                        NOT FOR PUBLICATION WITHOUT THE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-3281-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NICHOLAS N. ALEXANDER, a/k/a
NICK ALEXANDER,

     Defendant-Appellant.
_________________________________________

              Submitted May 15, 2018 – Decided June 14, 2018

              Before Judges Yannotti and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment No.
              15-03-0253.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stefan Van Jura, Deputy Public
              Defender II, of counsel and on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Adam D. Klein, Deputy Attorney
              General, of counsel and on the brief).

PER CURIAM

        Defendant was tried before a jury and found guilty of third-

degree     possession     of   a   controlled    dangerous    substance     (CDS),
specifically methamphetamine, Schedule II, contrary to N.J.S.A.

2C:35-10(a)(1). Defendant appeals from the judgment of conviction

dated February 3, 2017. We affirm.

                                  I.

     A Cape May County grand jury charged defendant with third-

degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one), and third-

degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two).

Defendant thereafter filed a motion to suppress physical evidence.

Following an evidentiary hearing, the trial court denied the

motion. The court later granted the State's motion to dismiss

count one, and defendant was tried before a jury on count two.

     At the trial, Patrolman Matthew Gamble of the Lower Township

Police Department (LTPD) testified that on January 30, 2015, at

around 9:00 p.m., dispatch directed him to respond to a residence

on Maple Avenue to check on a person named "Nicholas Alexander."

Gamble went to the residence and walked around the exterior of the

home but found nothing unusual.

     Patrolman Ryan Hansberry of the LTPD arrived on the scene.

Gamble and Hansberry checked the front door and found that it was

unsecured. The officers announced that they were from the "Lower

Township Police" but received no response. They entered the house

and began to clear the house for officer safety. While in the

living room, the officers heard someone state, "[W]hat's going

                                  2                        A-3281-16T4
on?"   Gamble   said   he   believed   the   voice   was   coming   from   the

bathroom.

       Gamble asked whoever was in the residence to come out with

his hands up. Initially, no one responded. The officers repeated

the command. A man quickly exited the bathroom, asked what was

going on, and ran into the adjacent bedroom. Gamble identified the

man as defendant. Gamble and Hansberry directed defendant to come

out with his hands up. He failed to comply, and the officers

repeated their command. Eventually, plaintiff came out with his

hands up. He was wearing a pink towel around the waist, and had a

black cell phone in his hand.

       Gamble told defendant to put the phone down and asked if

anyone else was in the house. Defendant said he was not sure. At

that point, Hansberry began to clear the kitchen area to ensure

no one else was in the house. Gamble opened the bathroom door and

on the back of the toilet, found a spoon with white powder. Gamble

asked defendant what the substance was. Gamble believed it was

crystal methamphetamine.

       In the bedroom from which defendant emerged, the officers

found more white powdery substance. On the bed, the officers found

a plate with white powder on it. The officers also found several

bags with a residue of white powder, hypodermic needles, and a



                                       3                             A-3281-16T4
razor blade to split the powder. Hansberry took photos of the

contraband.

     Gamble said they were in the house for about an hour. During

that time, the officers did not see any other residents. Gamble

testified that he did not observe anything that led him to believe

that anyone else was living in the house. He acknowledged, however,

that defendant's mother owned the house and sometimes rented out

rooms.

     Hansberry also described the officers' entry into the house

and their encounter with defendant. Hansberry testified that he

went into the bedroom that defendant had entered and observed a

plate    on    the   bed   with     white    substance   believed    to     be

methamphetamine. He also found glassine baggies containing a white

substance     also   thought   to   be   methamphetamine,   and   hypodermic

needles.

     Hansberry and Gamble further testified that because defendant

claimed he was injured and said he had been doing methamphetamine

for three days to harm himself, they called "rescue." Hansberry

stated that in the past, defendant's mother had rented rooms in

the house, but he did not know if she was renting any rooms at

that time. Hansberry also stated that the house had an upstairs

apartment, but when he cleared the rooms, he did not enter that

apartment.

                                         4                           A-3281-16T4
       Defendant elected not to testify, and he did not call any

witnesses. In summation, defendant's attorney argued the State had

failed to prove beyond a reasonable doubt that defendant knowingly

possessed the CDS. Counsel stipulated that the CDS found in the

home    was     methamphetamine.     Counsel          argued,   however,     that

defendant's mother owned the home and at times, she rented out

rooms. Counsel also pointed out that there also was an upstairs

apartment in the house.

       Counsel asserted that the officers had cleared the house but

did not see anyone other than defendant. The officers said they

did not know whether anyone was living upstairs. Counsel argued

that this was enough evidence to establish reasonable doubt as to

whether defendant had control over and possession of the illegal

substance.

       The    jury   found   defendant       guilty   of   possession   of   CDS.

Thereafter, the trial court sentenced defendant to a flat five-

year term of incarceration. This appeal followed.

       On appeal, defendant raises the following arguments:

              POINT I
              DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL
              COURT'S   FAILURE   TO  DELIVER   AN   ADVERSE
              INFERENCE   CHARGE   REGARDING   THE   STATE'S
              INEXPLICABLE LOSS OF AUDIO RECORDINGS OF
              COMMUNICATIONS    BETWEEN    THE    RESPONDING
              OFFICERS AND DISPATCH. (Not Raised Below).



                                         5                               A-3281-16T4
            POINT II
            THE MAXIMUM FIVE-YEAR PRISON SENTENCE WAS
            MANIFESTLY EXCESSIVE FOR SIMPLE POSSESSION OF
            A PERSONAL USE QUANTITY OF METHAMPHETAMINE IN
            A PRIVATE RESIDENCE.

                                        II.

     Defendant contends the trial judge erred because he did not

provide the jury with an adverse inference charge regarding the

State's   failure     to   retain     audio   recordings    of   communications

between   the      responding    officers     and    the   police    dispatcher.

Defendant asserts that his only defense was that he did not

knowingly possess the drugs, and for that defense to be viable,

he had to show that the drugs belonged to someone else, perhaps

someone who rented a room in the house from defendant's mother.

     Defendant asserts that if the officers' communications with

dispatch revealed that the officers had encountered any other

person on the scene, such evidence would have undercut Gamble's

and Hansberry's credibility. Defendant contends that despite their

"centrality" to the case, the State did not retain the dispatch

recordings.

     Defendant contends that because the recordings might have

contained evidence adverse to the State's case, the judge was

obligated     to    provide     the    jury   with    an   adverse    inference

instruction. Defendant contends the judge's failure to provide

that instruction denied him of due process and a fair trial.

                                         6                               A-3281-16T4
     We note that defendant did not seek the adverse inference

charge at trial. Therefore, we must determine whether the judge's

failure to provide the instruction constitutes plain error, that

is, an error "clearly capable of producing an unjust result." R.

2:10-2.

     "The mere possibility of an unjust result is not enough."

State v. Funderburg, 225 N.J. 66, 79 (2016). To warrant reversal,

the error must raise a "reasonable doubt . . . as to whether the

error led the jury to a result it otherwise might not have

reached." Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

     In State v. W.B., 205 N.J. 588, 597 (2011), the defendant was

charged with the sexual abuse of his fourteen-year-old step-

daughter. The investigating detective destroyed the notes she took

of interviews she conducted of the defendant and the victim. Id.

at 607. The Court determined that Rule 3:13-3(c) required the

State to provide the defense with the writings of any police

officer under the prosecutor's supervision. Id. at 608.

     The Court stated that because an officer's notes may be of

aid to the defense, the trial court may impose "an appropriate

sanction" if the officer has not preserved the notes of any

interviews with the defendant or key witness. Ibid. (citations

omitted). The Court ruled that prospectively, if the officer's

                                7                          A-3281-16T4
notes are lost or destroyed, a defendant may be entitled to an

adverse inference charge, molded to the facts of the case. Id. at

608-09. However, because the defendant did not request the adverse

inference charge before final jury instructions, and did not raise

the issue in a motion for a new trial, the Court refused to hold

that the defendant was entitled to the instruction. Id. at 609.

       In State v. Dabas, 215 N.J. 114, 117 (2013), the defendant

was    found   guilty   of    murdering      his   wife,   based       largely       upon

statements the defendant made to the prosecutor's investigators.

An investigator purposefully destroyed the notes taken during the

interrogation. Ibid.         The Court held that the investigator's notes

were    discoverable     material     under        Rule    3:13-3(c),       and       the

prosecutor violated the rule by failing to retain the notes. Id.

at 133-35.

       The Court determined that the trial court erred by denying

the defendant's request for an adverse inference charge, noting

that    the    charge   is   one   permissible       remedy      for   a   discovery

violation. Id. at 140-41. The Court stated that the purpose of the

charge is to "balance the scales of justice." Id. at 140. The

Court stated that the trial court should have instructed the jury

that the State had a duty to produce the pre-interview notes to

the    defense,   and   because    the    State     did    not    make     the     notes



                                         8                                       A-3281-16T4
available, the jury could "draw an inference that the contents of

the notes were unfavorable to the State." Id. at 141.

     Applying the principles of W.B. and Dabas, we conclude the

trial judge's failure in this case to provide the jury with an

adverse inference charge sua sponte is not reversible error. The

State's discovery obligation under Rule 3:13-3(b)(1) applies to

all "relevant material." Rule 3:13-3(b)(1)(E) requires disclosure

of, among other materials, "sound recordings" that are within the

prosecutor's "possession, custody or control."

     However, in this case, defendant has not shown that the State

violated its discovery obligation by failing to retain the dispatch

recordings. Defense counsel never demanded that the State preserve

these recordings.

     Moreover,        defendant    has       not     shown     that    the   dispatch

recordings were relevant evidence. "Evidence is relevant if it

'ha[s] a tendency in reason to prove or disprove any fact of

consequence      to    the    determination         of   the   action.'"     State      v.

Hernandez, 225 N.J. 451, 462 (2016) (quoting N.J.R.E. 401).

     Defendant speculates that the officers may have come upon

someone   else    in    the    house   and     mentioned       that   to   the    police

dispatcher.      Defendant     suggests       the    dispatch    tapes     would     have

allowed his attorney to challenge the credibility of the officers.

However, there is no testimony or evidence supporting defendant's

                                          9                                      A-3281-16T4
speculation. There is no evidence indicating that in their trial

testimony, the officers falsely stated that defendant was the only

person they found in the house.

      We conclude that under the circumstances, imposition of a

discovery sanction was not warranted. The judge's failure to

provide an adverse inference charge sua sponte was not an error,

let alone an error "clearly capable of producing an unjust result."

R. 2:10-2.

                                      III.

      Defendant also argues that his sentence is excessive. He

contends the sentence should be set aside and the matter remanded

for resentencing.

      "Appellate     courts     review        sentencing   determinations          in

accordance with a deferential standard." State v. Fuentes, 217

N.J. 57, 70 (2014). We must affirm the sentence if: (1) the trial

court followed the sentencing guidelines; (2) the court's findings

of aggravating and mitigating factors were based on competent and

credible evidence in the record; and (3) the resulting sentence

is   not   clearly    unreasonable       so    as   to   "shock    the   judicial

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

(1984)).

      Here,   the    trial    court   found      aggravating      factors    three,

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another

                                      10                                    A-3281-16T4
offense); six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal

record and the seriousness of the offenses of which he had been

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

defendant and others from violating the law).

      The   judge    noted       that   this       matter   represents        defendant's

fourth   felony-level        conviction.           Defendant      has    a    significant

criminal history that includes at least nine arrests, four of

which were as a juvenile. Defendant has three prior indictable

convictions, two of which were in Florida, and which were juvenile

cases waived to adult court.

      Defendant was sentenced to a probationary term for his first

indictable conviction, but he violated the terms of probation and

was   sentenced     to    four    years   in       New   Jersey    State      Prison.        In

addition, at the time of sentencing, defendant had a pending first-

degree   charge     of     maintaining        or    operating      a    CDS     production

facility.

      The judge found that aggravating factor three was present due

to defendant's recidivism and substance abuse. The judge gave that

factor substantial weight. The judge found aggravating factor six

due to the extent of defendant's prior criminal record and the

seriousness of the offenses involved. The judge gave that factor

"slightly substantial weight." The judge found aggravating factor

nine,    noting     that     there      was    a     need    to    deter        defendant,

                                          11                                          A-3281-16T4
specifically, and others from violating the law. The judge gave

aggravating factor nine very substantial weight.

     The judge also found mitigating factor two applied, N.J.S.A.

2C:44-1(b)(2) (defendant did not contemplate that his conduct

would cause or threaten serious harm). The judge determined,

however, that this factor should be given "very slight weight."

     The judge also found the record did not support the finding

of mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's

conduct neither caused nor threatened serious harm); and ten,

N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond favorably

to probation) did not apply. The judge stated that because the

police did not know what they would find in the home, defendant's

conduct could have caused or threatened serious harm. The judge

additionally stated that in view of defendant's prior criminal

record, a probationary sentence was not appropriate.

     The judge found that the aggravating factors substantially

outweighed    the   sole   mitigating     factor.    The   judge   therefore

determined that a five-year term of imprisonment was appropriate

under   the   circumstances.   The    judge   also    imposed   appropriate

monetary fees and penalties.

     On appeal, defendant argues the judge should have found

mitigating factor one, and given significant weight to mitigating

factors one and two. He further argues that the judge should have

                                     12                              A-3281-16T4
given minimal weight to the aggravating factors. He therefore

argues that the five-year sentence is manifestly excessive.

    We   disagree.    We   are   convinced    the   judge    followed   the

applicable    sentencing   guidelines   and   the   record   supports   the

judge's findings on the aggravating and mitigating factors. The

sentence imposed is not excessive and does not shock the judicial

conscience.

    Affirmed.




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