                                NOT FOR PUBLICATION WITHOUT THE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-3492-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSHUA L. RODRIGUEZ, a/k/a
MARQUELL RODRIQUEZ,

          Defendant-Appellant.


                   Submitted November 14, 2019 – Decided January 29, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 15-04-
                   0290.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michael James Confusione, Designated
                   Counsel, on the brief).

                   Charles A. Fiore, Gloucester County Prosecutor,
                   attorney for respondent (Jonathan E. W. Grekstas,
                   Assistant Prosecutor, on the brief).

PER CURIAM
      A jury found defendant Joshua L. Rodriguez guilty of first-degree strict

liability for drug-induced death, N.J.S.A. 2C:35-9. On April 21, 2017, the trial

judge sentenced him to eighteen years subject to the No Early Release Act's

(NERA) mandatory service of eighty-five percent of the term of imprisonment.

N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.

      We draw the facts from the trial record. On October 31, 2014, the victim

D.C.1 was discovered unconscious in his bedroom by his father. D.C.'s father

called 911.   Beneath the victim's body, emergency personnel and police

observed a syringe and torn open blue wax folds stamped "Twitter." The items

were not collected because the authorities initially responded to the incident as

a medical emergency—the victim died, however, on the way to the hospital.

      When police returned a few days later, they searched the victim's bedroom

and seized a prescription pill container, hypodermic syringe, three opened blue

wax empty heroin folds marked "Twitter," and a bundle of similar folds

containing heroin.    The victim's phone contained several text messages

regarding drug buys from a person initially identified as "Mikey Engate."




1
  Initials are being used to protect the privacy of the victim's family. See R.
1:1-2.
                                                                         A-3492-17T2
                                       2
        Woolwich Township Police Department Detective Christopher Beckett

testified that after collecting the evidence and photographing the relevant text

messages, he contacted a friend of the victim, Cody Hassler. The victim's text

messages established he had arranged for Hassler to drive him to Camden to

purchase heroin on the evening of his death. Hassler described Engate to police,

including the fact he had a barcode tattoo on the back of his neck. Beckett

matched Hassler's description of Engate with defendant, and matched the

victim's cell phone calls to defendant's phone. On the stand, Hassler denied

telling Beckett that defendant also had a tattoo on his right hand.

        A Gloucester County Prosecutor's Office Detective, Anthony Gabarino,

who was not involved in the investigation, showed Hassler a photo array that

included defendant's picture.     Hassler identified Engate's photo, and then

explained that Engate was a drug dealer from Camden. On the night the victim

died, Hassler drove D.C. to purchase drugs in North Camden, and in exchange

the victim gave him six bags of heroin. The victim bought three bundles of the

drug.

        When shown the array, Hassler selected defendant's photo and was 100%

certain he had identified the dealer from Camden from whom the victim had

bought drugs. Because Hassler and the detective did not agree as to whether


                                                                        A-3492-17T2
                                        3
defendant's photograph was numbered seven or eight, Hassler asked to see it

again, and the detective showed it to him. On the recording of the out-of-court

identification process, the detective acknowledged that Hassler correctly

recalled the number on the photograph, but that he, the detective, got it wrong.

      Hassler explained to the detective that he injected the six bags he was

given. The victim shot up three bags, but became ill. Hassler kept him awake

and another friend got him some food, after which D.C. seemed to recover.

Hassler added that all the bags that were purchased that night were stamped

"Twitter." Since D.C. seemed to be feeling alright, Hassler and the other two

people with him dropped the victim off at a liquor store within walking distance

of his home.

      During her opening statement, defendant's attorney argued to the jury that

the phone number identified as belonging to the dealer from whom the victim

bought the heroin that night could not have been defendant because he was in

jail that night. Furthermore, she claimed his cell phone was a "burner phone,"

and that "it is common for one burner cell phone to be used by more than one

person [in the drug trade]." Therefore, she argued the message sent to the victim

from the phone could not be from defendant.




                                                                         A-3492-17T2
                                       4
         The medical examiner testified D.C.'s death was accidental, attributable

to his consumption of heroin. His opinion, to a reasonable degree of medical

certainty, was based on tests conducted on blood and urine samples taken from

the body. He explained that the term "overdose" was not accurate—there is no

such thing as a safe level of heroin or cocaine—rather, consumption makes it a

drug-induced death, or makes death an adverse effect of the drug.

         The State also called a toxicologist who testified regarding metabolites of

heroin found in the victim's blood and urine. Traces of suboxone were found in

D.C.'s urine, but they were waste products not evidential as to toxicity. When

drugs are found in urine, the body has already processed the substances and was

disposing of it. The toxicologist considered the suboxone not to be evidential

as to lethality, toxicity, or impairment because none was found in D.C.'s blood.

         A different judge from the judge who tried the case began a pretrial

hearing on the out-of-court identification. He stopped the hearing, however,

when defense counsel's main objection seemed to be that she was not given the

actual video of the display of the photo array, although she had the transcripts

and the photographs in her possession. Counsel unsuccessfully argued that the

procedure was suggestive because the detective showed Hassler the photographs

twice.


                                                                            A-3492-17T2
                                          5
      The judge found further proceedings were unnecessary because Hassler's

identification of defendant was unequivocal, based on prior contacts. The judge

further found that the out-of-court identification was properly recorded, and the

witness correctly instructed as to the procedure he was to follow. As the judge

said, the proofs could not be clearer. The State would be permitted to present

the out-of-court identification to the jury.

      At the close of the State's case, defendant moved for acquittal contending

no reasonable juror would connect the heroin found in the victim's system with

that in the blue wax folds that Hassler claimed the victim bought from defendant.

Defendant claimed that the State's proof left a reasonable doubt that the heroin

from which the victim had died could have come from another source , because

the empty bags found near his body were not seized. Furthermore, the medical

examiner did not perform an autopsy and so could not rule out causes of death

such as heart disease, strokes, or blood clots, and had no information about

D.C.'s past medical or psychiatric history.     Defense counsel said that the

presence of suboxone raised the possibility that it was the suboxone, not the

heroin, that caused the death. Finally, counsel attacked Hassler's credibility,

stating that the discrepancies between different statements he made to police

cast doubt on his credibility.


                                                                         A-3492-17T2
                                         6
      Giving the State all reasonable inferences, and leaving the issue of

credibility to the trier of fact, the judge found a reasonable jury could reasonably

infer that the heroin found in the victim's body came from the bundle he

purchased from defendant, while accompanied by Hassler, shortly before his

death. It was reasonable for a jury to conclude that the drugs sold to him caused

his death.

      At sentencing, the judge found aggravating factors three, five, six, and

nine. N.J.S.A. 2C:44-1(a)(3), (5), (6), (9). She accorded them moderate weight

except for factor nine. She gave factor nine greater weight because of the real

potential of death from drug use, and society's interest in stopping drug

distribution.     The judge found factors five, eight, and nine in mitigation,

although she gave all but five slight weight, and to five she gave moderate

weight. She denied the State's motion for a discretionary extended term. See

N.J.S.A. 2C:43-7; see also N.J.S.A. 2C:43-6(f). Thus, balancing defendant's

two prior drug-related convictions and considering his involvement in the drug

distribution world, the judge imposed an eighteen-year NERA sentence.

      On appeal, defendant raises the following points for our consideration:

                Point 1   The trial court erred in denying defendant's
                          motion for acquittal of the drug-induced
                          death charge.


                                                                            A-3492-17T2
                                         7
             Point 2     The trial court erred in failing to hold a
                         complete Wade[2] hearing and apply
                         governing law on the admissibility of the
                         out-of-court    identification    of   the
                         defendant.

             Point 3     Reference to defendant having been "in jail
                         before" caused an unfair trial for defendant
                         below.

             Point 4     The trial court erred in denying a mistrial
                         after a discovery problem caused by the
                         prosecution.

             Point 5     Defendant's sentence is improper and
                         excessive.

                                         I.

       Defendant's first point is that the trial judge erred in denying his motion

for acquittal. We review the decision employing the same standard as the trial

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

N.J. Super. 148, 153 (App. Div. 1990)). After giving the State the benefit of all

favorable testimony and all favorable inferences that could be reasonably drawn

therefrom, we decide whether the evidence viewed in its entirety suffices for the

jury to find guilt beyond a reasonable doubt. Id. at 590-91.




2
    U.S. v. Wade, 388 U.S. 218 (1967).
                                                                          A-3492-17T2
                                         8
      Strict liability for drug-induced death requires the State to prove beyond

a reasonable doubt that the drug which led to the victim's death was taken from

the packets sold to him by defendant. The State established that element of the

offense.

      An officer who first arrived at the scene and an emergency technician

(EMT) saw a syringe on the ground near the victim. The EMT saw both a

syringe and empty blue wax folds. These packets had the same appearance as

the packets from the bundle stamped "Twitter" later found in D.C.'s bureau.

      Hassler testified that the bundles D.C. purchased from defendant consisted

of blue wax folds stamped "Twitter." The jury heard Hassler tell Gabarino

during the recorded interview that the blue wax folds D.C. bought from

defendant were similar in appearance. A reasonable jury had a substantial basis

to conclude beyond a reasonable doubt that the drugs which ultimately led to the

victim's death were purchased from defendant. Thus defendant's motion for

acquittal was properly denied.

                                      II.

      Defendant contends on appeal that the medical examiner's testimony did

not prove that heroin consumption killed D.C. This point also lacks merit. The




                                                                        A-3492-17T2
                                       9
medical examiner stated that D.C. died as a result of his consumption of heroin,

and that the suboxone found in his urine was not the cause of death.

      The toxicologist agreed—suboxone was found in decedent's urine, not his

blood, and in amounts that did not give rise to an inference of "lethality, toxicity,

or impairment." Thus, the State presented ample medical proof that D.C.'s

heroin consumption caused his death, and although defendant attacks the expert

opinions as without merit, no expert testimony was offered to refute them.

Nothing inherently makes the testimony of the two different experts, giving

essentially the same opinion, illogical or incredible.

                                        III.

      Defendant also contends that Hassler's identification of defendant did not

prove he was the seller beyond a reasonable doubt. Defendant attacks Hassler's

testimony on the basis that the details he gave were at times inconsistent. For

example, the police report stated Hassler described defendant as having a tattoo

on his right hand, when he did not. On the stand, Hassler denied saying that. It

is not, however, a detail of such consequence as to make it error for a reasonable

jury to find guilt.

      Hassler's identification during the photo array was unequivocal. He had

known defendant for some time and knew him as a drug dealer.                 Hassler


                                                                             A-3492-17T2
                                        10
described not only defendant's general appearance but also the tattoo on the back

of his neck. Hassler identified defendant in court. Therefore, the court properly

denied the motion for acquittal based on alleged shortcomings in Hassler's

identification.

                                     IV.

      Defendant urges us to find that the court erred by not completing the Wade

hearing. But defense counsel was unable to identify even one factor establishing

any suggestiveness in the identification procedure. And to be entitled to a Wade

hearing, a defendant must first proffer "some evidence of suggestiveness" that

could result in a misidentification. State v. Henderson, 208 N.J. 208, 238, 288

(2011). No such evidence was presented, thus the identification would be

admissible at trial. See State v. Micelli, 215 N.J. 284, 293 (2013) ("If a judge

finds that the identification was not impermissibly suggestive, then the evidence

may be admitted at trial.").

      When Hassler and Gabarino disagreed about the number on the photo

Hassler identified, that required the witness to be shown defendant's picture

again. Hassler was shown defendant's picture twice, a seeming impropriety, but

the reason the detective did so was his disagreement about the number on the

back of the photo. The officer merely wanted confirmation that he had entered


                                                                         A-3492-17T2
                                      11
the correct number into his notes.     It was Hassler who initially identified

defendant from his photo; it was Hassler who remembered the correct number.

The record supports Hassler's identification as reliable. Nothing in the record

supports the suggestion that Hassler himself could have been the seller of the

lethal drug. The Wade hearing went far enough.

                                       V.

      Beckett testified that after Hassler described defendant, Beckett pursued

the tip via a contact at the Camden County Police Department. Beckett further

testified that someone from Camden County identified defendant as a potential

suspect based on the description. At that point, the court immediately told the

jury to totally disregard any reference to defendant having been previously

jailed, and that the information could not be included during jury deliberations.

      The judge's prompt curative instruction, striking the testimony from the

record, adequately addressed any potential prejudice. We assume that jurors

will follow instructions, and thus do not find any reference to defendant having

been in jail, or references that the jury might have construed as meaning that

defendant had been in jail, to be harmful. State v. Farmer, 366 N.J. Super. 307,

319 (App. Div. 2004) ("The jury is presumed to adhere to instructions , and we

must assume the jury followed that mandate."). When the point was raised by a


                                                                         A-3492-17T2
                                      12
witness, the judge promptly told the jury not to consider that factor. Thus there

is no basis for reversal on this issue.

                                          VI.

      Defendant also argues that the trial court erred in denying the motion for

a mistrial because of a discovery problem caused by the prosecution. In her

opening statement, counsel argued that defendant could not have been the dealer

with whom the victim was communicating because he was in jail at the time.

The prosecution had provided defense counsel with an extraction report of text

messages in which the date designation was in Greenwich Mean Time, meaning

the day was listed first, the month next, and the year last. As a result of the

manner in which the dates of the text messages were listed on the report, counsel

mistakenly thought the message regarding defendant selling drugs to the victim

was dated April 11, 2014, as opposed to October 31, 2014. In discovery, the

prosecution also informed defendant that the cell phone extraction had not

resulted in information having evidential value.

      After hearing the opening statement, the prosecution explained to counsel

that she misunderstood the cell phone extraction record report. The prosecutor

also clarified there were saved messages exchanged on the relevant date between

D.C. and defendant. As a result, defendant moved for a mistrial.


                                                                         A-3492-17T2
                                           13
      The first date listed on the extraction report gives the date as

"15/12/2014." This indicates a European date format and was corroborated by

the investigator's corresponding written report stating the extraction was

performed on December 15, 2014. The material was in counsel's hands some

six months before trial.

      That the State represented there was no material having evidentiary value

in the cell phone extraction report is not a failure to fulfill a discovery obligation.

The issue here is not that the reports were withheld, but rather, that the State's

summary was wrong—that is not a discovery violation.

      Even if counsel had relied on the report, as opposed to the original

material, counsel's argument to the jury that the phone was a burner phone that

could have been used by anyone who was a street level drug distributor, not

necessarily defendant, was unaffected by the extraction report.              The text

messages between defendant and D.C. from defendant's phone were never

recovered. This argument has no merit.

                                         VII.

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

standard asking whether: "(1) the sentencing guidelines were violated; (2) the

aggravating and mitigating factors found by the sentencing court were not based


                                                                               A-3492-17T2
                                         14
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.'" State v. Fuentes, 217 N.J. 57, 70 (2014)

(alterations in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      The judge did not violate the sentencing guidelines. The aggravating and

mitigating factors were supported by credible and competent evidence in the

record, and the judge did not err in the weight she accorded to those

considerations. We do not agree with defendant that the judge should have

further explained her rejection of mitigating factors two and thirteen. It does

not follow logically, as defendant suggests it, that a strict liability crime must

result in the judicial finding that a defendant did not contemplate that his or her

conduct would cause harm. Every drug dealer knows the harm drugs cause and

the potential for the greatest harm of all. Defendant was not a youthful offender

substantially influenced by a more mature person—nothing supports this claim.

      The judge exercised her discretion by not granting the State's motion to

sentence defendant to an extended term. In light of the weight she accorded the

aggravating factors, and the lesser weight of the mitigating factors that she

found, a sentence on the higher end of the ordinary range does not shock the

judicial conscience. Roth, 95 N.J. at 364-65.


                                                                           A-3492-17T2
                                       15
Affirmed.




                 A-3492-17T2
            16
