STATE OF NEW JERSEY VS. JOSE M. LAPORTE (17-07-0746, BURLINGTON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4572-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE M. LAPORTE,
Defendant-Appellant.
_______________________
Submitted May 6, 2020 – Decided July 6, 2020
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment No.
17-07-0746.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Walter Douard, Assistant Deputy
Public defender, of counsel and on the briefs).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jose Laporte appeals from a March 29, 2018 judgment of
conviction after a jury found him guilty of first-degree strict liability for drug-
induced death, N.J.S.A. 2C:35-9(a); third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession
of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3);
and third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-
5(b)(3). We affirm his conviction.
Defendant raises the following issues on appeal:
POINT I: EVEN WHEN VIEWED IN THE LIGHT
MOST FAVORABLE TO THE STATE, THE
EVIDENCE WAS INSUFFICIENT TO PROVE
BEYOND A REASONABLE DOUBT THAT
DEFENDANT SOLD THE DRUGS TO SUNG U ON
THE DAY OF HIS DEATH.
POINT II: THE [TWELVE] YEAR NERA [1]
SENTENCE IS EXCESSIVE AND THE MATTER
MUST BE REMANDED FOR RESENTENCING,
BECAUSE THE JUDGE PLACED GREATER
WEIGHT ON GENERAL DETERRENCE THAN
OUR COURTS HAVE FOUND REASONABLE,
AND FAILED TO FIND MITIGATING FACTOR
N.J.S.A. 2C:44-1(b) (11).
We glean the following facts from the trial record. Around 4:00 a.m. on
April 12, 2017, Detective Anthony Fontana and other officers from the
1
No Early Release Act, N.J.S.A. 2C:43-7.2.
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Burlington Township Police Department responded to a report of a possible drug
overdose. Upon entering, Fontana observed the deceased victim, Sung U Han
(Sung U),2 in his bedroom.
Sung U lived with his father Alexander Han (Alexander) in the apartment.
Sung Ho Han (Sung Ho), the victim's brother, testified that the family knew
about Sung U's substance abuse issues but thought he remained drug free in the
months prior to his death, as he looked healthier and appeared happier after
participating in a detox program.
Sung Ho testified that on April 11, 2017, Sung U helped him move
furniture from approximately 10:00 a.m. to 6:00 p.m. The brothers then had
dinner with Alexander at Sung Ho's house until Sung U said he needed to go
home. Alexander returned to the apartment on his own, and Sung Ho drove his
brother there around 9:30 or 10:00 p.m.
Alexander woke up in the early hours of the morning and noticed Sung
U's bedroom door open. Alexander noticed "something odd" and shook his son's
body, which was cold to the touch. Alexander called Sung Ho and they called
2
We refer to the victim as Sung U, his brother Sung Ho Han as Sung Ho, and
his father Alexander Han as Alexander for ease of reference, intending no
disrespect to the family.
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911. They noticed a "tannish bloodish" fluid coming out of Sung U's mouth and
tried to administered CPR to no avail.
Officer Matthew Kochis considered administering Narcan, but it was too
late. While in Sung U's bedroom, Kochis found two small wax pieces of paper
with a "GUCCI" stamp, a cell phone in close proximity to Sung U's body, a
hypodermic syringe filled with a substance suspected to be heroin, a lighter, and
a spoon on the floor.
Fontana asked Alexander about the cell phone. Alexander explained it
was Sung U's phone, however, he paid the bill, and the phone was under his
name. Alexander gave consent for police to access and search the phone and an
inspection revealed Sung U's phone had text messages and calls to a telephone
number listed under the contact "Mainor." The text thread from that night
showed at 7:12 p.m., Mainor texted, "am here." Sung U called Mainor's phone
five times between 10:38 and 11:01 p.m.
Fontana believed Mainor sold Sung U the heroin that killed him, and so
the following morning Fontana used Sung U's phone to contact Mainor in an
attempt to purchase heroin. Fontana messaged: "Bro, that shit was fire. You
around?" Mainor responded that he was not available but would be around after
2:00 p.m. After 2:00 p.m., Fontana messaged Mainor again to inquire if he or
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she was around, and Mainor responded: "Go to 24, dude there." Fontana,
however, did not know the location of "24" and asked Mainor to meet him near
Sung U's apartment. Mainor refused and insisted they meet at "24."
Fontana continued to try to meet Mainor, under the guise that he was Sung
U, asking Mainor to meet him in a parking lot in front of the apartment. Finally,
Fontana and Mainor agreed to meet at a Chinese restaurant; however, Fontana
did not know the location of the store as there were three Chinese restaurants
near Sung U's apartment. Mainor conveyed he was on his way and messaged:
"Hurry up, I got people waiting."
After failing to meet Mainor at the suggested location, Fontana stated that
he was at a meat market in Burlington Township and asked for Mainor's location.
Mainor responded: "The same spot as last night." After a series of
miscommunications, both Fontana and Mainor agreed to meet the following day.
However, Fontana opted not to initiate communication on that day, as the
resources to conduct a successful operation were not available.
On April 14, 2017, via text message, Mainor and Fontana agreed to meet
at Lourdes Hospital so he could purchase two bundles of the "same stuff" and
Mainor responded "[o]kay." Around 11:20 a.m., Mainor and Fontana spoke on
the phone because they determined there was a miscommunication regarding the
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location of the meeting. Fontana and Mainor went to two different Lourdes
Hospitals; Mainor went to the hospital in Camden while Fontana went to the one
in Willingboro.
Eventually, they agreed to meet at a Dunkin Donuts near the Lourdes
Hospital in Willingboro. The police positioned unmarked cars in the area.
Fontana and Mainor continued to exchange messages when Mainor explained
that he was in a Nissan. Fontana observed a silver Nissan pull into the Dunkin
Donuts parking lot at approximately 12:15 p.m. and noticed there were two
occupants in the car, a male driver and female passenger. The police officers
approached the Nissan and detained both the driver, later identified as defendant
Laporte, and the female passenger.
The officers searched defendant and found thirty bags of heroin contained
in blue wax folds, packaged in two bundles, with "GUCCI" stamped in black.
The officers also searched the Nissan and retrieved three cell phones from the
driver's side door. Fontana described two of the phones as "burner" phones,
phones with very limited capabilities such as calling and texting, and the other
phone as a Samsung smartphone. Fontana testified that defendant claimed
ownership of two of the phones, the Samsung phone and one of the burner
phones, but did not claim the other burner phone whose number was linked to
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Mainor. Extraction reports prepared by the prosecutor's office revealed
seventeen contacts from the phone linked to Mainor but did not include any text
messages or call logs. Sung U's phone number, however, was not one of the
contacts recovered from the phone.
Detective Mark Carnivale, who participated in the operation, testified that
he had the opportunity to speak briefly with defendant as he was being processed
in the police station. Carnivale testified defendant was told he was being
charged with strict liability for the drug-induced death of Sung U, after which
defendant asked him "if his boy was really dead." In an interview two weeks
after his arrest, defendant told Fontana that a man named Angel Martinez, also
known as "Pika," was the "leader of the set," and "ran the block on 24."
The Burlington County Medical Examiner's Office submitted samples of
both Sung U's peripheral blood and urine to NMS labs for testing. Sung U's
urine and peripheral blood tested positive for opiates and cannabinoids. The
Burlington County Forensic Laboratory (BCFL) also conducted tests on the
contents of the syringe and two glassine bags with a blue fold paper stamped
"GUCCI" recovered from Sung U's room. The laboratory performed two color
tests on the syringe contents, one indicating there may be an opioid present and
the other testing negative. Debera Scott, a chief forensic chemist at BCFL,
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explained the disparity between the first and second test could have resulted
from the fact that there may not have been enough of the substance there. Scott
testified the two glassine bags tested positive for opioids and explained further
testing identified the substance as pure heroin. The lab also tested fifteen of the
glassine bags recovered from defendant's person and found the substance was
also pure heroin.
Burlington County's Chief Medical Examiner Dr. Ian Hood opined Sung
U suffered from a pulmonary edema, "a very characteristic finding in somebody
who has died acutely of an opiate reaction." Dr. Hood concluded, based on his
examination, that heroin was the cause of Sung U's death.
Flor Garcia, defendant's former coworker, testified that on April 11, 2017,
he met with defendant at his home in Camden to talk about repairing a vehicle.
Garcia testified that from around 3:00 p.m. to 6:00 p.m. defendant was working
with him to repair the car. Garcia testified that around 6:00 p.m. they drove to
his house to hang out and drink beer and Garcia drove defendant back to his
home around 11:15 p.m. Garcia further testified he noticed that defendant had
only one touch screen phone on him at the time and the phone did not ring nor
did he see defendant utilize the phone during the time he was with him.
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Defendant testified that on April 11, 2017, he was abusing heroin and that
his addiction started when he was prescribed Percocet to treat an injury he
sustained while landscaping. In exchange for "a bag or two" of heroin, he would
collect money for local drug dealers and would then take the collected money to
the owner, Angel Martinez. Defendant testified that Martinez did not sell any
drugs other than heroin, and that the heroin was marked with the "GUCCI"
stamp.
According to defendant, he walked to his mother's house in Camden and
met with Garcia around 3:00 p.m. to discuss repairing a Jeep. Around 6:00 p.m.
he finished repairing the car and went to Garcia's home in Philadelphia "to drink
a couple beers." Garcia later drove him back to his home where he remained for
the rest of the night.
Defendant also testified that in March 2017, Martinez gave him a Verizon
flip phone. He testified the phone was for Martinez to contact him as he did not
work with Martinez on a daily basis. Defendant further testified that he had only
his touch screen phone with him on April 11, 2017, but carried the Verizon flip
phone and his touch screen phone on both April 12 and 13. On April 14, the
day he was arrested, defendant asserted Martinez gave him a black Posh phone
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and told him that there was supposed to be someone coming by to grab the phone
and some drugs.
Defendant testified that someone sent a text to the phone around 8:30 a.m.
to set up a drug transaction. He denied knowing the person who texted him, a
person listed in the phone as "Chino," and he never met someone with that name
before. Defendant decided to meet the person who wanted the drugs so that he
could keep some of the drugs for his personal use. He tied the heroin to his
boxers and traveled in a Nissan to the designated location. He testified that he
did not know who he was meeting at Lourdes, but when he arrived, he realized
that the person he was communicating with was Fontana.
Defendant consumed heroin and smoked marijuana on the day of his arrest
and attributed his question, whether "his boy was really dead," to the fact that
he was high and did not "know what was going on." He denied selling drugs to
Sung U and stated that the transaction leading to his arrest was the first time he
tried to sell drugs.
At the end of the State's case, defendant's lawyers asked the court to
dismiss the charge of first-degree strict liability for drug-induced death, N.J.S.A.
2C:35-9(a), which the judge denied utilizing the State v. Reyes, 50 N.J. 454,
458-59 (1967), standard.
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The jury convicted defendant of all charges. The court sentenced
defendant to an aggregate twelve-year prison term with an eighty-five percent
period of parole eligibility pursuant to NERA and five years of parole
supervision following his release.
This appeal followed.
I.
Defendant argues the trial court erred in denying his Reyes motion
because the State failed to prove, beyond a reasonable doubt, that he provided
the fatal dose of heroin. Specifically, defendant argues the State did not: 1)
provide direct evidence that Sung U purchased heroin from defendant; 2) collect
DNA fingerprints from Sung U's room; 3) disprove defendant's alibi; 4)
investigate the possibility that Martinez sold the drugs to Sung U; and 5) produce
evidence showing that defendant possessed the phone used to communicate with
Sung U and Fontana on April 11, 2017.
We use the same standard as the trial judge in reviewing a motion for
judgment of acquittal based on an insufficiency of the evidence. State v. Bunch,
180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety,
be that evidence direct or circumstantial, and giving
the State the benefit of all its favorable testimony as
well as all of the favorable inferences which
reasonably could be drawn therefrom, a reasonable
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jury could find guilt of the charge beyond a reasonable
doubt.
[Reyes, 50 N.J. at 458-59.]
Under Rule 3:18-1, we "[are] not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its existence, viewed
most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App.
Div. 1977). "If the evidence satisfies that standard, the motion must be denied."
State v. Spivey, 179 N.J. 229, 236 (2004).
The evidence in the record, viewed in its entirety and giving the State all
favorable inferences therefrom, was more than sufficient to allow a reasonabl e
jury to warrant a conviction for strict liability for drug-induced death.
N.J.S.A. 2C: 35-9(a) provides:
Any person who manufactures, distributes or
dispenses methamphetamine, lysergic acid
diethylamide, phencyclidine or any other controlled
dangerous substance classified in Schedules I or II, or
any controlled substance analog thereof, in violation
of subsection a of N.J.S.[A.] 2C:35-5, is strictly liable
for a death which results from the injection, inhalation
or ingestion of that substance and is guilty of a crime
of the first degree.
Addressing defendant's motion for judgment of acquittal, the trial judge
noted the proof surrounding defendant's heroin distribution was circumstantial
but denied the motion because the testimony Sung U died of a heroin overdose,
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paired with evidence such as the "GUCCI" stamped wax papers, as well as the
references to text messages where Fontana asked for the "same as last time,"
provided a sufficient link for a jury to find guilt.
Defendant was found with two bundles of heroin stamped "GUCCI"
similar to the glassine bags found in Sung U's room. He was in possession of
the phone that was used to communicate and conduct drug transactions with
both Sung U and Fontana, operating under the guise that he was Sung U.
Defendant's assertion that he did not receive the phone used to conduct the
transactions until April 14 and he did not know Sung U or attempt to sell him
drugs was eroded by the text messages between defendant and Fontana which
referenced prior sales between defendant and Sung U.
Based on the circumstantial evidence presented, a reasonable jury had a
substantial basis to conclude beyond a reasonable doubt that the drug s that led
to Sung U's death were purchased from defendant.
II.
Defendant asserts the trial court's decision to sentence him to a term
above the statutory minimum was arbitrary and capricious as the court placed
undue weight on aggravating factor N.J.S.A. 2C:44-1(a)(9), despite the court's
findings regarding mitigation.
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We reject defendant's excessive sentencing argument. The trial court
sentenced defendant to an aggregate term of twelve years, subject to NERA.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J.
334, 363-64 (1984). When reviewing a judge's sentencing decision, we "may
not substitute [our] judgment for that of the trial court. . . ." State v. Johnson,
118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)).
However, we may review and modify a sentence when the judge's
determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990)
(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). A trial judge is given
"wide discretion" to impose a sentence provided it is within the statutory
framework, and we must give that decision "great deference." State v. Dalziel,
182 N.J. 494, 500-01 (2005). However, in determining the propriety of a
sentence, we must make sure the sentencing guidelines have been met, the
findings on aggravating and mitigating factors are based upon "competent
credible evidence in the record," and the sentence is not "clearly unreasonable
so as to shock the judicial conscience." Id. at 501 (quoting Roth, 95 N.J. at
364-65).
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The "dominant, if not paramount, goal" of N.J.S.A. 2C:44-1's
aggravating and mitigating factors is "uniformity in sentencing." State v.
Lawless, 214 N.J. 594, 607 (2013) (quoting State v. Kromphold, 162 N.J. 345,
352 (2000)). To promote this goal, sentencing courts must "state . . . the
factual basis supporting a finding of particular aggravating or mitigating
factors," R. 3:21-4(g), and must "describe the balancing process leading to the
sentence," State v. Kruse, 105 N.J. 354, 359-60 (1987). "A careful statement
of reasons also facilitates appellate review." State v. Fuentes, 217 N.J. 57, 74
(2014).
Based on our review of the judge's stated reasons, we discern no abuse
of the court's discretion.
Affirmed.
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