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

NOT FOR PUBLICATION WITHOUT THE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.
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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 headon 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. 
3 A-3154-16T3

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.
4 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, noncustodial 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)
5 A-3154-16T3

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. 
6 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.
7 A-3154-16T3

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. 
8 A-3154-16T3

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
9 A-3154-16T3

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 
10 A-3154-16T3

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.