STATE OF NEW JERSEY VS. PAUL PIAZZOLLA (13-06-0844, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4047-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL PIAZZOLLA,
Defendant-Appellant.
________________________
Submitted February 6, 2019 – Decided June 3, 2019
Before Judges Nugent, Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-06-
0844.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robert Carter Pierce, Designated Counsel,
on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Paul Piazzolla appeals from his conviction for third-degree
receiving stolen property, N.J.S.A. 2C:20-7, four counts of fourth-degree illegal
possession of prescription legend drugs, N.J.S.A. 2C:35-10.5(a)(3), and one
count of third-degree illegal possession of a controlled dangerous substance
(Valium), N.J.S.A. 2C:35-10(a)(1).1 He also appeals from the aggregate
sentence of eight years in prison with four years of parole ineligibility. We
affirm the conviction and the sentence.
I
We begin by summarizing the most pertinent trial evidence. I.K.2 testified
that he left his car parked on the street near an auto repair garage while he talked
to the mechanic. After returning home, he realized that his wallet and cell
phone, which had been on the passenger seat of the car, were missing. Using
cell phones belonging to his brother and a friend, I.K. activated a "find my
phone" application (tracking app) that allowed him to track the location of his
missing cell phone. The tracking app led him to an apartment complex. When
I.K. could not pinpoint the location of his missing phone in the complex, he went
1
The jury acquitted defendant of burglary and criminal trespass. On defendant's
post-trial motion, the trial court dismissed one count of theft by unlawful taking
and one count of receiving stolen property.
2
We use initials to protect the victims' privacy.
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to the police, who brought him back to the complex. This time, I.K. and the
police, using one of the other phones, were able to pinpoint I.K.'s missing phone
in an area near building C. In that same location, I.K. also spotted a man, later
identified as defendant, who he had seen walking near his car when he was
visiting the garage. Defendant had a black duffel bag with him. Using the
tracking app, I.K. activated the "ring" function of his missing phone, which
began ringing inside the duffel bag.
After I.K. made the missing phone ring several times, the police arrested
defendant. They searched him incident to the arrest and, in his pockets, found
several blue pills in a plastic bag and four prescription pill bottles. They later
searched the duffel bag pursuant to a warrant and found I.K.'s cell phone and
wallet, and some costume jewelry.
From the name and address on the labels of the pill bottles, the police
eventually located M.L.M., who had previously reported a burglary and theft at
her house. M.L.M. identified the pills as prescription drugs belonging to her
late father. She identified the jewelry as hers. At the trial, M.L.M. testified that
she had taken care of her father before his death, including buying and
administering his prescription medications. She was therefore familiar with the
medications in the four pill bottles. She testified that she paid $1200 for the
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four medications at a supermarket pharmacy, because her father had no
prescription drug insurance. M.L.M. specifically identified each bottle of pills
and identified her handwriting on the bottom of each bottle. She also identified
the prescription pills themselves, by name, after looking in the bottles and
observing the pills inside.
The prosecutor presented evidence that the loose blue pills in the plastic
bag were sent to a forensic laboratory and testing of one of the pills determined
it was Valium. However, the pills in the labeled prescription bottles were not
sent for testing. As to those drugs, the State relied on circumstantial evidence,
including the prescription labels on the bottles and M.L.M.'s identification of
the pills. The defense presented no evidence at the trial.
II
On this appeal, defendant presents the following points of argument for
our consideration:
I. THE PROSECUTOR COMMITTED
MISCONDUCT DURING THE STATE'S
SUMMATION WHEN HE CAST UNJUSTIFIED
ASPERSIONS UPON MR. PIAZZOLLA'S DEFENSE
THAT THE STATE DID NOT PROVE THEIR CASE
BEYOND A REASONABLE DOUBT, WHICH
WARRANTS A NEW TRIAL.
II. THE TRIAL COURT ERRED BY NOT
GRANTING MR. PIAZZOLLA'S MOTION FOR A
A-4047-16T1
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JUDGMENT OF ACQUITTAL BECAUSE THE
CONVICTIONS ON COUNTS FIVE, SIX, SEVEN
AND EIGHT FOR "POSSESSION OF A LEGEND
DRUG," WERE AGAINST THE WEIGHT OF THE
EVIDENCE.
III. MR. PIAZZOLLA'S CONVICTON FOR
RECEIVING STOLEN PROPERTY MUST BE
REVERSED BECAUSE IT CLEARLY APPEARS
THE CONVICTION WAS A MISCARRIAGE OF
JUSTICE UNDER THE LAW. (Not Raised Below)
IV. THE SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE.
After reviewing the trial record in light of the applicable legal standards, we find
no merit in any of those contentions.
Point I is without sufficient merit to warrant discussion beyond the
following comments. R. 2:11-3(e)(2). The prosecutor commented in summation
that the facts were "bad" for the "defense" but defense counsel was nonetheless
attempting to convince the jury that there was reasonable doubt. Judge Dennis
V. Nieves sustained defense counsel's objection and gave a curative instruction
to which the defense did not object. In a written opinion, the judge later denied
defendant's motion for a new trial. We affirm on this point substantially for the
reasons stated by Judge Nieves. We conclude that the judge's instruction was
sufficient to cure any possible prejudice from the prosecutor's comments. We
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find no abuse of the judge's discretion in denying the new trial motion. See State
v. Winter, 96 N.J. 640, 646-47 (1984).
Defendant next contends that his conviction on four counts of possession
of a prescription legend drug was against the weight of the evidence. He argues
that the State failed to prove an element of the crime because the prosecution
did not present scientific evidence that the pills were, in fact, prescription legend
drugs. See N.J.S.A. 2C:35-10.5(a)(3). As defined in the Criminal Code, the
term "prescription legend drug"
means any drug which under federal or State law
requires dispensing by prescription or order of a
licensed physician, veterinarian, or dentist and is
required to bear the statement "Rx only" or similar
wording indicating that such drug may be sold or
dispensed only upon the prescription of a licensed
medical practitioner and is not a controlled dangerous
substance or stramonium preparation.
[N.J.S.A. 2C:35-2.]
Defendant concedes that M.L.M.'s testimony constituted "some circumstantial
evidence" of the drugs' identity, and he cites no case law precluding the State
from using circumstantial evidence to prove the identity of a pill as a
prescription legend drug.
In this case, we conclude there was sufficient circumstantial evidence that
the pills in each bottle were prescription legend drugs. That evidence includes
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the prescription label on each bottle and the testimony of M.L.M., identifying
each prescription bottle and each type of pill from personal knowledge based on
having bought them from the pharmacy and administered them to her father.
See State v. Gosa, 263 N.J. Super. 527, 537 (App. Div. 1993) (holding that the
State may rely on circumstantial evidence to prove the amount of cocaine
defendant possessed, without lab-testing each vial).
We decline to address Point III because defendant did not file a motion
for a new trial based on insufficient evidence of the value of the stolen drugs.
See R. 2:10-1; State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006).
However, even if we were to consider the argument, it is wholly without merit,
because M.L.M. testified to the $1200 she spent to purchase the prescriptions.
No further discussion is warranted. R. 2:11-3(e)(2).
Finally, we find no abuse of discretion or other error in the sentence. See
State v. Bieniek, 200 N.J. 601, 607-08 (2010). Based on defendant's very
extensive prior criminal record, Judge Nieves imposed a discretionary extended
term of eight years, half without parole, for third-degree receiving stolen
property. The judge imposed concurrent terms for each of the remaining
convictions.
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On this appeal, defendant argues that the trial judge failed to find
mitigating factor two (defendant did not contemplate that his actions would
cause serious harm) and factor four (defendant's mental illness). See N.J.S.A.
2C:44-1(b)(2), -1(b)(4). We cannot agree. The judge considered those
mitigating factors, but explained why he did not give weight to either of them.
See State v. Dalziel, 182 N.J. 494, 504-05 (2005). Defendant's additional
sentencing arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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