SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0831-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL E. CESAR,

Defendant-Appellant.

_______________________

Submitted March 23, 2021 – Decided April 23, 2021

Before Judges Yannotti, Mawla and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-03-0203.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew R. Burroughs, Designated Counsel, 

on the briefs).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Milton S. Leibowitz, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

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NOT FOR PUBLICATION WITHOUT THE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 was tried before a jury and found guilty of first-degree 

possession of cocaine, with intent to distribute, in violation of N.J.S.A. 2C:35-

5(a)(1) and N.J.S.A. 2C:35-5(b)(1), and other offenses. The trial judge

sentenced defendant to an aggregate prison term of twenty-four years, with eight 

years of parole ineligibility. Defendant appeals from the judgment of conviction 

(JOC) dated September 28, 2018. We affirm.

I.

On March 11, 2016, a Union County grand jury returned an indictment 

charging defendant with: third-degree possession of a controlled dangerous 

substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree 

possession of a CDS (cocaine) in a quantity of five ounces or more, with intent 

to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two); 

second-degree possession of a CDS (cocaine), with intent to distribute in or 

within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); third-degree 

possession of imitation CDS with intent to distribute, under circumstances that 

would lead a reasonable person to believe that the substance was a CDS, 

N.J.S.A. 2C:35-11(a) (count four); and second-degree eluding a law 

enforcement officer after having received a signal from such officer to bring his 

vehicle to a full stop, creating a risk of death or injury, N.J.S.A. 2C:29-2(b) 
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(count five). Co-defendant Ariel Jazmin also was charged in counts one, two, 

three, and four. In addition, Jazmin was charged with hindering a law 

enforcement officer from making an arrest, N.J.S.A. 2C:29-2(a) (count six).

At the trial, the State presented testimony, which established that on 

January 20, 2016, at approximately 8:00 p.m., law enforcement officers from 

the Union County Prosecutor's Office (UCPO) and the Linden Police 

Department conducted surveillance in the area of Park Avenue in Linden.

Detective Filipe Afonso was in an unmarked vehicle. He was accompanied by 

Sergeant William Mannix, the driver of the vehicle, and Detective Alex Lopez. 

Detective Kevin Kolbeck was in an unmarked maroon GMC Yukon truck

that was equipped with lights and sirens. He was accompanied by Detectives 

Vito Colacitti and Maurice Rawlins. Kolbeck parked his vehicle on Ingalls 

Avenue. Detective Daniel Fay was in an unmarked black pickup truck equipped 

with police lights and sirens. Lieutenant Jorge Jimenez was driving a Chevy 

Impala with a light package in the front. 

At approximately 10:30 p.m., Kolbeck observed a black Chevy Suburban 

on Alberta Avenue, which was approximately three blocks from his surveillance

location. Kolbeck moved his vehicle to Hagel Avenue to obtain a better view
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of the Suburban. Shortly after 11:00 p.m., Afonso instructed Kolbeck and Fay 

to conduct a motor vehicle stop of the Suburban. 

After the driver parked the Suburban on the side of the road, Kolbeck 

pulled up behind the vehicle and activated his lights. Fay positioned his vehicle

in front of the Suburban. The Suburban then drove around Fay's vehicle and 

sped off toward Park Avenue, at approximately sixty-five to seventy miles per 

hour. Kolbeck followed the vehicle. Jimenez was stationed on Park Avenue at 

the time. He joined the pursuit behind Kolbeck's vehicle. 

While he was following the Suburban, Kolbeck broadcasted his position 

over his police radio. The Suburban turned right and headed north on Park 

Avenue toward a park. When the Suburban drove through the intersection of 

Park and St. George's Avenue and entered the park, the driver of the Suburban 

lost control and crashed head on into a tree. 

Kolbeck parked his vehicle behind the Suburban, and Colacitti and 

Rawlins got out. As the officers were exiting the vehicle, Jazmin jumped out of 

the Suburban and ran. Jimenez saw Jazmin discard an item that appeared to be 

a kilo of suspected narcotics. Kolbeck observed Jazmin running and gave chase, 

yelling "[p]olice, get on the ground." Jazmin did not comply. 
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Jimenez positioned his vehicle to cut off Jazmin's escape route. Kolbeck 

then tackled Jazmin and brought him to the ground. The officers arrested Jazmin 

and searched him for weapons. During the search, the officers found $325 in 

cash, keys, a watch, a necklace, and a pair of earrings. Jazmin was taken to a 

hospital. 

The officers then searched the area where Jimenez saw Jazmin discard the 

item. An officer found the item and handed it to Jimenez, who gave it to Afonso. 

Meanwhile, Colacitti and Rawlins approached the passenger side of the 

Suburban. Colacitti said he could not see inside the vehicle because the 

windows were heavily tinted. 

Colacitti used a tool to shatter the rear windows of the Suburban. While 

he was on the passenger side of the vehicle, Colacitti observed defendant 

extending his hands from the front passenger-side window. The officer grabbed 

defendant's hands. 

According to Colacitti, defendant appeared to have been seated on the 

driver's side of the Suburban, and he was reaching across the vehicle toward the 

passenger-side window. Colacitti pulled defendant out of the Suburban. 

Rawlins handcuffed defendant and placed him under arrest. As Colacitti was 
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pulling defendant out of the vehicle, he observed an open, black duffle bag in 

the center console. 

In the duffle bag, Colacitti found four rectangular-shaped packages, 

wrapped with brown tape. Each package weighed a kilogram. Colacitti testified 

that the packages each contained compressed powder formed into rectangular 

blocks. He said the contents were packaged to look like cocaine. 

Colacitti and Rawlins searched defendant and recovered a set of keys, an

iPhone, approximately $596 in cash, a New York driver's license, a Rolex watch, 

three gold chains, a ring, and diamond earrings. Because defendant complained

about an injury to his leg, he was transported to a hospital. 

The Suburban was later towed from the crash site. Afonso searched the 

vehicle. He found a coat, several telephones, a piece of jewelry, and a rock-like 

substance on the driver's seat. Later, Afonso transported the item that Jazmin 

had discarded, the packages found in the Suburban, and the rock-like substance 

to the UCPO's forensic laboratory, where they were tested by Margaret Cuthbert, 

a senior forensic chemist. 

Cuthbert testified as an expert in the field of forensic chemistry and 

analysis of illegal narcotics. She stated that State's Exhibit 65 (S-65), the item 

that Jazmin had discarded and was referred to as Laboratory Item #001, weighed 
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1,021.7 grams, which is 36.03 ounces. She said the laboratory's machines are

calibrated for weight daily. 

Cuthbert further testified that S-65 was a solid, white substance with an 

off-white, sticky substance in one area in the center. She took samples from the 

sticky area and one of the corners. Both tested positive for cocaine. Cuthbert 

also performed tests on two additional samples. The test results showed cocaine 

was present in both samples. 

Cuthbert later took five additional samples from S-65. The tests of these 

samples were consistent with cocaine. After Cuthbert determined cocaine was 

present in these five samples, she conducted an infrared test. The results of that 

test were positive for the presence of boric acid. She explained that boric acid 

is used in insecticides and other chemical manufacturing. 

Cuthbert also testified about the results of the tests on the four packages

recovered from the duffel bag. According to Cuthbert, the first weighed 1,076.8 

grams, the second weighed 1,074.6 grams, the third weighed 1,077.7 grams, and 

the fourth weighed 1,097.5 grams. The tests of each package produced results

that were consistent with the presence of boric acid. 

Cuthbert also tested a sample taken from the rock-like substance

recovered from the driver's seat of the Suburban. She said it weighed 4.235 
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grams and cocaine was present in the sample. She stated that all of her findings 

were within a reasonable degree of scientific certainty.

Sergeant Gary Webb of the UCPO testified for the State as an expert in 

the field of packaging, handling, and distribution of narcotics. Webb provided 

testimony about pricing and packaging of narcotics. He discussed the 

differences between street, mid-level, and upper-level drug dealers, how kilos 

of narcotics and other substances are formed, the use of cutting agents, and

methods drug dealers use to avoid detection. 

Webb also described boric acid as a white powder. He stated that by 

adding boric acid as a cutting agent, drug distributors can increase the amount 

of the drugs they sell and thereby increase their profit margin. 

Defendant and Jazmin elected not to testify. Neither defendant presented

any witnesses.

On April 12, 2018, the attorneys provided closing statements, and the trial 

judge provided final instructions to the jury. On the morning of April 17, 2018, 

the jury began its deliberations. During their deliberations, jurors found two 

single-edge razor blades inside the pocket of defendant's jacket. The jacket had 

been admitted into evidence, but the razor blades had not been admitted or 
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marked as evidence. The judge conferred with the attorneys and they agreed 

upon an instruction the judge would provide to the jury. 

The judge then told the jurors "the only evidence that you may consider is

the [evidence] that's been brought [to your attention] and is labeled with 

exhibits. If anything . . . for any inadvertent reason was brought in and taken 

away, you shouldn't consider it." Thereafter, defendants' attorneys objected to 

the instruction. The jury continued its deliberations.

Later, the judge excused a juror. On the morning of April 18, 2018, the 

judge replaced the excused juror with an alternate and instructed the jury to 

begin its deliberations anew. 

The jury continued to deliberate and later that morning, returned its 

verdict. The jury found defendant and Jazmin guilty on counts one, two, and 

four, and not guilty on count three. In addition, defendant was found guilty on 

count five, and Jazmin was found guilty on count six. Thereafter, the judge later 

denied defendants' motion for a judgment of acquittal, notwithstanding the 

verdict. 

The judge sentenced defendant on September 14, 2018, and entered the 

JOC. This appeal followed. 
10 A-0831-18

On appeal, defendant raises the following arguments for our 

consideration:

POINT I

CERTAIN EVIDENTIARY RULINGS BY THE 

TRIAL COURT EFFECTIVELY DENIED 

DEFENDANT HIS SIXTH AMENDMENT RIGHT 

TO PRESENT A COMPLETE DEFENSE. (Raised 

Below).

A. BY GRANTING THE STATE'S MOTION TO 

LIMIT TESTIMONY AND ARGUMENT BY THE 

DEFENSE AND BY FURTHER DENYING 

DEFENDANT'S APPLICATION THAT A 

QUANTITATIVE ANALYSIS BE PERFORMED ON 

S-65, THE TRIAL COURT DENIED DEFENDANT'S 

SIXTH AMENDMENT RIGHT TO PRESENT A 

COMPLETE DEFENSE. (Raised Below).

B. THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION TO ADMIT HIS 

INCULPATORY STATEMENT UNDER N.J.R.E. 

803(c)(25). (Raised Below).

POINT II

THE TRIAL COURT ERRED WHEN IT ACCEPTED 

THE HEARSAY TESTIMONY OF THE STATE'S 

EXPERT THAT THE LABORATORY WHERE THE 

DRUGS HAD BEEN ANALYZED HAD BEEN 

ACCREDITED AND THAT THE MACHINES USED 

TO ANALYZE AND WEIGH THE SEIZED 

CONTRABAND HAD BEEN PROPERLY 

CALIBRATED AND MAINTAINED. (Raised 

Below).

POINT III
11 A-0831-18

THE TRIAL COURT ERRED WHEN IT ADMITTED 

DETECTIVE WEBB'S IMPERMISSIBLE NET 

OPINION TESTIMONY. (Raised Below).

POINT IV

AS JURY DELIBERATIONS HAD LIKELY 

PROGRESSED TO A STAGE AT WHICH 

SUBSTANTIVE ISSUES HAD BEEN DECIDED 

AND DELIBERATIONS COULD NOT COMMENCE 

ANEW, THE TRIAL COURT ERRED BY 

SUBSTITUTING AN EXCUSED JUROR AND BY 

NOT SUA SPONTE DECLARING A MISTRIAL. 

(Partially Raised Below).

POINT V

AS THE TRIAL COURT'S LIMITING 

INSTRUCTION WAS INSUFFICIENT TO CURE 

THE UNDUE PREJUDICE CAUSED BY THE 

JURY'S DISCOVERY OF RAZOR BLADES IN 

DEFENDANT'S JACKET DURING 

DELIBERATIONS, A MISTRIAL WAS THE ONLY 

REMEDY. (Raised Below). 

POINT VI

THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION FOR A JUDGMENT OF 

ACQUITTAL NOTWITHSTANDING THE 

VERDICT. (Raised Below).

POINT VII

THE TRIAL COURT'S CUMULATIVE ERRORS 

DENIED DEFENDANT HIS RIGHT TO A FAIR AND 

RELIABLE TRIAL. (Not Raised Below). 

POINT VIII

THE SENTENCE IMPOSED IS UNFAIR AND 

EXCESSIVE GIVEN THE UNIQUE 

CIRCUMSTANCES OF THIS CASE. (Raised Below).
12 A-0831-18

II.

Defendant argues that the trial judge made several erroneous evidentiary 

rulings. He contends the judge's rulings denied him of his right under the Sixth 

Amendment to the United States Constitution to present a complete defense. 

A trial court's evidentiary rulings should not be disturbed on appeal 

"absent a showing of an abuse of discretion, i.e., there has been a clear error of 

judgment." State v. Perry, 225 N.J. 222, 233 (2016) (emphasis omitted) (quoting 

State v. Brown, 170 N.J. 138, 147 (2001)). We will not reverse the trial court's 

evidentiary ruling unless it "was so wide of the mark that a manifest denial of 

justice resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). 

This standard of review applies when, as in this case, a defendant contends a

trial court's evidentiary ruling denied him of his constitutional right to present a 

defense. Ibid. (citing State v. Fortin, 178 N.J. 540, 590 (2004)).

 A. The Trial Court's Rulings Regarding S-65.

Prior to trial, defendants filed a motion to have S-65 retested. The motion 

judge granted the application. Thereafter, the UCPO's forensic laboratory took 

two samples from the exhibit and retested it in the presence of defendants' 

expert. They tested positive for cocaine. Defendants later filed another motion 

seeking further testing of five more samples from S-65. The judge granted the 
13 A-0831-18

motion and the UCPO's lab conducted the additional tests. The results of these 

tests also were positive for cocaine. 

Defendants then filed a motion seeking an analysis of S-65 to determine 

the amounts of cocaine and boric acid in the exhibit. The motion judge denied 

the application. In his decision, the judge noted that defendant had been charged 

with first-degree possession of a CDS, with intent to distribute or dispense, in a 

quantity of five ounces or more, including any "adulterants or dilutants." 

The judge found that the quantities of cocaine and boric acid in S-65 were 

irrelevant. The judge noted that "purity" of the cocaine was not an element that 

the State had to prove to establish defendants' guilt under N.J.S.A. 2C:35-5(a)(1) 

and N.J.S.A. 2C:35-5(b)(1).

In addition, the State filed a motion in limine to bar defendants from 

presenting any testimony or argument at trial concerning the percentage or 

quantity of cocaine and boric acid in S-65, including the specific purity of the 

cocaine; the unknown percentage or quantity of the cocaine and boric acid in S65, and why a quantitative test had not been performed on the exhibit. The State 

also sought to bar defendants from speculating as to what such a quantitative 

test would have revealed, and arguing to the jury that S-65 only contained a 

small amount of cocaine. 
14 A-0831-18

The trial judge granted the State's motion. Like the motion judge, the trial 

judge found there is "no purity element" in the charge under N.J.S.A. 2C:35-

5(a)(1) and N.J.S.A. 2C:35-5(b)(1). The judge again determined that the relative 

amounts of cocaine and boric acid in the exhibit were not relevant to determining 

whether defendants were guilty of that offense. 

On appeal, defendant argues that the jury should have been informed 

about the "weight ratio" of the cocaine and boric acid in S-65. He asserts that if 

S-65 contained a small amount of cocaine relative to the amount of boric acid, 

this would have supported defendants' argument that S-65 was a "sample

package" that defendants intended to use to encourage the buyer to purchase the 

four packages of boric acid. 

Defendant contends that, by denying defendants' motion for a quantitative 

analysis of S-65, and granting the State's motion in limine, the judge effectively 

denied him of his constitutional right to present a complete defense to the intent 

element of N.J.S.A. 2C:35-5. We disagree. 

N.J.S.A. 2C:35-5(a)(1) provides in pertinent part that except as authorized 

by N.J.S.A. 24:21-1 to -56, it is unlawful for any person "knowingly or 

purposely . . . to possess or have under his control with intent to . . . distribute 
15 A-0831-18

or dispense, a [CDS] or controlled substance analog." Furthermore, N.J.S.A. 

2C:35-5(b)(1) states that a person who violates N.J.S.A. 2C:35-5(a) as to

(1) [h]eroin, or its analog, or coca leaves and any salt, 

compound, derivative, or preparation of coca leaves, 

and any salt, compound, derivative, or preparation 

thereof which is chemically equivalent or identical with 

any of these substances, or analogs, except that the 

substances shall not include decocainized coca leaves 

or extractions which do not contain cocaine or ecogine, 

or 3,4-methylenedioxymethamphetamine or 3,4-

methylenedioxyamphetamine, in a quantity of five 

ounces or more including any adulterants or dilutants is 

guilty of a crime of the first degree.

[(Emphasis added).]

Here, the judges correctly found that under N.J.S.A. 2C:35-5(a)(1) and 

N.J.S.A. 2C:35-5(b)(1), the determination of whether a defendant possessed 

cocaine "in a quantity of five ounces or more including any adulterants or 

dilutants" does not turn on the relative weights of the cocaine and any 

"adulterants or dilutants." The judge's decisions on this issue were consistent

with State v. Gosa, 263 N.J. Super. 527, 536 (App. Div. 1993), where we held 

that under N.J.S.A. 2C:35-5(b)(1), the weight of the CDS for violations of 

N.J.S.A. 2C:35-5 includes the weight of the "listed drug" and "any adulterants 

or dilutants." 
16 A-0831-18

Therefore, the judges correctly found that the relevant weight of the CDS 

and any "adulterant or dilutant" has no bearing on whether the defendant is 

guilty of the offense. See also State v. Williams, 310 N.J. Super. 92, 96-97

(App. Div. 1998) (holding N.J.S.A. 2C:35-5(b) prohibits the possession of the 

specified quantity "of cocaine and any adulterants, not just the weight of the 

cocaine itself"). 

Accordingly, we reject defendant's contention that the trial judge denied 

him of the right to present a complete defense as to whether he "knowingly or 

purposely" possessed the cocaine, as charged in count two. We note that no

evidence was presented at trial that would have allowed the jury to draw the 

inference that defendants possessed S-65 to use as a sample in selling the four 

kilos of imitation cocaine the officers found in the Suburban. 

B. Admission of Defendants' Statements. 

Prior to trial, defendants filed a motion for permission to admit two outof-court statements they made during their encounters with the police. 

Defendant told the officers the contents of the packages they had recovered were 

"fake." In addition, Jazmin asked the officers, "[w]hat's the penalty for selling 

fake drugs?" The judge denied the motion.
17 A-0831-18

On appeal, defendant contends the statements were admissible under Rule

803(c)(25), the hearsay exception for statements against interest, which applies 

"regardless of whether the declarant is available as a witness." N.J.R.E. 

803(c)(1). At the time of trial, Rule 803(c)(25) allowed the introduction of:

A statement that a reasonable person in the declarant's 

position would have made only if the person believed it 

to be true because, when made, it was so contrary to the 

declarant’s proprietary, pecuniary or social interest, or 

had so great a tendency to invalidate the declarant’s 

claim against another or to expose the declarant to civil 

or criminal liability. Such a statement is admissible 

against a defendant in a criminal proceeding only if the 

defendant was the declarant.[1]

Defendants' statements did not qualify for admission under the rule. They 

may have been statements against interest regarding the possession of four kilos 

1

 Effective July 1, 2020, Rule 803(c)(25) provides:

A statement which was at the time of its making so far 

contrary to the declarant's pecuniary, proprietary, or 

social interest, or so far tended to subject declarant to 

civil or criminal liability, or to render invalid 

declarant's claim against another, that a reasonable 

person in declarant's position would not have made the 

statement unless the person believed it to be true. Such 

a statement is admissible against a defendant in a 

criminal proceeding only if the defendant was the 

declarant.
18 A-0831-18

of imitation cocaine, as charged in count four, but they were not statements 

against interest as to the possession of cocaine, as charged in count two.

We are convinced that a statement indicating that an individual may have 

committed a third-degree crime, while simultaneously indicating that the 

individual did not commit a more serious offense, is not a statement against 

interest for purposes of Rule 803(c)(25). The judge correctly found that the 

statements were not admissible. 

We are also convinced that if the statements were statements against 

interest under Rule 803(c)(25), the judge properly exercised his discretion under 

Rule 403 by precluding defendants from admitting them into evidence. The rule

provides that the court can exclude "relevant evidence if its probative value is 

substantially outweighed by the risk of: (a) [u]ndue prejudice, confusing the 

issues, or misleading the jury . . . ." N.J.R.E. 403.

Here, the trial judge found that, if admitted, the statements would confuse 

the jury because they were inculpatory as to the charge of possession of imitation 

cocaine with intent to distribute, but exculpatory as to the possession of five 

ounces or more of cocaine. The judge's decision was not a mistaken exercise of 

discretion.
19 A-0831-18

However, if the judge erred by precluding defendant from admitting the 

two statements, the error was harmless. Here, the State presented significant, if 

not overwhelming, evidence that defendants knowingly and purposely 

possessed, with intent to distribute or dispense, five ounces or more of cocaine 

"and any adulterant or dilutant" as well as four kilos of imitation cocaine. 

The statements defendants sought to admit would have provided

additional evidence that defendants possessed the imitation cocaine but would 

have had no impact on the other, more serious charge. Thus, if the trial judge 

erred by denying defendant's motion to admit the statements, the error was not 

"clearly capable of producing an unjust result." R. 2:10-2. 

III.

Defendant next argues that the trial judge erred by allowing Cuthbert to 

testify about the results of her analysis of the contraband. Defendant contends

the State failed to present documents establishing that the UCPO's forensic 

laboratory was accredited, and that the machines used to test the contraband 

were properly maintained and calibrated. Defendant asserts the judge 

improperly permitted Cuthbert to testify as to the lab's accreditation and the 

calibration of the machinery. 
20 A-0831-18

When a party in a criminal or quasi-criminal matter intends to proffer a 

certificate regarding tests of the composition, quality, or quantity of a substance, 

the party must provide notice of its intent "at least [twenty] days before the 

proceeding begins." N.J.S.A. 2C:35-19. The opposing party must provide 

notice of its intent to object, and the grounds of the objection, within ten days 

after receiving notice of the party's intent to proffer the certificate. N.J.S.A. 

2C:35-19(c). If a notice of objection is filed, the court must determine the 

admissibility of the certificate not later than two days before the beginning of 

the proceeding. Ibid.

Here, the State provided defendants with a laboratory report pertaining to 

Cuthbert's analysis of the contraband, and defendants filed a notice of objection 

to its admission. The notice did not, however, indicate that defendants intended 

to challenge the report on the basis of the lab's lack of accreditation or the failure 

to calibrate the machinery used in the tests. Defendants' attorneys also did not 

seek copies of any records on those issues.

Defendants raised the issue for the first time at trial during Cuthbert's voir 

dire. The judge then conducted a Rule 104 hearing, outside the presence of the 

jury. During the hearing, Cuthbert testified that she has been a forensic scientist 
21 A-0831-18

in the UCPO's laboratory for thirty-four years and she holds the title of senior 

forensic chemist. 

Cuthbert stated that the UCPO's laboratory was accredited. She admitted 

she does not personally calibrate the spectrometers used in the lab but said these 

instruments and weights are calibrated. The judge ruled that Cuthbert's 

testimony regarding her tests of the contraband was admissible. Then, Cuthbert 

testified before the jury that the laboratory was accredited, and the scientists 

calibrate the lab's machinery every day. 

On appeal, defendant contends the admission of Cuthbert's testimony 

regarding the accreditation of the laboratory and the calibration of the machines 

denied him of his constitutional right to confront adverse witnesses. We 

disagree. 

A person charged with a criminal offense has the right to confront his 

accusers. U.S. Const. amend. VI. "This right is founded on the belief that 

subjecting testimony to cross-examination enhances the truth-discerning process 

and the reliability of the information." State v. Kuropchak, 221 N.J. 368, 386 

(2015) (citing California v. Green, 399 U.S. 149, 159 (1970); State ex rel. J.A., 

195 N.J. 324, 342 (2008)). The Confrontation Clause generally forbids the 

admission of testimony that is directly or indirectly derived from a non-
22 A-0831-18

testifying witness and incriminates a defendant. State v. Branch, 182 N.J. 338, 

350 (2005).

Rule 703 states that if the data upon which an expert bases an opinion or 

inference is "reasonably relied upon by experts in the particular field in forming 

opinions or inferences upon the subject, the facts or data need not be admissible 

in evidence." The rule permits expert witnesses to rely upon statements in

"nontestimonial foundational documents" when formulating their opinions. 

State v. Michaels, 219 N.J. 1, 34-35 (2014). 

Documents related to a laboratory's accreditation and the calibration of its

test machines are "nontestimonial foundational documents" because they do not 

report past facts and are not generated in order to establish a fact that is an 

element of an offense. See State v. Chun, 194 N.J. 54, 142-44 (2008); see also

State v. Sweet, 195 N.J. 357, 372-74 (2008). 

In this case, the State did not present the foundational documents 

pertaining to the accreditation of the lab and the calibration of the machinery. 

However, in her testimony, Cuthbert provided essentially the same facts that 

would have been established by those certificates. The record shows she had 

personal knowledge of those facts, based on her long-term employment in the 
23 A-0831-18

UCPO's laboratory. Cuthbert properly relied upon those facts in formulating her 

opinions. 

In support of his argument that the judge erred by allowing Cuthbert's 

expert testimony, defendant relies upon State v. Miller, 170 N.J. 417 (2002). In 

that case, the defendant was indicted for possession of a CDS, and the State 

Police Forensic Science Bureau certified that the substance was cocaine. Id. at 

422. The State notified defense counsel of its intent to proffer the laboratory 

certificate pertaining to the analysis instead of a witness, pursuant to N.J.S.A. 

2C:35-19(c). Ibid. The judge admitted the certificate. Id. at 424. 

The Court explained that the purpose of N.J.S.A. 2C:35-19 is to "put the 

State on notice of those cases in which a defendant will not consent to the 

admission of the lab report and with respect to which the State must be prepared 

to produce an expert witness at trial or prove why one is not necessary." Id. at

432. The statute requires the defendant "to notify the State of his [or her] refusal 

to stipulate to the lab report and to assert that the lab results (composition, 

quality or quantity of the tested substance) will be contested at trial." Ibid. The 

defendant is not required to detail an objection to the admission of the lab 

certificate. Id. at 436. The Court held that, as so interpreted, the statutory 

procedure passes constitutional muster. Ibid.
24 A-0831-18

In this case, defendants filed a notice indicating they were objecting to the 

admission of the State's lab certificate and would be contesting the composition, 

quality, and quantity of the tested substances. Accordingly, consistent with 

Miller, the State presented Cuthbert as an expert witness to address the objection 

and testify as to her tests of the contraband and the test results. 

As noted, under Rule 703, an expert witness may rely upon facts in 

nontestimonial foundational documents when formulating an opinion. 

Michaels, 219 N.J. at 34-35. Miller does not preclude the State's expert witness 

from testifying to those facts, based on the expert's personal knowledge and 

experience, as part of the testimony addressing an objection to the admission of 

the lab certificate regarding the test results. Therefore, defendant's reliance 

upon Miller is misplaced. 

 IV.

Defendant further argues that the judge erred by permitting Detective 

Webb to testify at trial. Defendant contends Webb's report set forth inadmissible 

net opinions. 

In this case, defendants filed a motion to bar Webb's testimony, arguing 

that his expert report contained nothing but conclusions. Defendants contended 
25 A-0831-18

that Webb had not provided a methodology for his opinions, and they challenged 

his qualifications. The judge denied the motion. 

The decision of whether to admit or exclude expert testimony is 

committed to the discretion of the trial court. State v. Berry, 140 N.J. 280, 293 

(1995). "The trial court has discretion in determining the sufficiency of the 

expert's qualifications 'and [its decision] will be reviewed only for manifest error 

and injustice.'" State v. Torres, 183 N.J. 554, 572 (2005) (quoting State v. 

Ravenell, 43 N.J. 171, 182 (1964)).

"An expert is one who is qualified 'by knowledge, skill, experience, 

training, or education' and who is therefore permitted to offer testimony in the 

form of an opinion that 'will assist the trier of fact to understand the evidence or 

to determine a fact in issue.'" State v. McLean, 205 N.J. 438, 449 (2011) 

(quoting N.J.R.E. 702). Under Rule 702, expert testimony may be admitted if: 

(1) it concerns "a subject matter that is beyond the ken of the average juror;" (2) 

the testimony pertains to a field which is at a "state of the art such that an expert's 

testimony could be sufficiently reliable"; and (3) the witness has "sufficient 

expertise to offer the intended testimony." Creanga v. Jardal, 185 N.J. 345, 355 

(2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002)).
26 A-0831-18

The net opinion rule is a corollary of Rule 703 and precludes "the 

admission into evidence of an expert's conclusions that are not supported by 

factual evidence or other data." Polzo v. Cnty. of Essex, 196 N.J. 569, 583 

(2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). The rule 

"requires an expert to give the why and wherefore of his or her opinion, rather 

than a mere conclusion." Ibid. (quoting Townsend, 186 N.J. at 494).

Our courts have permitted law enforcement officers to testify as expert 

witnesses in drug cases because "the average juror is not knowledgeable about 

the arcana of drug-distribution schemes." State v. Cain, 224 N.J. 410, 426 

(2016). "Law enforcement officers with extensive training, education, and 

experience of the drug world have 'specialized knowledge [that] will assist the 

trier of fact to understand the evidence or to determine a fact in issue.'" Ibid.

(quoting N.J.R.E. 702). 

Here, the trial judge did not err by permitting Webb's testimony. Based 

on his extensive experience in law enforcement, Webb was properly qualified

as an expert in the packaging, handling, and distribution of illegal narcotics. 

The judge noted that Webb was "familiar with the manner in which [CDS] 

are used, packaged and distributed at the street, mid and upper levels as well as 

the structured criminal street gangs and their activities including but not limited 
27 A-0831-18

to drug distribution." Moreover, Webb's testimony did not run afoul of the net 

opinion rule. Webb provided a sufficient factual basis for his opinions. 

On appeal, defendant argues that Webb improperly offered an opinion as 

to the relationship between a person's expensive jewelry and drug distribution. 

The record shows, however, that Webb did not provide such an opinion at trial. 

Defendant also contends the judge erred by permitting Webb to respond 

when the assistant prosecutor asked, "[i]n your experience, how much cocaine 

would you expect somebody that's using cocaine to purchase?" Defendant 

argues that Webb did not address this issue in his report. 

"[A] trial judge has the discretion to preclude expert testimony on a 

subject not covered in the written reports furnished in discovery." Ratner v. 

General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Here, the 

judge found that the issue was sufficiently identified in Webb's expert report, 

and defendants were on notice that Webb would address the question of the 

amount of cocaine a person might possess for personal use. The judge's ruling 

was not a mistaken exercise of discretion. 

V.

Defendant also contends the trial judge erred by substituting a juror during 

deliberations after a juror was excused. He argues that the jury's deliberations 
28 A-0831-18

had proceeded to a point where substitution was not a permissible remedy and a 

mistrial was required. We do not agree.

A trial court's decision to remove and substitute a deliberating juror 

because of an inability to continue pursuant to Rule 1:8-2(d)(1) is reviewed for 

abuse of discretion. State v. Musa, 222 N.J. 554, 564-65 (2015). When a trial 

judge excuses a juror after deliberations have begun and substitutes an alternate 

juror, "the court shall instruct the jury to recommence deliberations . . . ." Rule

1:8-2(d)(1). Before making the substitution, the trial court must "consider[] 

whether the jury appears to have progressed to the point where issues have been 

decided and deliberations cannot commence anew with a substituted juror." 

State v. Terrell, 452 N.J. Super. 226, 274 (App. Div. 2016) (citing State v. Ross, 

218 N.J. 130, 151 (2014)).

In making that decision, the trial court must consider the impact the juror's 

substitution will have "on the jury process." Ross, 218 N.J. at 147. If a 

substitution of a juror would "imperil the integrity of the jury's process . . . [t]he 

court must be prepared to declare a mistrial." Ibid. Granting a mistrial in these 

circumstances is, however, "an extraordinary remedy to be exercised only when 

necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 

385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). There is 
29 A-0831-18

no "bright line rule" with respect to the length of jury deliberations that would 

trigger a finding that deliberations are too far along to substitute an alternate 

juror. Ross, 218 N.J. at 149 (quoting State v. Williams, 171 N.J. 151, 169 

(2002)). 

In deciding whether a reconstituted jury can render a just verdict, the court 

must consider, among other things, "the timing of the juror's departure, his or 

her explanation of the problem prompting the inquiry, and any communications 

from the jury that may indicate whether deliberations have progressed to the 

point at which a reconstituted and properly charged jury will be unable to 

conduct open and mutual deliberations." Ibid. The court also must consider

"whether the original jurors had formed opinions about the case in the absence 

of the alternate juror . . . ." State v. Williams, 377 N.J. Super. 130, 149 (App. 

Div. 2005) (quoting People v. Roberts, 214 Ill. 2d 106, 124 (2005)).

As stated previously, on April 12, 2018, the judge provided his final 

instructions to the jury. The proceedings resumed on the morning of April 17, 

2018, and the jury began its deliberations. During the deliberations, a juror 

informed the judge that she had an appointment for pre-surgery clearance the 

following day at 2:00 p.m. and she needed to leave by 1:00 p.m. 
30 A-0831-18

The juror also informed the judge that her surgery was scheduled for April 

19, 2018. The judge discussed the matter with counsel and asked them for their 

views on how to proceed. The attorneys agreed the judge should ask the juror 

what she wanted to do. The juror asked to be excused, and the judge granted 

the request. Defendants did not object. 

The following day, April 18, 2018, the judge substituted an alternate juror 

and instructed the reconstituted jury to begin its deliberations anew. The 

reconstituted jury returned its verdict that day. The record indicates that both 

the initial jury and the reconstituted jury deliberated for several hours. 

We are convinced that, under the circumstances, the judge did not err by 

substituting the juror with an alternate and allowing the reconstituted jury to 

begin its deliberations anew. We reject defendant's contention that the "most 

likely scenario" was that the new jury simply adopted findings made by the 

initial jury on the drug counts and then deliberated only on the eluding charges. 

Defendant's assertion is not supported by the record. 

We also reject defendant's contention that the reconstituted jury was not 

able to discuss and consider each count of the indictment thoughtfully. There is 

no evidence in the record indicating that the deliberations by the new jury were
31 A-0831-18

"illusory." The initial jury had sent three questions to the judge, including a 

request to playback a video, which the new jury also requested. 

Moreover, as noted, the judge instructed the jurors they must start their 

deliberations anew. The judge told the members of the original deliberating jury 

they must set aside and disregard what may have occurred during the earlier 

deliberations. The judge instructed the reconstituted jury it must consider all of 

the evidence presented during the trial. 

The record shows the initial jury did not proceed to a point of deliberations 

where substituting the excused juror with an alternate was not a proper remedy.

The judge was not required to declare a mistrial. Accordingly, we reject 

defendant's contention that he was denied of his right to a fair and reliable trial.

VI.

Defendant argues that the trial judge erred by refusing to declare a mistrial 

after the jury discovered razor blades in the pocket of his jacket during 

deliberations. He contends the judge's instruction was insufficient to cure the 

prejudice resulting from the jury's discovery of the razor blades. Again, we 

disagree.

The trial judge has the obligation to ensure that the jury's impartiality is 

not significantly threatened by the jury's exposure to "contact with not-record
32 A-0831-18

facts." State v. Wakefield, 190 N.J. 397, 485-86 (2007) (quoting State v. Loftin, 

146 N.J. 295, 365 (1996)). Under these circumstances, the trial judge has the 

power to grant a mistrial, but this power "is to be exercised with the greatest 

caution." State v. Winter, 96 N.J. 640, 647 (1984) (quoting State v. Witte, 13 

N.J. 598, 611 (1953)). "Unless the vice is plainly ineradicable by an instruction 

to the jury, a mistrial is not allowable of right." Ibid. (quoting Witte, 13 N.J. at 

611).

The trial judge also has the discretion to determine "whether the 

appropriate response is a curative instruction, as well as the language and detail 

of the instruction . . . [because] the trial judge . . . 'has the feel of the case and is 

best equipped to gauge the effect of a prejudicial comment on the jury in the 

overall setting.'" Wakefield, 190 N.J. at 486 (quoting Winter, 96 N.J. at 647). 

"The adequacy of a curative instruction necessarily focuses on the capacity of 

the offending evidence to lead to a verdict that could not otherwise be justly 

reached." Winter, 96 N.J. at 647. 

The record shows that on April 17, 2018, after the jury began deliberating, 

the jury notified the sheriff that razor blades had been found in the pocket of 

defendant's jacket. The judge conferred with counsel and they agreed upon a 

limiting instruction. The judge accordingly instructed the jury that:
33 A-0831-18

The [jury] room is supposed to be clear and clean and 

empty. Not decorated, and just simple so that [the] only 

things that are in there is the evidence that's brought in, 

and your collective memory of what you understood 

and heard happened. 

So the only evidence that you may consider is the 

stuff that's been brought in to you, and is labeled with 

exhibits. If anything . . . for any inadvertent reason was 

brought in and taken away, you shouldn't consider it. 

And the fact of any of it shouldn't even exist. That big 

eraser that we talked about, [whenever] I would do 

objections, and if I were to sustain it, I'd ask you to just 

take the eraser and erase.

I'm trusting and counting and knowing, 

confidently that you guys can do that. Because every 

time I did the eraser move, you guys seemed to follow 

it. And that's what we're doing right now.

So if by any chance anything was brought in 

inadvertently, and had to be taken away, please 

disregard it with the big eraser. And I just charge you 

and trust you, and I'm fully confident in you[r] guys' 

ability to . . . take that instruction to heart, and to apply 

it, please.

The judge did not mistakenly exercise his discretion by electing to address 

the discovery of the razor blades with a curative instruction. The instruction 

addressed any potential for undue prejudice that might arise from the discovery 

of the razor blades. The judge instructed the jurors that in reaching their verdict, 

they were only to consider evidence admitted during the trial. The judge's

instruction was firm, clear, and provided promptly. A mistrial was not required. 
34 A-0831-18

Defendant argues, however, that the discovery of the razor blades 

undercut his defense that the police had opened S-65 and either planted or 

contaminated the exhibit with cocaine. The contention is entirely without merit. 

As noted, the judge instructed the jury to disregard the razor blades and 

decide the case based solely on the evidence admitted during the trial. We must 

presume the jury followed the judge's instructions. State v. Martini, 187 N.J. 

469, 477 (2006) (citing State v. Marshall, 173 N.J. 343, 355 (2002)). 

 VII.

Defendant contends the judge erred by denying his motion for a judgment 

of acquittal notwithstanding the verdict. We disagree. 

In the trial court, defendants argued that the motion should have been 

granted because the jury's discovery of the razor blades was unduly prejudicial, 

and the judges' instruction was insufficient. They also argued that the State 

failed to prove that defendants intended to distribute cocaine. Defendants 

contended that the evidence showed they intended to "bait" a prospective drug 

dealer with a brick laced with cocaine, and then switch the "laced" package with 

the bricks of boric acid. The judge denied the motion. 

In reviewing the trial court's decision on a motion for a judgment of 

acquittal, we apply the same standard the trial court must apply in ruling on the 
35 A-0831-18

motion. State v. Fuqua, 234 N.J. 583, 590 (2018) (citing State v. Sugar, 240 

N.J. Super. 148, 153 (App. Div. 1990)). Like the trial court, we must determine:

Whether the evidence viewed in its entirety, and giving 

the State the benefit of all of its favorable testimony and 

all of the favorable inferences which can reasonably be 

drawn therefrom, is such that a jury could properly find 

beyond a reasonable doubt that the defendant was guilty 

of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. 

Reyes, 50 N.J. 454, 458-59 (1967); R. 3:18-1).]

We are convinced that viewing the evidence in its entirety and giving the 

State the benefit of all favorable testimony and inferences, the jury could have 

found, beyond a reasonable doubt, that defendant was guilty of the offenses 

charged in counts one, two, four, and five. As we noted previously, the judge's 

curative instruction was sufficient to address any undue prejudice that could 

have resulted from the discovery of the razor blades. Moreover, the State 

presented substantial, if not overwhelming evidence, that defendant intended to 

distribute cocaine. We therefore conclude the judge did not err by denying 

defendant's motion for a judgment of acquittal. 

Defendant's other arguments on this issue lack sufficient merit to warrant 

further discussion. R. 2:11-3(e)(2). 
36 A-0831-18

VIII.

Defendant contends the cumulative error doctrine requires reversal of his 

convictions. Again, we disagree. 

Under the cumulative error doctrine, the court may reverse a defendant's 

conviction when "any one of several errors assigned would not in itself be 

sufficient to warrant a reversal, yet if all of them taken together justify the 

conclusion that defendant was not accorded a fair trial . . . ." State v. Terrell, 

452 N.J. Super. 226, 308 (App. Div. 2016) (quoting State v. Orecchio, 16 N.J. 

125, 134 (1954)). In this matter, we have rejected all of defendant's claims of 

error. Therefore, the cumulative error doctrine does not apply. 

 IX.

Defendant argues that the sentence imposed by the trial court is excessive 

and unfair. We disagree.

Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) 

(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) 

(extent of the defendant's prior criminal record and the seriousness of the 

offenses); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others 

from violating the law). The judge found no mitigating factors. 
37 A-0831-18

The judge merged counts one (third-degree possession of CDS) with count 

two (first-degree possession of CDS with intent to distribute or dispense), and 

sentenced defendant on count two to a sixteen-year prison term, with eight years 

of parole ineligibility. The judge also sentenced defendant to a concurrent fouryear prison term on count four (third-degree possession of imitation CDS), and 

a consecutive eight-year term on count five (second-degree resisting 

arrest/eluding). 

On appeal, defendant contends the aggregate sentence of twenty-four 

years of imprisonment, with eight years of parole ineligibility, is manifestly 

unfair and excessive "given the unique facts of this case." He contends the 

imposition of a fifty percent parole disqualifier on count two was excessive. 

Defendant again argues the trial judge denied him of an opportunity to 

present a complete defense. He asserts the judge improperly commented on the 

damage caused when the Suburban crashed into the tree. He also contends the 

judge failed to analyze whether a consecutive sentence should be imposed in 

accordance with the guidelines in State v. Yarbough, 100 N.J. 527, 643-44

(1985). 

We review the trial court's sentencing determinations "in accordance with 

a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "The 
38 A-0831-18

reviewing court must not substitute its judgment for that of the sentencing 

court." Ibid. Therefore, this court:

[M]ust affirm the sentence unless (1) the sentencing 

guidelines were violated; (2) the aggravating and 

mitigating factors found by the sentencing court were 

not based upon competent and credible evidence in the 

record; or (3) "the application of the guidelines to the 

facts of [the] case makes the sentence clearly 

unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 

(1984)).]

We are convinced that the record supports the judge's finding of 

aggravating factors and his determination that no mitigating factors applied. We 

again note that the judge did not deny defendant of his right to present a 

complete defense. In addition, the judge's comment regarding the tree was not 

a significant factor in the judge's sentencing determination. 

We also find no merit to defendant's contention that the judge erred by 

imposing a consecutive sentence on count five. Trial judges have discretion to 

determine if a sentence should be concurrent or consecutive. State v. Cuff, 239 

N.J. 321, 350 (2019). 

When deciding whether to impose concurrent or consecutive sentences, 

the court considers the following guidelines established in Yarbough, 100 N.J. 

at 643-44:
39 A-0831-18

(1) there can be no free crimes in a system for which 

the punishment shall fit the crime; 

(2) the reasons for imposing either a consecutive or 

concurrent sentence should be separately stated in the 

sentencing decision; 

(3) some reasons to be considered by the sentencing 

court should include facts relating to the crimes, 

including whether or not:

(a) the crimes and their objectives were 

predominantly independent of each other;

(b) the crimes involved separate acts of violence 

or threats of violence; 

(c) the crimes were committed at different times 

or separate places, rather than being committed 

so closely in time and place as to indicate a single 

period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to 

be imposed are numerous; 

(4) there should be no double counting of aggravating 

factors; 

(5) successive terms for the same offense should not 

ordinarily be equal to the punishment for the first 

offense . . . .[2]

2

 Yarbough included a sixth guideline placing an "outer limit" on the cumulation 

of consecutive sentences. Id. at 644. This guideline was eliminated by an 

amendment to N.J.S.A. 2C:44-5(a) enacted in 1993. L. 1993, c. 223.
40 A-0831-18

Here, the judge stated that under Yarbough, a consecutive sentence was 

warranted because there are "no free crimes" in our system of justice. The judge 

noted that the possession of the cocaine and imitation cocaine was "one thing," 

but operating the car to elude the police was "an independent act." The judge 

found that a consecutive sentence was warranted for this separate, independent

offense. 

On appeal, defendant argues that the judge misapplied Yarbough and erred 

by imposing a consecutive sentence because his initial flight from the police was 

likely the product of confusion and fear. He contends the pursuing officers

appeared suddenly in unmarked cars, forcing him to stop and blocking his 

escape. 

Defendant asserts his flight from the police was "an extension" of the 

underlying offense of distribution of a CDS. He claims the offenses were 

predominately interrelated and not independent. He contends the sentences on 

counts two and five should have run concurrently. 

We are convinced, however, that the judge properly considered the 

Yarbough factors, and the record supports the judge's finding that defendant's 

flight from the police, and the manner in which it was undertaken, was a separate 

and independent offense for which a consecutive sentence was appropriate. The 
41 A-0831-18

judge aptly noted that under Yarbough, "there can be no free crimes in a system 

for which the punishment shall fit the crime . . . ." Id. at 644. 

We conclude the judge's imposition of a consecutive sentence was not a 

mistaken exercise of discretion, and the resulting aggregate sentence was not 

excessive or unfair.

Affirmed.