STATE OF NEW JERSEY VS. MARVIN D. CRUZ (12-02-0333, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3154-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN D. CRUZ,
Defendant-Appellant.
____________________________
Submitted June 4, 2018 – Decided June 12, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
12-02-0333.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on the
brief).
PER CURIAM
Defendant Marvin D. Cruz appeals from his conviction after a
jury trial for unlawful possession of .37 grams of cocaine.
N.J.S.A. 2C:35-10(a)(1). We affirm.
We glean the salient facts from the one-day trial. On October
20, 2011, at approximately 12:15 p.m., State Police Sergeant
Richard Shelton was on routine traffic patrol, traveling in a
marked police vehicle on Liberty Street in Long Branch, when he
observed a van travelling in the opposite direction "coming head-
on at [him]." The two occupants were not wearing seat belts.
Shelton stopped the vehicle, but neither man could produce a
driver's license.1 The men explained they were performing
construction work at a nearby church, a licensed driver drove them
to the job site that morning, and they were using the van to return
from their lunch break.
While Shelton was writing summonses for the two occupants of
the van, a third man, later identified as defendant, approached
the driver's side window of the police vehicle. Shelton testified
defendant's action "kind of freaked [him] out" because he was
placed "at a tactical disadvantage[]" when defendant suddenly
approached him. Defendant handed Shelton a driver's license and
1
The sergeant later explained he asked both occupants for licenses
to avoid having the van towed.
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said "I'm the one," which the sergeant inferred as meaning
defendant was the individual who had driven the other two men to
the job site earlier that day. Shelton entered defendant's
information into his vehicle's computer, and determined he had an
outstanding traffic warrant.2
A search incident to defendant's arrest revealed a black
wallet containing a bag of white powder in the billfold section.3
Suspecting the substance was cocaine, Shelton retained the bag as
evidence, and returned the wallet and the remainder of its contents
to defendant because the items had "no evidentiary value." On
cross-examination, Shelton could not recall specific details about
the contents of the wallet, but stated, "There was a small amount
of money. There were some sort of cards, you know, the usual
stuff that would be in a man's wallet."
On redirect examination, Shelton explained while he could not
recall the particular items in the wallet, he remembered they
belonged to defendant. On re-cross examination, the following
colloquy between defense counsel and Shelton ensued:
[DEFENSE COUNSEL]: . . . if you don't recall
what's in the wallet and you didn't document
2
The jurors were not informed defendant had an outstanding
warrant, but were instructed his arrest was lawful, and they should
not speculate about the basis of his arrest.
3
On appeal, defendant does not challenge denial of his motion to
suppress the evidence seized subsequent to his arrest.
3 A-3154-16T3
it any way, how can you say they belong to
[defendant]?
[SHELTON]: Because I took note, I looked at
what was in the wallet. I don't remember
specifically. I couldn't tell you [if] there
was [a] Monmouth County Library card in there,
I couldn't tell you there was, you know, a
Visa card. But it was his wallet. His stuff
was in there. It was his wallet. I took it
out of his pocket. I don't recall exactly
what it was, it was five years ago.
[DEFENSE COUNSEL]: You took it out of his
pocket. So when you took it out of his pocket
you assumed it was his wallet, is that
correct?
[SHELTON]: Yes. It was his wallet, yeah.
[DEFENSE COUNSEL]: Because you found it in his
pocket?
[SHELTON]: Yes.
Thirty-five minutes after the jurors commenced deliberations,
they found defendant guilty of third-degree possession of cocaine.
On February 17, 2017, defendant was sentenced to a one-year, non-
custodial probationary term. This appeal followed.
On appeal, defendant argues:
POINT I
THE POLICE OFFICER'S OPINION TESTIMONY
IMPROPERLY INVADED THE PROVINCE OF THE JURY
AND WAS PLAIN ERROR. U.S. CONST. AMENDS. VI,
XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10.
(Not Raised Below)
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POINT II
[THE] TRIAL COURT ERRED TO THE DEFENDANT'S
PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE
TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT.
U.S. CONST. AMEND. XIV; N.J. CONST. ART. I,
¶ 1.
(Not Raised Below)
Because defendant did not contemporaneously object to the
issues he now raises on appeal, we evaluate both newly-minted
arguments under a plain error standard of review. R. 2:10-2;
State v. Singleton, 211 N.J. 157, 182-83 (2012). Under that
standard, a conviction will be reversed only if the error was
"clearly capable of producing an unjust result[,]" i.e., if it was
"sufficient to raise a reasonable doubt as to whether the error
led the jury to a result it otherwise might not have reached[.]"
State v. Taffaro, 195 N.J. 442, 454 (2008) (citation omitted). A
defendant's failure to object leads to the reasonable inference
the issue was not significant in the context of the trial. State
v. Macon, 57 N.J. 325, 333 (1971).
Initially, defendant argues Shelton's testimony concerning
defendant's ownership of the wallet was improper opinion testimony
because the sergeant "could not remember any specifics about the
wallet." As such, defendant contends that testimony runs afoul
of the Court's holding in State v. McLean, 205 N.J. 438 (2011).
Defendant's argument is misplaced.
5 A-3154-16T3
In McLean, our Supreme Court considered whether an officer's
testimony, admitted over defense objections, about the defendant's
involvement in drug transactions constituted permissible lay
opinion testimony pursuant to N.J.R.E. 701. Id. at 448. After
analyzing the differences between expert opinion and lay opinion
testimony, the Court concluded the officer's testimony was
impermissible lay opinion because it was "an expression of a belief
in defendant's guilt" and "presumed to give an opinion on matters
that were not beyond the understanding of the jury." Id. at 463.
The Court also expressed concern that the testimony was elicited
after a question referring to the officer's training and
qualifications, thereby underscoring it was expert testimony.
Ibid.None of those concerns is implicated here. Shelton did not
opine about defendant's guilt over objection on direct
examination. Rather, the sergeant responded affirmatively to
defense counsel's line of inquiry that he assumed the wallet
belonged to defendant because Shelton physically removed it from
defendant's person. Defense counsel did not move to strike any
of Shelton's answers to the three questions he posed on re-cross
examination. We discern no error, less plain error, in permitting
Shelton's testimony in response to defense counsel's pointed
inquiry.
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Further, we agree with the State that when a defendant later
claims a trial court was mistaken for allowing him to pursue a
chosen strategy -- a strategy not unreasonable on its face but one
that did not result in a favorable outcome -- his claim may be
barred by the invited-error doctrine. See State v. A.R., 213 N.J.
542, 561-62 (2013) ("[T]rial errors that were induced, encouraged
or acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal . . . ." (citation omitted)).
The invited-error doctrine is intended to "prevent defendants from
manipulating the system" and will apply "when a defendant in some
way has led the court into error" while pursuing a tactical
advantage that does not work as planned. Ibid. (citation
omitted). The doctrine "is grounded in considerations of
fairness," but will not apply automatically if to do so would
"cause a fundamental miscarriage of justice." Ibid. (citation
omitted).
Secondly, defendant claims he was prejudiced because the
trial court instructed the jury about his decision not to testify,
without seeking his consent. The record does not support his
argument.
Following the trial court's denial of defendant's motion for
acquittal, defense counsel requested the court voir dire defendant
regarding his right to testify outside the presence of the jury.
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During that colloquy, defendant did not ask the judge to refrain
from giving the no averse inference charge. Rather, defendant
responded, in pertinent part, to the court's inquiry as follows:
THE COURT: And you understand that at the
appropriate time the [c]ourt will give the
jury an instruction that you have a
constitutional right to remain silent?
THE DEFENDANT: Yes, sir.
THE COURT: And that they cannot consider for
any purpose or in any manner in arriving at
their verdict that you did not testify. You
understand that?
THE DEFENDANT: Yes, sir.
Further, during its final jury charge, the court's
instruction regarding defendant's decision not to testify closely
tracked Model Jury Charges (Criminal), "Defendant's Election Not
to Testify" (rev. May 4, 2009). Defendant did not object to the
charge at trial or during the charge conference.
Defendant's belated reliance on State v. Smith, 100 N.J.
Super. 420, 424-25 (App. Div. 1968), lacks merit. In Smith, the
trial court refused the defendant's explicit request for a no
adverse inference charge regarding his decision not to testify.
Id. at 422. We reversed, holding a defendant is entitled to a
jury instruction that his failure to testify does not create a
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presumption of guilt, when he requests the instruction. Id. at
425.
Here, unlike Smith, the trial court did not refuse to give
an instruction requested by defendant. Nor did the court give the
instruction over defendant's objection. Rather, the judge asked
defendant whether he understood the jurors would be instructed
about defendant's constitutional right to remain silent, and they
could not consider defendant's decision in arriving at their
verdict. Defendant politely responded "Yes, sir" to both of those
questions. He did not request the court to refrain from giving
the instruction after the court expressly advised defendant it
would give such a charge. Nor did he object to the instruction
at the charge conference or at trial. See Lakeside v. Oregon, 435
U.S. 333, 339 (1978) ("It would be strange indeed to conclude that
this cautionary instruction violates the very constitutional
provision it is intended to protect."); State v. McNeil, 164 N.J.
Super. 27, 31 (App. Div. 1978).
Moreover, pursuant to Rule 1:7-2, a defendant is required to
challenge instructions at the time of trial. "Generally, a
defendant waives the right to contest an instruction on appeal if
he does not object to the instructions as required by Rule 1:7-
2." State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there
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is a failure to object, it may be presumed that the instructions
were adequate." State v. Morais, 359 N.J. Super. 123, 134-35
(App. Div. 2003) (citing Macon, 57 N.J. 325 at 333). Moreover,
the failure to "interpose a timely objection constitutes strong
evidence that the error belatedly raised [] was actually of no
moment." State v. White, 326 N.J. Super. 304, 315 (App. Div.
1999). Defendant made no such challenge here.
In short, defendant has failed to demonstrate the court's
jury instruction on his decision not to testify constituted legal
impropriety, which prejudiced his substantial rights. State v.
Burns, 192 N.J. 312, 341 (2007). Consequently, there was no error,
let alone plain error, capable of producing an unjust result.
Adams, 194 N.J. at 207 (citing R. 2:10-2).
Affirmed.
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