
from his residence at 217 Windsor Avenue in Hopatcong to the courthouse.
When Dilks emerged, they observed as someone drove him to a Dunkin' Donuts
on Route 206 in Newton where he was seen texting, and exiting the vehicle to
make a phone call. A short time later, a gray Toyota Crossover D-HR pulled
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into the parking lot and stopped near Dilks. Dilks walked over to the Toyota,
placed his hand inside, into his pocket, and then back inside the car before
walking away. The area was not known for drug trafficking, and police were
unable to see anything actually transfer from the occupant of the Toyota and
Dilks's hand, but they nevertheless believed they had just witnessed a drug
transaction.
The police subsequently learned that the gray Toyota was registered to
defendant's father. Based upon surveillance video later retrieved from the
Dunkin' Donuts, they identified the driver of the car as defendant. Police
subsequently spotted defendant with Dilks outside the courthouse on February
28, 2018.
On March 5, 2018, the police arrested Richard Clark, who was also a Drug
Court participant, for first-degree distribution of LSD. Clark identified Dilks as
his supplier and agreed to serve as a cooperating witness. He advised police that
he typically planned his drug purchases with Dilks via text message by first
handing over money to him and later picking up the LSD, which came in liquid
form in small plastic vials. Clark explained that Dilks did not have the LSD in
his possession, but had access to the drug from another unidentified individual.
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That same day, police directed Clark to make a controlled buy of one vial
of LSD from Dilks for $375. Clark confirmed the deal with Dilks by text, took
screen shots of the messages he exchanged with him, and sent them to the police.
The police put a body wire on Clark and provided him with $375 in marked and
previously photographed currency.
Clark drove to Dilks's house, and they subsequently went for a fifteen-
minute car ride. The police followed and listened to the conversation inside the
car where Clark gave Dilks the $375 and Dilks told him that the LSD would be
available the following day.
On March 6, 2018, Dilks informed Clark by text that he could pick up the
LSD later that day and that he would leave it in the mailbox at 122 Bell Avenue
in Hopatcong, his girlfriend's home. The police set up surveillance at this
address and also followed Clark by car to the location.
At 7:40 p.m. that night, police watched as defendant's vehicle stopped in
front of 122 Bell Avenue. The police observed Dilks exiting the house, and
briefly stopping by the car for "probably a minute, maybe less." Police wrote
down the license plate of the vehicle before it departed. Dilks then immediately
walked briefly to the side of the house, out of the sightline of the police. He
then reappeared and was seen placing something in the mailbox bearing the
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number 122, using the flashlight feature on his phone for guidance. Dilks
walked back inside the home and a moment later police spotted Dilks
"constantly walking by the front window," and appearing to be texting on his
cell phone. Clark informed police that Dilks had just texted him and told him
to come by to pick up the LSD.
At approximately 8:30 p.m., police watched as Clark pulled up in front of
122 Bell Avenue and retrieved something from the mailbox. Dilks was standing
by the window at the time and gave Clark a "thumbs up." Later, Clark gave
police a vial of suspected LSD that he had picked up from the mailbox.
Less than a week later, on March 12, 2018, police arranged for Clark to
buy more LSD from Dilks. Clark again reached out to Dilks by text and arranged
to purchase half a vial of LSD for $190, which was all Dilks stated he had
available. Police gave Clark $190 in marked bills and again affixed a body wire
on him.
At approximately 5:00 p.m., officers followed Clark to Dilks's home,
where additional surveillance was in place, and listened in on Clark's body wire.
After Dilks got into Clark's car, Clark gave him $190, and Dilks said that he
should have the LSD later that night because his "boy" worked until 8:00 p.m.
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Clark and Dilks therefore planned to meet at 9:00 p.m. that evening for Clark to
pick up the LSD.
Meanwhile, Detective Leone and other officers had been conducting
surveillance on defendant. They watched as defendant drove from his father 's
medical office and parked in the driveway to his home in Fredon. At 9:00 p.m.,
additional officers who were conducting surveillance of defendant in Hopatcong
spotted defendant's car near Dilks's residence. Dilks, who had been pacing in
the driveway, walked over to the passenger side window, and reached in.
Defendant then departed.
Clark thereafter advised police that Dilks had obtained the LSD from his
contact. They followed Clark to Dilks's residence. At approximately 11:15
p.m., Clark stopped in front of the residence and Dilks was standing at the end
of the driveway. Dilks walked over to Clark's car, opened the passenger door
slightly and "tossed" the LSD into the car without speaking. Clark subsequently
provided police with a cigarette box containing a vial of LSD that he had
obtained from Dilks.
Meanwhile, other officers followed defendant and ultimately pulled him
over in Andover and arrested him. According to Detective Leone, after
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defendant was Mirandized,1 he admitted that he sold LSD to Dilks on March 6th
and 12th, and the $170 in a cupholder inside the car was the proceeds from the
last transaction. Police also arrested Dilks later that night.
At 10:30 p.m., after defendant's arrest, but before Clark picked up the LSD
from Dilks, Detective Leone telephoned a judge to apply for a search warrant
for defendant's house and car. Leone informed the judge that defendant had
seven prior felony convictions, had violated probation more than once and was
presently in Drug Court probation for second-degree CDS distribution. He
noted that a confidential informant had identified Dilks as a drug dealer and that
he had observed brief meetings between Dilks and defendant in front of Dunkin '
Donuts and at the courthouse. He conceded, though, that he had not directly
observed a hand-to-hand transaction on either date.
Leone described the police surveillance of Dilks and defendant in
connection with the controlled buys made by Clark. He again conceded that he
had not seen the actual transactions between defendant and Dilks. Lastly, Leone
informed the court that, after his arrest, defendant admitted picking up money
from Dilks in exchange for dropping off LSD on both March 6 and 12, 2018.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Based upon the foregoing, the motion judge found that there was probable cause
for the issuance of the requested search warrant.
The police later executed the search warrants and while searching
defendant's bedroom seized a: (1) backpack containing a heat sealed bag
containing four ounces of marijuana and a scale; (2) second scale in a dresser
drawer; (3) Ziploc heat sealer and two glass vials with dropper tops, one of
which appeared to contain LSD residue; (4) six bait cartridges 2 in a dresser
drawer; (5) box addressed to defendant containing four glass vials with medicine
dropper tops in the closet; and (6) an "ice drops" container from defendant's
bedframe.
Other officers searched defendant's car and retrieved: (1) $170 from the
center console cup holder; (2) two Samsung Galaxy cell phones; (3) a Samsung
Tablet; (4) a wallet containing defendant's credit cards; (5) a bank statement for
defendant; (6) a spiral notebook; and (6) a backpack on the front seat that
contained a spiral notebook, two phones and a tablet. One side of the notebook
contained the word "wax," which the police described at trial as a hard substance
2
Although the transcript refers to "bait cartridges," we note that the record
elsewhere indicates defendant sold preloaded "vape cartridges" to Dilks, and we
presume the reference to "bait cartridges" is a transcription error. The
distinction, however, has no effect on our analysis.
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containing THC oil, with several names written underneath. On the other side
of the notebook was the letter "L" with several names and initials underneath.
One set of initials was "KD".
Police also searched Dilks's house and recovered: (1) a $20 bill attached
to Dilks's wallet (one of the marked bills); and (2) two cell phones – a Samsung
Galaxy and a black LG with a cracked screen. They did not find any drugs.
Defendant later moved to suppress his incriminating statements and the
physical evidence seized from his car and bedroom. He argued that police
lacked probable cause or reasonable suspicion to stop and immediately arrest
him in Andover, and in addition, that he did not receive Miranda warnings at the
scene of his arrest. Further, he contended that the police lacked probable cause
to support the search warrants for his home and his car.
At the suppression hearing, defendant testified, as did Detective Leone.
Detective Leone described the investigation, including all surveillance and the
two controlled buys, conceded that the police were unable to actually see any
hand-to-hand exchanges between defendant and Dilks, and related the
statements made by defendant at the time of his arrest. For his part, defendant
denied receiving complete Miranda warnings.
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Defense counsel again argued there was no probable cause as to the search
warrant for defendant's house and car, and further, that defendant's stop and
arrest were not supported by reasonable suspicion or probable cause.
In a written opinion dated December 17, 2018, the motion judge
concluded that defendant's incriminating statements to police at the time of his
arrest were inadmissible because defendant was subject to custodial
interrogation, and there was "no evidence to support a finding" that defendant
received the appropriate Miranda warnings. The court denied defendant's
application to suppress the physical evidence seized by the police, however,
after concluding that there was probable cause for the issuance of the search
warrant, even after the court excised defendant's inculpatory statements.
The motion judge based his conclusion upon: (1) Clark's controlled
purchases of LSD from Dilks; (2) the "extensive observation" of drug-related
interactions between defendant and Dilks at Dilks's residence, Dunkin' Donuts
and the courthouse; and (3) the detailed accounts of the police surveillance on
March 6 and 12 which included law enforcement observation of defendant
"dropping off drugs in Dilks's mailbox or to Dilks in Hopatcong in exchange for
cash."
A-3550-19
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Defendant later moved before a different judge for reconsideration
contending Detective Leone's testimony in support of the March 12, 2018 search
warrant was insufficient to establish probable cause, given the suppression of
defendant's statements. Specifically, defendant argued that because the
suppression hearing resulted in exclusion of defendant's statement, the court
should reconsider the evidence in support of the search warrant, as the alleged
drug transactions were not suggestive of criminal activity. Counsel emphasized
the limitations in what the police actually observed and insisted that the motion
judge erred in relying upon mere assumptions in finding that there was a history
of actual narcotics transactions in front of the courthouse, at the Dunkin' Donuts,
and in connection with the controlled buys.
The reconsideration judge denied defendant's motion despite
acknowledging that defendant never sold drugs to Clark directly, and that the
police were never in a position to see exactly what, if anything, was transferred
between defendant and Dilks. In so ruling, the judge explained that: (1) it was
not uncommon for drug transactions to have "several layers of insulation" such
that there was a disassociation between the payment of money and the transfer
of drugs; (2) the court must look at these situations with an "educated eye" in
order to make a judgment "consistent with reality"; and (3) the information
A-3550-19
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supplied by the confidential informant, the police surveillance of defendant and
Dilks, and the information collected in connection with the controlled buys , all
supported the conclusion that defendant was involved in illegal narcotics
transactions.
As the reconsideration judge stated, "[t]he choreography of these events
is such that I think it would be foolish to not understand that what we 're seeing
is characteristic of, indicative of, typical of, distinctive of, narcotics
transaction[s]." In the judge's view, the series of events, viewed as a whole,
could not realistically be portrayed as mere coincidence.
Dilks thereafter pled guilty to first-degree distribution of LSD on July 31,
2018. We discern from the portion of the transcript read into the record at trial
that Dilks inculpated defendant as his supplier in his plea.
At trial, Clark testified to his participation in the two controlled buys. He
confirmed that Dilks had been his regular supplier, but that he never knew from
whom Dilks obtained the drugs.
Detective Thomas Laird of the Sussex County Prosecutor's Office testified
that he performed a forensic examination on the LG phone found in Dilks's
bedroom. He extracted information from the phone, including one contact listed
as "Dick" with Clark's phone number, and another listed as "Poo" with
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defendant's phone number. Detective Laird also introduced text conversations
between defendant and Dilks, and Dilks and Clark, that the State uncovered as
part of its investigation. Prior to both controlled buys, the text messages
revealed Dilks had contacted defendant to purchase the LSD that would
ultimately be sold to Clark, see infra, at pp. 33-34.
Dilks testified that he sold LSD to Clark on at least two occasions. Dilks
also testified that, contrary to his sworn testimony at the time of his guilty plea,
he obtained the LSD from an unidentified individual in Jersey City, not
defendant. He suggested that he had inculpated defendant at his plea hearing
only because the prosecutor threatened "to take [thirty] years of [his] life away
if he didn't hear what he wanted to hear." Dilks further implied that the
transactions involved borrowing money from defendant because Dilks worked
seasonally and owed child support and fines, and that he would pay defendant
back in installments.
Given Dilks's hostility during the prosecutor's direct examination, the
prosecutor did not, at the trial court's suggestion, confront Dilks directly with
his sworn testimony at his July 31, 2018 plea hearing. Rather, a few days later,
the prosecutor read into the record Dilks's testimony from that hearing wherein
he identified defendant as his supplier. Specifically, Dilks stated Clark
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contacted him on March 12, 2018, and asked for LSD. Dilks further testified
that he later met with defendant at his car window, defendant gave him the drugs,
and he gave defendant $170 of the $190 the money from Clark. The extra $20
he kept was later found by police in his house.
In light of the prosecutor's introduction of Dilks's prior statement, defense
counsel sought to rebut the inference that Dilks had fabricated his trial testimony
by presenting a prior statement made by Dilks to his lawyer Charles O'Connell,
Esq., during plea negotiations, that was consistent with his trial testimony.
Specifically, defense counsel sought to either: (1) call O'Connell to testify that
during plea negotiations Dilks told him that he got the drugs in Jersey City; or
(2) present to the jury a July 30, 2018, transcript of the plea negotiations where
O'Connell relayed this statement to the court.
The prosecutor objected to defense counsel's request, explaining that
Dilks was no longer on the stand, no one was sworn in on July 30, 2018, and
Dilks did not directly inform the court of his supposed Jersey City supplier. The
trial court was troubled by the fact that what defense counsel sought to admit
was O'Connell's statement and not Dilks's. The court also noted that, while
Dilks had implicated defendant unwillingly at the time of his plea, he had not
necessarily been untruthful.
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At a hearing outside the presence of the jury, O'Connell testified that: (1)
he represented Dilks at his plea hearing; (2) Dilks was adamant he did not want
to testify against defendant; (3) Dilks told him he got the LSD from someone in
Jersey City; (4) O'Connell stated on the record that on July 30, 2018 Dilks had
told him he received the LSD from a Jersey City source; (5) the prosecutor stated
that the only way Dilks's plea deal would going through was if Dilks identified
defendant as his supplier in testifying regarding the factual basis for his plea;
and (6) the next day, July 31, 2018, Dilks agreed to implicate defendant.
The trial judge denied defendant's request, finding that: (1) the prior
consistent statement sought to be admitted was defense counsel's, not Dilks's;
(2) the statement was not made while under oath and was not reliable; (3) it was
"unusual" to have an attorney testify about conversations with his client in the
course of plea negotiations and attribute to them evidential value; (4) Dilks's
subsequent sworn plea testimony overrode any earlier statements; and (5) in any
event, O'Connell's testimony was unnecessary as Dilks had been very emphatic
in his testimony that defendant was not his drug supplier.
After defendant's counsel informed the court that defendant would not be
testifying and that the defense rested, the trial court reminded the jury as
follows:
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Yes, and as you recall, ladies and gentlemen, our
jurisprudence is a defendant has an absolute right not to
testify and the State has the burden of proof and not the
defense so there is no obligation on them to do
anything.
They have, of course, raised or done cross-examination
and have introduced items into evidence, but that . . .
brings an end to the presentation of the evidence.
During his summation, defense counsel stressed effectiveness of his
cross-examination in this case, emphasizing that it had exposed the following
weaknesses in the State's case: (1) numerous reporting errors made by the
police; (2) flaws in the surveillance conducted by the police; (3) allegedly
improbable testimony; (4) Clark's self-interest in this matter and his
unfamiliarity with defendant; and (5) the State's alleged manipulation of the
phone evidence. Counsel emphasized that although the burden of proof was on
the State, it had not produced any direct evidence of defendant's guilt, relying
instead on Dilks, its "star witness," to support its circumstantial case.
Defendant's counsel continued that Dilks had unexpectedly, in a dramatic
"Perry Mason moment," testified that defendant was not his drug supplier and
that his prior statement to the contrary was the result of coercion by the
prosecutor. Counsel concluded his remarks by asserting that the case came
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down to the State's burden of proof, circumstantial evidence, reasonable doubt,
the presumption of innocence, and defendant's right to remain silent.
In response, during his summation, the prosecutor first acknowledged that
the State bore the burden of proof in this case and then outlined all of the proofs
submitted by the State. As he concluded his remarks, the prosecutor stated:
So who is really selling the LSD here? Is Kevin Dilks
the source or is [defendant] the source? All of the
evidence shows that [defendant] is the source here, all
of the evidence including most critically, the phone
records.
So, all of that evidence, they're seen together,
[defendant's] vehicle, the buy money, $170 of buy
money found in this car, the buy money, photocopies of
it, found in [defendant]'s car that night.
Was this money that Kevin Dilks just owed him for
something or was this money for LSD? It was money
for LSD. This ledger. Wax. L, K.D., the check mark
next to it found in Blake Pupo's car that night right on
the front seat right next to him.
This is the record of the drug activity. Drug
distribution. What evidence has the defendant offered
in this case? What evidence has the defendant offered?
He's offered argument about cross-examination and
he's offered Kevin Dilks's testimony. That's what he's
offered. This is what the State has offered. I would
submit to you the evidence is clear. The evidence
corroborates itself.
[emphasis supplied].
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After the prosecutor concluded his remarks, defense counsel advised the
court that he had "some issues with the closing" and wished to make an
application. As it was the end of the day, the trial court elected to excuse the
jury before addressing counsel's motion. Defense counsel then moved for a
mistrial alleging that the prosecutor had improperly shifted the burden of proof
to the defense in the statements emphasized above. The trial court said that it
had not "pick[ed] it up in the same way," and that it needed to listen to the
recording before making a ruling.
The next day, the trial court denied defense counsel's motion without
prejudice. It found that, while less than "ideal and perhaps better left unsaid,"
the challenged remarks were not egregious and did not warrant a mistrial. It
noted that it had not "registered" the remarks as objectionable when they were
made, and that it was satisfied that the situation could be easily remedied with
curative instruction. Although defense counsel argued that a curative instruction
should have been administered the night before and would now be ineffective,
the court believed that it had acted within its discretion in releasing the jury prior
to the resolution of counsel's motion. It noted that defense counsel had raised
his objection at 4:15 p.m., fifteen minutes after the jury was usually discharged,
and that it had anticipated that the motion would take at least twenty minutes to
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resolve. The prosecutor agreed to permit the court to inform the jury to strike
his statements.
Instead of striking the statements, the court gave a lengthy curative
instruction wherein it advised the jury that the prosecutor may have made "some
statements" in his summation which "might have had a tendency to . . . shift the
burden of proof to defendant." It then repeatedly reinstructed the jury that the
State bore the burden of proof and that the defense was not obliged to present
any evidence at trial. It stated that, while the defense had presented physical
and testimonial evidence, the burden of proof remained with the State.
Further, in its final charge to the jury, the court reiterated that the State
bore the burden of proof and that defendant had the right to remain silent. After
the jury began deliberations, the trial court revisited defense counsel's
application, but ultimately maintained its initial ruling that the prosecutor's
statements did not warrant the granting of a mistrial.
After he was convicted, defendant filed an application for a new trial,
arguing, among other grounds, that the State's comments in summation
improperly shifted the burden of proof and therefore deprived defendant of a
fair trial. Specifically, defendant maintained the remarks should have been
withdrawn and stricken from the record, and asserted that the curative
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instruction administered by the court the next morning was untimely and
ineffective because it was merely a "general instruction on burden of proof and
the right to remain silent."
The court denied defendant's motion, again noting that the at-issue
remarks "had not jumped out at him," that it had taken time to resolve counsel's
objection and that it would not have been appropriate to make the jury wait
indefinitely. The court explained:
In terms of what was said, I would characterize it as
something that is not ideal and perhaps could have been
argued differently or left out completely, but not quite
as – the [d]efense argued it was an intentional attempt
to shift in the jury's thinking and feeling; the burden of
proof. I don't think it was that either . . . .
And I would say that if it had to be done again it would
be rephrased or unsaid, but we deal with what has been
done . . . .
....
Anyway, the statement was, what evidence has the
defense offered? And then, he's offered argument and
the testimony of Dilks. So the reason it's not ideal is
because whenever we say anything about – or the State
says anything about what the [d]efendant has done or
not done, we run into the principle and run, perhaps,
contrary to the principle that a defendant has no
obligation to do anything; produce any evidence or
witnesses, or for that matter, argument.
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The reason why I think it is not . . . and it didn't strike
my ear as clearly contrary to our jurisprudence or . . .
an unambiguous reference to the failure of the
[d]efendant to produce testimony or evidence is
because, number 1, there was some evidence produced
by the [d]efense. Exhibits and things of that nature.
Number two, the State in its argument referred to – I
think what it was thinking about, and that is the
[d]efense arguments based on cross-examination or
testimony generally regarding the State's case and the
testimony of Dilks. My longwinded point being that it
wasn't by its terms a statement that the [d]efense has
done nothing. It was a statement that what they had
done is limited in terms of countering the – what I
would say the direct proofs of the State.
And, again, I may be confusing the issue as I go through
it to a certain extent, but the [d]efense is entitled to offer
argument. Is entitled to point to the testimony of Dilks
and other testimony. And so, it sounded to me like a –
perhaps inartful way of contrasting the evidence that
supported the [d]efense theory with the evidence that
the State felt supported its theory.
The court entered a conforming order denying the application , and after
amending the JOC to correct certain errors related to fines and penalties, this
appeal followed.
II.
In defendant's first point, he argues that the court committed reversible
error in admitting evidence retrieved from his car and home. He specifically
contends the search warrants for his house and his car were not supported by
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probable cause, and separately, the vehicle stop and arrest in Andover were not
supported by reasonable suspicion or probable cause. We disagree with all of
these arguments.
In evaluating a trial judge's ruling on a suppression motion, we afford
considerable deference to the judge's role as a fact-finder. Our review of the
judge's factual findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463,
470 (1999). We must defer to those factual findings "so long as those findings
are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.
249, 262 (2015) (internal citations omitted). For mixed questions of law and
fact, we give "deference . . . to the supported factual findings of the trial court,
but review de novo the lower court's application of any legal rules to such factual
findings." State v. Pierre, 223 N.J. 560, 577 (2015) (internal citations omitted).
As part of that deference, we particularly must respect the trial judge's
assessments of credibility, given the judge's ability to have made "observations
of the character and demeanor of witnesses and common human experience that
are not transmitted by the record." Locurto, 157 N.J. at 474. However, we owe
no deference to the trial judge's conclusions of law. State v. Hinton, 216 N.J.
211, 228 (2013). Nor are we "obliged to defer to clearly mistaken findings . . .
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that are not supported by sufficient credible evidence in the record." State v.
Gibson, 218 N.J. 277, 294 (2014).
"A search that is 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 'or that the search was otherwise
unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.
Watts, 223 N.J. 503, 513-14 (2015)). Probable cause is a "'common-sense,
practical standard' dealing with 'probabilities' and the 'practical considerations
of everyday life,'" and is generally understood to mean "'less than legal evidence
necessary to convict though more than mere naked suspicion.'" State v. Evers,
175 N.J. 355, 381 (2003) (first quoting State v. Sullivan, 169 N.J. 204, 211
(2001); then quoting State v. Mark, 46 N.J. 262, 271 (1966)).
"Courts consider the 'totality of the circumstances' and should sustain the
validity of a search only if the finding of probable cause relies on adequate
facts." Boone, 232 N.J. at 427 (quoting State v. Jones, 179 N.J. 377, 388-89
(2004)). "[T]he probable cause determination must be . . . based on the
information contained within the four corners of the supporting affidavit, as
supplemented by sworn testimony before the issuing judge that is recorded
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25
contemporaneously." Ibid. (alteration in original) (quoting State v. Marshall,
199 N.J. 602, 611 (2009)).
As noted, defendant renews his contentions raised before the court that
both the initial motion judge and the reconsideration judge made findings that
defendant engaged in drug transactions that were without actual factual support
given the limitations in what the police were able to observe. We are satisfied
that the reconsideration judge's assessment of the matter was entirely accurate,
and that the vehicle stop and defendant's immediate arrest were lawful.
We review defendant's arrest from an objective standpoint, State v.
O'Neal, 190 N.J. 601, 613-14 (2007), and consider the proofs known to police
at the time they stopped defendant's vehicle, which does not include the text
messages from defendant to Dilks that were introduced at trial. We also do not
consider the suppressed statements defendant made to police shortly after his
arrest, and note that both the first and second motion judges also excluded these
statements from their analyses.
Generally, police encounters with individuals occur at three distinct
levels: a field inquiry; an investigatory stop; or an arrest. State v. Nishina, 175
N.J. 502, 510-11 (2003). There are constitutional considerations at all levels of
encounters. Ibid. A field inquiry is "the least intrusive encounter," which occurs
A-3550-19
26
when a police officer approaches a person and asks if he or she is willing to
answer some questions. State v. Pineiro, 181 N.J. 13, 20 (2004). An
investigatory stop, often referred to as a Terry3 stop-and-frisk, may be "based
on the totality of the circumstances, [where] the officer ha[s] 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).
An arrest requires probable cause, which is defined as a "well-grounded
suspicion or belief on the part of the searching or arresting officer that a crime
has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511
(App. Div. 1989).
Based upon these principles, we are satisfied police had sufficient
probable cause to arrest defendant, and therefore to effectuate the vehicle stop
in Andover.4 See O'Neal, 190 N.J. at 611-12 ("The standard for a Terry stop 'is
lower than the standard of probable cause necessary to justify an arrest. '"
(quoting Nishina, 175 N.J. at 511)). As detailed, prior to the stop, police
3
Terry v. Ohio, 392 U.S. 1, 20 (1968).
4
We acknowledge that the court did not specifically address the propriety of
the vehicle stop, instead primarily addressing the constitutionality of the
warrants issued by the court.
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27
conducted an extensive investigation into the distribution of LSD to Drug Court
participants, which ultimately implicated defendant as a supplier in that scheme.
We agree with the reconsideration judge that the various encounters
between defendant and Dilks may not independently establish probable cause,
but considered together, the totality of the circumstances established ample
probable cause for a reasonable officer to believe defendant sold LSD to Dilks.
See State v. Harris, 384 N.J. Super. 29, 47 (App. Div. 2006) ("Probable cause
exists where 'the facts and circumstances within [the officers'] knowledge and
of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that' an offense
has been or is being committed." (quoting Moore, 181 N.J. at 46)). Although
police did not directly observe anything pass hand-to-hand on March 6th and
March 12th, each time officers observed defendant interact with Dilks from his
car, they shortly after observed Clark arrive to pick up the LSD from Dilks.
Further, to the extent the initial motion judge based his decision on the
factual finding that defendant placed the drugs in the mailbox at 122 Bell
Avenue, we acknowledge that such a finding was incorrect, as the record
established only that defendant pulled into the driveway at 122 Bell Avenue to
meet defendant on March 6, 2018. We do not defer to this "clearly mistaken
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28
finding," Gibson, 218 N.J. at 294, but we disagree with defendant's
characterization of the error as "catastrophic," as we are satisfied, as noted, there
was sufficient probable cause to stop and arrest defendant even excluding the
initial court's erroneous factual finding. We also note, in reaching this
conclusion, that appeals are from orders, not opinions, see Do-Wop Corp. v.
City of Rahway, 168 N.J. 191, 199 (2001).
In any event, the evidence in support of the warrant was reevaluated by
the reconsideration judge, who came to the same conclusion. Indeed, that judge
explicitly highlighted that defendant "never sold drugs to the cooperating
witness directly," and acknowledged that "law enforcement was never in a
position to see exactly what might have been transferred at different points."
We agree with the reconsideration judge's conclusion that the interactions
between defendant and Dilks nonetheless fully supported a finding of probable
cause. We are satisfied that the court's decision to deny defendant's motion to
suppress was supported by "sufficient credible evidence in the record" and the
legal principles were appropriately applied. Hinton, 216 N.J. at 228 (quoting
State v. Handy, 206 N.J. 39, 44 (2011)).
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III.
In his second point, defendant argues, the court erred in excluding
testimony from Dilks's plea counsel regarding a statement made to him by Dilks
during plea negotiations, wherein Dilks stated that his drug supplier was
someone in Jersey City, not defendant. We are not convinced that any error
committed by the court supports reversal of defendant's conviction in light of
the substantial circumstantial evidence supporting his guilt, and the jury's ability
to evaluate Dilks's testimony.
A reviewing court will defer to a trial court's evidentiary ruling absent an
abuse of discretion. State v. Garcia, 245 N.J. 412, 430 (2021). It will not
substitute its judgment unless the evidentiary ruling is "so wide of the mark"
that it constitutes "a clear error in judgment." Ibid. (quoting State v. Medina,
242 N.J. 397, 412 (2020)). However, reversal of a conviction is only warranted
when the mistaken evidentiary ruling has the "clear capacity to cause an unjust
result." Ibid.When a "declarant-witness testifies and is subject to cross-examination,"
N.J.R.E. 803(a)(2) permits the admission of previously-made statements of the
declarant-witness that are "consistent with the declarant-witness' testimony and
offered to rebut an express or implied charge against the declarant-witness of
A-3550-19
30
recent fabrication or improper influence or motive." N.J.R.E. 607 provides that
a prior consistent statement shall not be admitted to support credibility except
"to rebut an express or implied charge against the witness of recent fabrication
or improper influence or motive and as otherwise provided by the law of
evidence."
"The scope of the [N.J.R.E. 803(a)(2)] exception encompasses prior
consistent statements made by the witness before the alleged 'improper influence
or motive' to demonstrate that the witness did not change his or her story." Neno
v. Clinton, 167 N.J. 573, 580 (2001) (emphasis added). We have observed,
however, that our Supreme Court "declined to adopt as a rigid admissibility
requirement that the prior statement was made prior to the motive or influence
to lie." State v. Muhammad, 359 N.J. Super. 361, 386 (App. Div. 2003). There,
we explained that "the purpose of N.J.R.E. 803(a)(2) is best advanced by not
requiring a strict temporal requirement, but instead allowing judges to evaluate
relevance under all of the circumstances in which the prior statement is
proffered." Id. at 388. In reaching this conclusion, we acknowledged that
"whether the statement was made before the asserted motive or influence to
fabricate is a substantial factor in determining relevance." Ibid.A-3550-19
31
Accordingly, we have explained that "fabrication is 'recent' if it post-dates
a prior consistent statement." State v. Moorer, 448 N.J. Super. 94, 110 (App.
Div. 2016). In such a situation, "a consistent statement that predates the motive
is a square rebuttal of the charge that the testimony was contrived as a
consequence of that [improper] motive," and thus has clear probative value. Id.
at 111 (quoting Tome v. U.S., 513 U.S. 150, 158 (1995)).
We initially observe that in denying defendant's request to introduce
Dilks's prior consistent statement, it incorrectly relied upon N.J.R.E. 803(a)(1),
the hearsay exception for prior inconsistent statements, rather than N.J.R.E.
803(a)(2). A prior inconsistent statement is only admissible if it is "contained
in a sound recording or in a writing made or signed by the declarant -witness,"
or if it was given under oath. N.J.R.E. 803(a)(1). On the other hand, N.J.R.E.
803(a)(2), as discussed, requires only that the statement be "consistent with the
declarant-witness' testimony and . . . offered to rebut an express or implied
charge against the declarant-witness of (A) recent fabrication or (B) improper
influence or motive." As noted, the court concluded the statement was
inadmissible because it was not made under oath, and was a "statement made by
[Dilks] to his attorney," to which O'Connell would testify. We agree with
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32
defendant that this ruling was error, as defendant sought to admit Dilks's prior
consistent statement under N.J.R.E. 803(a)(2), not N.J.R.E. 803(a)(1).
We also note that the court erred to the extent it based its decision on the
fact that the statement was not made by Dilks himself. The very purpose of
N.J.R.E. 803(a)(2) is to admit the declarant's prior consistent statement to rebut
a charge of recent fabrication. We are not convinced that defendant's intent to
do so through the vehicle of Dilks's attorney, O'Connell, was contrary to the
Rule.
We conclude, however, that the preclusion of this statement was harmless
error given the wealth of incriminating evidence presented at trial. For example,
at trial, the State presented text messages exchanged between Clark and Dilks
which set up the two money drop-offs and subsequent drug buys observed by
police through coordinated surveillance, as well as text messages exchanged
between Dilks and defendant which, through substance, timing and coordinated
police surveillance, established defendant's role as supplier in this drug
distribution scheme.
The earliest text messages from defendant to Dilks on March 1, 2018 read,
"Hey Buddy, you want my last bottle? . . . I need the money today." When Dilks
declined, defendant offered that he "should be able to get more whenever." On
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March 5, 2018, text messages from Clark to Dilks read, "Yo, your boy going to
be around this week?" At about 3:00 p.m. that afternoon, Dilks texted defendant
to ask if he "has one," and defendant responded that he had access to two bottles
with "about 100 puffs" each on "preloaded cartridges." Dilks requested one, and
that same afternoon, at 3:30 p.m., Clark ordered one bottle for $375 from Dilks.
The next day, text messages from defendant to Dilks revealed a plan for
defendant to drive to Dilks's girlfriend's house at 122 Bell Avenue in Hopatcong
to drop off the bottle. Texts from that evening confirmed defendant drove to the
address, and police observed as he pulled into the driveway and met with Dilks.
On March 12, 2018, Dilks requested another bottle from defendant, but
defendant responded he could "definitely do half. Have that at home." Twenty
minutes later, Dilks texted Clark informing him the supplier "only has half right
now." Clark confirmed the price of $190 for the half bottle, and the two planned
to meet at 5:00 p.m. that evening for Clark to drop off the money. Texts from
defendant to Dilks at 5:18 p.m. read, "I'm supposed to work till 8:00, can
probably meet around [nine] after I run home and grab the half."
At 8:38 p.m. that evening, Dilks texted defendant his address at 217
Windsor Avenue, and at 9:04 p.m., Dilks touched base with Clark saying, "Just
talked to him. Should be here around 9:30." At 9:14 p.m., defendant texted
A-3550-19
34
Dilks that he was a mile away from 217 Windsor Avenue, and Dilks confirmed
he was outside waiting. Police again observed as defendant arrived to meet
Dilks outside. At 9:19 p.m., Dilks texted Clark, "Ready when you are," and as
noted, Clark arrived later that evening to pick up the LSD.
Given these exchanges, we are satisfied that there was ample
circumstantial evidence that defendant supplied Dilks with the LSD sold to
Clark, despite Dilks's recanted testimony to the contrary. That evidence also
included the marked bills and ledger found in defendant's car, as well as the
drugs and related paraphernalia found at his home. In addition, Dilks's claim
that he purchased the drugs from someone in Jersey City was rebutted by the
lack of communication on his phone with anyone in Jersey City. Nor were there
proofs to support Dilks's claim that he gave money to defendant to repay a
personal loan, given the unusual circumstances in which these "payments" were
made. We also stress that the jury had an opportunity to evaluate Dilks's
credibility. Accordingly, we reject defendant's contention that the trial court
erred in excluding testimony from Dilks's plea counsel regarding Dilks's alleged
prior consistent statement, as the exclusion of this evidence did not have the
capacity to cause an unjust result given the extensive proofs against defendant.
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35
IV.
We turn next to defendant's contention that the court committed error in
failing to grant a mistrial in response to the alleged misconduct of the prosecutor
committed during his closing arguments when he purportedly shifted the burden
of proof and implied defendant was responsible for presenting evidence in his
defense when he remarked "[w]hat evidence has the defendant offered in this
case." Defendant also maintains that the curative instruction administered by
the court was ineffective because it was untimely and failed to identify the
offending remark and direct that it be disregarded by the jury. We reject these
arguments.
A motion for a mistrial should be granted only in those situations which
would otherwise result in manifest injustice. State v. DiRienzo, 53 N.J. 360,
383 (1969). The decision to deny a motion for a mistrial is within the sound
discretion of the trial court, and will only be reversed on appeal for abuse of this
discretion. State v. Winter, 96 N.J. 640, 647 (1984).
Defendant's allegation of prosecutorial misconduct requires us to assess
whether the defendant was deprived of the right to a fair trial. State v. Jackson,
211 N.J. 394, 407 (2012). To warrant reversal on appeal, the prosecutor's
misconduct must be "clearly and unmistakably improper" and "so egregious"
A-3550-19
36
that it deprived defendant of the "right to have a jury fairly evaluate the merits
of his defense." State v. Wakefield, 190 N.J. 397, 435-38 (2007). When the
alleged misconduct involves a particular remark, a reviewing court should
consider whether: (1) defense counsel objected in a timely and proper fashion
to the remark; (2) the remark was withdrawn promptly; and (3) the trial court
gave the jury a curative instruction. State v. Smith, 212 N.J. 365, 403-04 (2012);
State v. Zola, 112 N.J. 384, 426 (1988).
A prosecutor is expected to make a "vigorous and forceful" closing
argument to the jury. State v. Lazo, 209 N.J. 9, 29 (2012) (quoting State v.
Smith, 167 N.J. 158, 177 (2001)). A prosecutor may make remarks that
constitute legitimate inferences from the facts, provided he or she does not go
beyond the facts before the jury. State v. R.B., 183 N.J. 308, 330 (2005). A
prosecutor may also respond to arguments raised by defense counsel during his
or her own summation. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.
2001). A prosecutor, however, may not, through his or her remarks, shift the
burden of proof to the defense, or draw attention to a defendant's failure to
testify. State v. Loftin, 146 N.J. 295, 389 (1996); State v. Engel, 249 N.J. Super.
336, 382 (App. Div. 1991).
A-3550-19
37
When viewed in context, the prosecutor's remarks, although inartfully
stated, were made in response to defense counsel's contention in summation that
he had exposed the holes in the State's case with his cross-examination of the
various witnesses and the testimony of Dilks. We are satisfied that the remarks
did not fall into the category of "egregious" warranting a mistrial. Rather, the
prosecutor essentially answered his own question by noting that the defense's
case was built around cross-examination and Dilks's testimony.
We are further convinced that the prosecutor's remark did not have the
impermissible burden shifting impact that defendant now ascribes to it on
appeal. To the extent there was any impropriety, the comments were not of the
sort to warrant the relief requested by defendant, particularly in light of the
court's general and specific instructions, detailed supra at pp. 20-21, in which it
emphasized the State's burden of proof. Those instructions were more than
sufficient to address the issue raised by the prosecutor's comments. We also
find no merit to defendant's claim that the court's instruction issued the next day
rendered it anyway infective. We presume the jury followed the court's
instructions. See State v. Wilder, 193 N.J. 398, 415 (2008) ("We credit juries
for following instructions carefully and applying the facts, as found, to the law,
as instructed.").
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V.
Defendant contends in his final point that in accordance with N.J.S.A.
2C:35-23.1(b)(2), a remand is warranted for the court to vacate his conviction
of fourth-degree possession of marijuana. The State has taken takes no position
on defendant's argument.
Under N.J.S.A. 2C:35-23.1(b)(2), a court is authorized to vacate a
defendant's conviction and sentence for fourth-degree possession of marijuana
and other marijuana crimes. As that statutory provision explicitly authorizes the
relief requested, and the State has offered no substantive opposition to the issue,
we vacate defendant's conviction for possession of marijuana.
Affirmed in part and remanded for the court to issue an amended JOC
vacating defendant's conviction for fourth-degree possession of marijuana and
all related fines and penalties.
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