SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3678-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO CABRERA-PENA,

Defendant-Appellant.

_________________________

Submitted March 8, 2022 – Decided March 24, 2022

Before Judges Fisher, Currier, and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-07-0516.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Scott M. Welfel, Assistant Deputy Public 

Defender, of counsel and on the brief).

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Milton S. Leibowitz, 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NOT FOR PUBLICATION WITHOUT THE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 Mario Cabrera-Pena, and two others,1 were charged with firstdegree robbery, N.J.S.A. 2C:15-1, second-degree conspiracy to commit robbery, 

N.J.S.A. 2C:5-2, and other offenses arising from a holdup of a gas station in 

Rahway at approximately 1:00 a.m., on April 10, 2016. After the denial of their 

motions to suppress physical evidence and statements made to police, the three 

defendants were tried together. Defendant Mario Cabrera-Pena was acquitted of 

all the charges except third-degree theft, a lesser-included offense of the robbery 

charge. The judge imposed a five-year probationary sentence.

Defendant appeals, arguing:

I. THE TRIAL JUDGE ERRED IN DENYING THE 

MOTION TO SUPPRESS THE EVIDENCE AS 

THERE WAS NO REASONABLE SUSPICION FOR 

THE STOP, THE OFFICER'S UNLAWFUL SEARCH 

OF THE VEHICLE WAS NOT A VALID 

PROTECTIVE SWEEP, AND THE ULTIMATE 

CONSENT SEARCH OF THE VEHICLE WOULD 

NOT HAVE OCCURRED BUT FOR THE INITIAL 

UNLAWFUL SEARCH AND WAS THEREFORE 

NOT INEVITABLE.

II. THE COURT'S RESPONSES TO THE JURY'S 

NOTE THAT IT WAS IRRECONCILIABLY 

DEADLOCKED AND A SUBSEQUENT NOTE 

THAT AT LEAST ONE JUROR WAS NOT BEING 

1 The appeals of the other two defendants – Jose Mena (A-3508-18) and Angel 

Nunez-Hernandez (A-539-19) – are disposed of by way of separate opinions also 

filed today.
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OBJECTIVE IMPROPERLY COERCED THE JURY 

TO OVERCOME ITS DEADLOCK.

III. THE COURT ERRONEOUSLY PRECLUDED 

DEFENDANT FROM TESTIFYING ABOUT HIS 

MENTAL FACULTIES AFTER CONSUMING BEER 

AND MARIJUANA, EXCLUDING THE ONLY 

REASONABLE EXPLANATION OF HOW HE 

FAILED TO REALIZE HIS CO-DEFENDANT WAS 

COMMITTING A ROBBERY, AND THEREBY 

DEPRIVED HIM OF HIS CONSTITUTIONAL 

RIGHT TO PRESENT A COMPLETE DEFENSE.

We reject defendant's first two points for the reasons expressed in the separate 

appeal of a co-defendant that was also filed today. See State v. NunezHernandez, No. A-539-19 (App. Div. 2022). To the extent defendant raises any 

additional arguments about the denial of his motion to suppress based on the 

stop or search of the vehicle or any additional arguments about the judge's 

responses to notes sent by the deliberating jury, we find they have insufficient 

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

We also reject defendant's third point, in which he argues the judge 

erroneously precluded him from testifying about his mental faculties as the 

result of consuming beer and marijuana on the night of the offense. Defendant 

testified at trial and he based his defense to the charges on a claim that he did 

not realize Mena was engaged in a robbery of the gas station.
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Defendant argues that the limits placed on his testimony deprived him of 

his constitutional right to present a complete defense. The State counters by 

arguing this testimony was an attempt to assert the affirmative defense of 

voluntary intoxication, which was not proper because defense counsel never 

provided the State with written notice of that defense as required by Rule 3:12-

1.

To be sure, both the Federal and State Constitutions guarantee the accused

"a meaningful opportunity to present a complete defense." Crane v. Kentucky, 

476 U.S. 683, 690 (1986). The accused has a "fundamental right to elicit 

testimony favorable to the defense before the trier of fact" and that right is 

"essential to the due process right to a 'fair opportunity to defend against the 

State's accusations,' and thus 'among the minimum essentials of a fair trial.'"

State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 

U.S. 284, 294 (1973)). That right, "however, may . . . bow to accommodate 

other legitimate interests in the criminal trial process, such as established rules 

of evidence and procedure designed to ensure the fairness and reliability of 

criminal trials." Ibid. (internal quotation marks omitted). One of those rules is

Rule 3:12-1, which obligates a defendant to "serve written notice on the 

prosecutor if the defendant intends to rely on . . . [i]ntoxication, [N.J.S.A.] 2C:2-
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8(d) . . . [n]o later than seven days before the Initial Case Disposition 

Conference." Defendant served no such notice.

Notwithstanding the failure to serve notice of an intoxication defense, 

defense counsel elicited from defendant that he drank eight or nine beers on the 

evening of the offense. Defense counsel then asked whether, after consuming 

that many beers, defendant could "feel the [e]ffects" of same. At that point the 

State objected, arguing the defense was trying to establish an intoxication 

defense of which the State had no prior notice. Defense counsel argued that she 

was merely trying to show the effect of the alcohol on defendant's "mental state." 

The judge sustained the State's objection and struck counsel's question regarding 

how the alcohol made defendant feel. Defense counsel was permitted to elicit 

that defendant had been smoking marijuana on the evening of the offense.

We find no error or abuse of discretion in the trial judge's rulings nor do 

we view the limitations placed on defendant's testimony, if erroneous, as 

harmful to the defense. The judge correctly precluded defendant from doing 

indirectly what he had chosen not to do directly, namely, to present an 

intoxication defense. At the same time, defendant was allowed to testify about 

his consumption of alcohol and use of marijuana, from which the jury could 

determine defendant's state of mind during the events in question. 
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To the extent defendant made any other arguments we have not expressly 

addressed, we find they are without sufficient merit to warrant further discussion 

in a written opinion. R. 2:11-3(e)(2).

Affirmed.