                                NOT FOR PUBLICATION WITHOUT THE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-4572-17T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JOSE M. LAPORTE,

     Defendant-Appellant.
_______________________

                   Submitted May 6, 2020 – Decided July 6, 2020

                   Before Judges Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Burlington County, Indictment No.
                   17-07-0746.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John Walter Douard, Assistant Deputy
                   Public defender, of counsel and on the briefs).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Jose Laporte appeals from a March 29, 2018 judgment of

conviction after a jury found him guilty of first-degree strict liability for drug-

induced death, N.J.S.A. 2C:35-9(a); third-degree possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession

of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3);

and third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-

5(b)(3). We affirm his conviction.

       Defendant raises the following issues on appeal:

             POINT I: EVEN WHEN VIEWED IN THE LIGHT
             MOST FAVORABLE TO THE STATE, THE
             EVIDENCE WAS INSUFFICIENT TO PROVE
             BEYOND A REASONABLE DOUBT THAT
             DEFENDANT SOLD THE DRUGS TO SUNG U ON
             THE DAY OF HIS DEATH.

             POINT II: THE [TWELVE] YEAR NERA [1]
             SENTENCE IS EXCESSIVE AND THE MATTER
             MUST BE REMANDED FOR RESENTENCING,
             BECAUSE THE JUDGE PLACED GREATER
             WEIGHT ON GENERAL DETERRENCE THAN
             OUR COURTS HAVE FOUND REASONABLE,
             AND FAILED TO FIND MITIGATING FACTOR
             N.J.S.A. 2C:44-1(b) (11).

       We glean the following facts from the trial record. Around 4:00 a.m. on

April 12, 2017, Detective Anthony Fontana and other officers from the


1
    No Early Release Act, N.J.S.A. 2C:43-7.2.
                                                                          A-4572-17T3
                                        2
Burlington Township Police Department responded to a report of a possible drug

overdose. Upon entering, Fontana observed the deceased victim, Sung U Han

(Sung U),2 in his bedroom.

      Sung U lived with his father Alexander Han (Alexander) in the apartment.

Sung Ho Han (Sung Ho), the victim's brother, testified that the family knew

about Sung U's substance abuse issues but thought he remained drug free in the

months prior to his death, as he looked healthier and appeared happier after

participating in a detox program.

      Sung Ho testified that on April 11, 2017, Sung U helped him move

furniture from approximately 10:00 a.m. to 6:00 p.m. The brothers then had

dinner with Alexander at Sung Ho's house until Sung U said he needed to go

home. Alexander returned to the apartment on his own, and Sung Ho drove his

brother there around 9:30 or 10:00 p.m.

      Alexander woke up in the early hours of the morning and noticed Sung

U's bedroom door open. Alexander noticed "something odd" and shook his son's

body, which was cold to the touch. Alexander called Sung Ho and they called




2
  We refer to the victim as Sung U, his brother Sung Ho Han as Sung Ho, and
his father Alexander Han as Alexander for ease of reference, intending no
disrespect to the family.
                                                                      A-4572-17T3
                                      3
911. They noticed a "tannish bloodish" fluid coming out of Sung U's mouth and

tried to administered CPR to no avail.

      Officer Matthew Kochis considered administering Narcan, but it was too

late. While in Sung U's bedroom, Kochis found two small wax pieces of paper

with a "GUCCI" stamp, a cell phone in close proximity to Sung U's body, a

hypodermic syringe filled with a substance suspected to be heroin, a lighter, and

a spoon on the floor.

      Fontana asked Alexander about the cell phone. Alexander explained it

was Sung U's phone, however, he paid the bill, and the phone was under his

name. Alexander gave consent for police to access and search the phone and an

inspection revealed Sung U's phone had text messages and calls to a telephone

number listed under the contact "Mainor." The text thread from that night

showed at 7:12 p.m., Mainor texted, "am here." Sung U called Mainor's phone

five times between 10:38 and 11:01 p.m.

      Fontana believed Mainor sold Sung U the heroin that killed him, and so

the following morning Fontana used Sung U's phone to contact Mainor in an

attempt to purchase heroin. Fontana messaged: "Bro, that shit was fire. You

around?" Mainor responded that he was not available but would be around after

2:00 p.m. After 2:00 p.m., Fontana messaged Mainor again to inquire if he or


                                                                        A-4572-17T3
                                         4
she was around, and Mainor responded: "Go to 24, dude there." Fontana,

however, did not know the location of "24" and asked Mainor to meet him near

Sung U's apartment. Mainor refused and insisted they meet at "24."

      Fontana continued to try to meet Mainor, under the guise that he was Sung

U, asking Mainor to meet him in a parking lot in front of the apartment. Finally,

Fontana and Mainor agreed to meet at a Chinese restaurant; however, Fontana

did not know the location of the store as there were three Chinese restaurants

near Sung U's apartment. Mainor conveyed he was on his way and messaged:

"Hurry up, I got people waiting."

      After failing to meet Mainor at the suggested location, Fontana stated that

he was at a meat market in Burlington Township and asked for Mainor's location.

Mainor responded:      "The same spot as last night."        After a series of

miscommunications, both Fontana and Mainor agreed to meet the following day.

However, Fontana opted not to initiate communication on that day, as the

resources to conduct a successful operation were not available.

      On April 14, 2017, via text message, Mainor and Fontana agreed to meet

at Lourdes Hospital so he could purchase two bundles of the "same stuff" and

Mainor responded "[o]kay." Around 11:20 a.m., Mainor and Fontana spoke on

the phone because they determined there was a miscommunication regarding the


                                                                        A-4572-17T3
                                       5
location of the meeting. Fontana and Mainor went to two different Lourdes

Hospitals; Mainor went to the hospital in Camden while Fontana went to the one

in Willingboro.

      Eventually, they agreed to meet at a Dunkin Donuts near the Lourdes

Hospital in Willingboro. The police positioned unmarked cars in the area.

Fontana and Mainor continued to exchange messages when Mainor explained

that he was in a Nissan. Fontana observed a silver Nissan pull into the Dunkin

Donuts parking lot at approximately 12:15 p.m. and noticed there were two

occupants in the car, a male driver and female passenger. The police officers

approached the Nissan and detained both the driver, later identified as defendant

Laporte, and the female passenger.

      The officers searched defendant and found thirty bags of heroin contained

in blue wax folds, packaged in two bundles, with "GUCCI" stamped in black.

The officers also searched the Nissan and retrieved three cell phones from the

driver's side door. Fontana described two of the phones as "burner" phones,

phones with very limited capabilities such as calling and texting, and the other

phone as a Samsung smartphone. Fontana testified that defendant claimed

ownership of two of the phones, the Samsung phone and one of the burner

phones, but did not claim the other burner phone whose number was linked to


                                                                        A-4572-17T3
                                       6
Mainor.    Extraction reports prepared by the prosecutor's office revealed

seventeen contacts from the phone linked to Mainor but did not include any text

messages or call logs. Sung U's phone number, however, was not one of the

contacts recovered from the phone.

      Detective Mark Carnivale, who participated in the operation, testified that

he had the opportunity to speak briefly with defendant as he was being processed

in the police station. Carnivale testified defendant was told he was being

charged with strict liability for the drug-induced death of Sung U, after which

defendant asked him "if his boy was really dead." In an interview two weeks

after his arrest, defendant told Fontana that a man named Angel Martinez, also

known as "Pika," was the "leader of the set," and "ran the block on 24."

      The Burlington County Medical Examiner's Office submitted samples of

both Sung U's peripheral blood and urine to NMS labs for testing. Sung U's

urine and peripheral blood tested positive for opiates and cannabinoids. The

Burlington County Forensic Laboratory (BCFL) also conducted tests on the

contents of the syringe and two glassine bags with a blue fold paper stamped

"GUCCI" recovered from Sung U's room. The laboratory performed two color

tests on the syringe contents, one indicating there may be an opioid present and

the other testing negative. Debera Scott, a chief forensic chemist at BCFL,


                                                                           A-4572-17T3
                                       7
explained the disparity between the first and second test could have resulted

from the fact that there may not have been enough of the substance there. Scott

testified the two glassine bags tested positive for opioids and explained further

testing identified the substance as pure heroin. The lab also tested fifteen of the

glassine bags recovered from defendant's person and found the substance was

also pure heroin.

      Burlington County's Chief Medical Examiner Dr. Ian Hood opined Sung

U suffered from a pulmonary edema, "a very characteristic finding in somebody

who has died acutely of an opiate reaction." Dr. Hood concluded, based on his

examination, that heroin was the cause of Sung U's death.

      Flor Garcia, defendant's former coworker, testified that on April 11, 2017,

he met with defendant at his home in Camden to talk about repairing a vehicle.

Garcia testified that from around 3:00 p.m. to 6:00 p.m. defendant was working

with him to repair the car. Garcia testified that around 6:00 p.m. they drove to

his house to hang out and drink beer and Garcia drove defendant back to his

home around 11:15 p.m. Garcia further testified he noticed that defendant had

only one touch screen phone on him at the time and the phone did not ring nor

did he see defendant utilize the phone during the time he was with him.




                                                                          A-4572-17T3
                                        8
      Defendant testified that on April 11, 2017, he was abusing heroin and that

his addiction started when he was prescribed Percocet to treat an injury he

sustained while landscaping. In exchange for "a bag or two" of heroin, he would

collect money for local drug dealers and would then take the collected money to

the owner, Angel Martinez. Defendant testified that Martinez did not sell any

drugs other than heroin, and that the heroin was marked with the "GUCCI"

stamp.

      According to defendant, he walked to his mother's house in Camden and

met with Garcia around 3:00 p.m. to discuss repairing a Jeep. Around 6:00 p.m.

he finished repairing the car and went to Garcia's home in Philadelphia "to drink

a couple beers." Garcia later drove him back to his home where he remained for

the rest of the night.

      Defendant also testified that in March 2017, Martinez gave him a Verizon

flip phone. He testified the phone was for Martinez to contact him as he did not

work with Martinez on a daily basis. Defendant further testified that he had only

his touch screen phone with him on April 11, 2017, but carried the Verizon flip

phone and his touch screen phone on both April 12 and 13. On April 14, the

day he was arrested, defendant asserted Martinez gave him a black Posh phone




                                                                         A-4572-17T3
                                       9
and told him that there was supposed to be someone coming by to grab the phone

and some drugs.

      Defendant testified that someone sent a text to the phone around 8:30 a.m.

to set up a drug transaction. He denied knowing the person who texted him, a

person listed in the phone as "Chino," and he never met someone with that name

before. Defendant decided to meet the person who wanted the drugs so that he

could keep some of the drugs for his personal use. He tied the heroin to his

boxers and traveled in a Nissan to the designated location. He testified that he

did not know who he was meeting at Lourdes, but when he arrived, he realized

that the person he was communicating with was Fontana.

      Defendant consumed heroin and smoked marijuana on the day of his arrest

and attributed his question, whether "his boy was really dead," to the fact that

he was high and did not "know what was going on." He denied selling drugs to

Sung U and stated that the transaction leading to his arrest was the first time he

tried to sell drugs.

      At the end of the State's case, defendant's lawyers asked the court to

dismiss the charge of first-degree strict liability for drug-induced death, N.J.S.A.

2C:35-9(a), which the judge denied utilizing the State v. Reyes, 50 N.J. 454,

458-59 (1967), standard.


                                                                           A-4572-17T3
                                        10
      The jury convicted defendant of all charges.          The court sentenced

defendant to an aggregate twelve-year prison term with an eighty-five percent

period of parole eligibility pursuant to NERA and five years of parole

supervision following his release.

      This appeal followed.
                                        I.

      Defendant argues the trial court erred in denying his Reyes motion

because the State failed to prove, beyond a reasonable doubt, that he provided

the fatal dose of heroin. Specifically, defendant argues the State did not: 1)

provide direct evidence that Sung U purchased heroin from defendant; 2) collect

DNA fingerprints from Sung U's room; 3) disprove defendant's alibi; 4)

investigate the possibility that Martinez sold the drugs to Sung U; and 5) produce

evidence showing that defendant possessed the phone used to communicate with

Sung U and Fontana on April 11, 2017.

      We use the same standard as the trial judge in reviewing a motion for

judgment of acquittal based on an insufficiency of the evidence. State v. Bunch,

180 N.J. 534, 548-49 (2004). We must determine

            whether, viewing the State's evidence in its entirety,
            be that evidence direct or circumstantial, and giving
            the State the benefit of all its favorable testimony as
            well as all of the favorable inferences which
            reasonably could be drawn therefrom, a reasonable

                                                                         A-4572-17T3
                                       11
            jury could find guilt of the charge beyond a reasonable
            doubt.

            [Reyes, 50 N.J. at 458-59.]

      Under Rule 3:18-1, we "[are] not concerned with the worth, nature or

extent (beyond a scintilla) of the evidence, but only with its existence, viewed

most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App.

Div. 1977). "If the evidence satisfies that standard, the motion must be denied."

State v. Spivey, 179 N.J. 229, 236 (2004).

      The evidence in the record, viewed in its entirety and giving the State all

favorable inferences therefrom, was more than sufficient to allow a reasonabl e

jury to warrant a conviction for strict liability for drug-induced death.

      N.J.S.A. 2C: 35-9(a) provides:

            Any person who manufactures, distributes or
            dispenses methamphetamine, lysergic acid
            diethylamide, phencyclidine or any other controlled
            dangerous substance classified in Schedules I or II, or
            any controlled substance analog thereof, in violation
            of subsection a of N.J.S.[A.] 2C:35-5, is strictly liable
            for a death which results from the injection, inhalation
            or ingestion of that substance and is guilty of a crime
            of the first degree.

      Addressing defendant's motion for judgment of acquittal, the trial judge

noted the proof surrounding defendant's heroin distribution was circumstantial

but denied the motion because the testimony Sung U died of a heroin overdose,

                                                                            A-4572-17T3
                                       12
paired with evidence such as the "GUCCI" stamped wax papers, as well as the

references to text messages where Fontana asked for the "same as last time,"

provided a sufficient link for a jury to find guilt.

      Defendant was found with two bundles of heroin stamped "GUCCI"

similar to the glassine bags found in Sung U's room. He was in possession of

the phone that was used to communicate and conduct drug transactions with

both Sung U and Fontana, operating under the guise that he was Sung U.

Defendant's assertion that he did not receive the phone used to conduct the

transactions until April 14 and he did not know Sung U or attempt to sell him

drugs was eroded by the text messages between defendant and Fontana which

referenced prior sales between defendant and Sung U.

      Based on the circumstantial evidence presented, a reasonable jury had a

substantial basis to conclude beyond a reasonable doubt that the drug s that led

to Sung U's death were purchased from defendant.

                                         II.

      Defendant asserts the trial court's decision to sentence him to a term

above the statutory minimum was arbitrary and capricious as the court placed

undue weight on aggravating factor N.J.S.A. 2C:44-1(a)(9), despite the court's

findings regarding mitigation.


                                                                         A-4572-17T3
                                        13
      We reject defendant's excessive sentencing argument. The trial court

sentenced defendant to an aggregate term of twelve years, subject to NERA.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J.

334, 363-64 (1984). When reviewing a judge's sentencing decision, we "may

not substitute [our] judgment for that of the trial court. . . ." State v. Johnson,

118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)).

However, we may review and modify a sentence when the judge's

determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990)

(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). A trial judge is given

"wide discretion" to impose a sentence provided it is within the statutory

framework, and we must give that decision "great deference." State v. Dalziel,

182 N.J. 494, 500-01 (2005). However, in determining the propriety of a

sentence, we must make sure the sentencing guidelines have been met, the

findings on aggravating and mitigating factors are based upon "competent

credible evidence in the record," and the sentence is not "clearly unreasonable

so as to shock the judicial conscience." Id. at 501 (quoting Roth, 95 N.J. at

364-65).




                                                                            A-4572-17T3
                                        14
      The "dominant, if not paramount, goal" of N.J.S.A. 2C:44-1's

aggravating and mitigating factors is "uniformity in sentencing." State v.

Lawless, 214 N.J. 594, 607 (2013) (quoting State v. Kromphold, 162 N.J. 345,

352 (2000)). To promote this goal, sentencing courts must "state . . . the

factual basis supporting a finding of particular aggravating or mitigating

factors," R. 3:21-4(g), and must "describe the balancing process leading to the

sentence," State v. Kruse, 105 N.J. 354, 359-60 (1987). "A careful statement

of reasons also facilitates appellate review." State v. Fuentes, 217 N.J. 57, 74

(2014).

      Based on our review of the judge's stated reasons, we discern no abuse

of the court's discretion.

      Affirmed.




                                                                         A-4572-17T3
                                      15
