                                NOT FOR PUBLICATION WITHOUT THE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.
                                                                            A-4047-16T1
                                          2
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


                                                                            A-4047-16T1
                                         3
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
                                        4
            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



                                                                            A-4047-16T1
                                         5
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

                                                                             A-4047-16T1
                                         6
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.




                                                                         A-4047-16T1
                                       7
      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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