                        NOT FOR PUBLICATION WITHOUT THE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-5185-14T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH TORRES,

        Defendant-Appellant.

__________________________________________

              Submitted February 9, 2017 – Decided July 6, 2017

              Before Judges Lihotz and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 11-06-0538.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Frank M. Gennaro, Designated
              Counsel, on the brief).

              Jennifer Webb-McRae, Cumberland County
              Prosecutor, attorney for respondent
              (Danielle R. Pennino, Assistant Prosecutor,
              of counsel and on the brief).

PER CURIAM

        Defendant Kenneth Torres appeals from a December 19, 2014

judgment of conviction, entered after a jury trial.                 The jury
found defendant guilty of fourth-degree possession of marijuana,

N.J.S.A. 2C:35-10(a)(3), but acquitted him of second-degree

possession of marijuana with intent to distribute, N.J.S.A.

2C:35-5(b)(10)(b).   The court sentenced defendant to three years

of probation.

    After reviewing the record and applicable legal principals,

we affirm.

                                  I

    The relevant evidence adduced at trial was as follows.       Co-

defendant Daniel Rivera rented one of the three bedrooms in his

apartment to defendant.    Although defendant always kept his

bedroom locked, Rivera did have a key.

    In October 2010, the police were authorized to and did

search the apartment.     The police found marijuana in four small

Ziploc bags in a shoe in defendant's bedroom; in the aggregate,

the amount of marijuana found in the shoe weighed less than a

pound.   Also discovered in defendant's room was a Ziploc bag

containing marijuana; the amount of marijuana in this bag was

not clear.   In addition, $2000 in cash inside of a light bulb

fixture and $2248 in cash in a safe were found.

    The police also located marijuana bundled in trash or

Ziplock bags in the other rooms of the apartment.    The quantity

discovered outside of defendant's bedroom indicated such
                                2
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marijuana was for distribution.    Varying amounts of cash were

also found.   The State's expert in narcotics testified a person

who uses marijuana for personal consumption generally does not

possess more than five pounds at any one time.     If one possesses

more than six pounds of marijuana, likely such marijuana is for

distribution.

    During his testimony, defendant admitted the marijuana in

the shoe belonged to him and was for his personal consumption.

Other than the marijuana found in the shoe, defendant disavowed

knowledge or ownership of the marijuana found in his bedroom or

elsewhere in the apartment.    Defendant admitted the $2246 in

cash found in his safe belonged to him, but asserted the cash

were tips he earned as a barber.    He claimed he did not know of

the cash stored in the light bulb fixture.    Defendant also

mentioned he spent little time in the apartment, preferring to

spend his free time with his girlfriend.     As referenced above,

defendant was acquitted of possession of marijuana with intent

to distribute, but convicted of possession of this drug.

    Before the trial, defendant filed a motion for leave to

introduce evidence Rivera sold Ecstasy to an informant in two

separate controlled buys.     Defendant's purpose was to show

Rivera was engaging in drug-dealing and, thus, it was more

likely the large amounts of marijuana found in the apartment
                                3
                                                           A-5185-14T4
belonged to Rivera and were earmarked for distribution.

Sensitive to the fact such evidence would prejudice Rivera,

defendant sought to be tried separately.

    The court denied the motion to admit the evidence and sever

the trials, finding the proffered evidence irrelevant and its

probative value substantially outweighed by the risk of

confusing the issues or misleading the jury, see N.J.R.E. 403.

The court stated:

         [T]he mere fact that one party may have sold
         ecstasy does not mean that they were, at any
         time, selling or distributing marijuana.
         And, it's that broad brush problem that 403
         is talking about, is tending to confuse the
         issue.

         The issue on trial – while there is a
         possession of ecstasy charge, there's no
         distribution of ecstasy charge. Therefore,
         it's not even relevant. The distribution of
         ecstasy does not tend to prove the
         distribution of marijuana.

         So, I don't see it being admissible in
         either case, whether it's severed or whether
         it's not severed. Because, it will tend to
         confuse the jury and mislead the jury away
         from the real issue. Who was in possession
         of marijuana and who was distributing the
         marijuana. . . .

         And, I think this is capable of misleading
         the jury, or leading the jury away from the
         central issue that they have to determine,
         which is the possession and the possession
         with intent to distribute marijuana.


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    Turning to another issue pertinent to this appeal, when he

exhausted his preemptory challenges during jury selection, the

court declined defendant's request to excuse for cause those

prospective jurors who were or had family members in law

enforcement.   At the time defendant made this request, eight of

the jurors seated in the box were connected to law enforcement.

Specifically, two of the jurors were working as corrections

officers; two had family members working as corrections

officers; one was a retired corrections officer; one was a "RICO

specialist" for the county jail; one had a brother-in-law

working as a state trooper in Vermont; and one had family

members working in various prisons in the county.

    Before they were seated, each of these jurors had been

vetted by responding to the jury selection questionnaire for

criminal trials.   See Administrative Office of the Courts

Directive # 4-07 (May 16, 2007).    Each of the eight subject

jurors was specifically asked if his or her connection to law

enforcement would affect his or her ability to be fair and

impartial; each replied in the negative.   There were other

jurors connected to law enforcement who were similarly vetted;

those who stated they could not be impartial were removed for

cause.


                                5
                                                           A-5185-14T4
    Relevant to another issue on appeal, before any witnesses

were called, the court ordered there be no mention of the police

having engaged in a surveillance of the apartment before it was

searched, conducted controlled buys of drugs from Rivera, or

secured a search warrant of the apartment.    Notwithstanding this

order, during the cross-examination of a detective called by the

State, the following exchange occurred:

            DEFENDANT'S COUNSEL: [D]uring the week of
            September 19, 2010, how did you assist
            [Officer Shaw] in observing [the defendants'
            residence]?

            DETECTIVE: I assisted [Shaw] by observing
            [the residence] and the informant . . . the
            target, rather[,] do a controlled buy.

    Because the detective made reference to one of the

controlled buys, both defense attorneys immediately requested a

mistrial.    Defendant also argued the jury might speculate he was

the target the detective referenced, unduly prejudicing him.

Defendant further pointed out because of the court's earlier

ruling, he was precluded from introducing evidence it was the

co-defendant who was in fact the target, the person from whom

the police purchased drugs as part of a controlled buy.

    The court denied defendants' motions for mistrial,

determining instead a curative instruction would suffice.     That

instruction stated in pertinent part:

                                 6
                                                           A-5185-14T4
         [T]he last witness who was testifying
         mentioned some things or some elements that
         are not part of this case. It doesn't
         involve these defendants. It shouldn't be
         considered by you in any way.

         There was a reference to a controlled buy.
         There was no controlled – there were no
         controlled buys in this case. There [are]
         no charges against any of these defendants
         with regard to any direct sales of anything,
         whether it be a controlled substance or
         whether it be anything.

         And you're not to consider the fact that the
         officer testified that he had observed a
         controlled buy. He did not identify any
         particular individual and it's not these
         individuals.

    Later in his testimony the detective volunteered he wrote

his police report on the same day as the search warrant.

Defendant asked for a mistrial, but the court declined, noting

the witness's mention of the search warrant was merely a

"passing reference."

                               II

    On appeal, defendant raises the following arguments for our

consideration:

         POINT I – THE TRIAL COURT'S DENIAL OF
         DEFENDANT'S MOTION TO PERMIT THE ADMISSION
         OF EVIDENCE OF THE CONTROLLED BUYS WHICH
         CONSTITUTED THE PROBABLE [CAUSE] FOR THE
         SEARCH WARRANT WAS ERROR WHICH DENIED
         DEFENDANT A FAIR TRIAL.

         POINT II – THE TRIAL COURT'S REFUSAL TO
         EXCUSE PROSPECTIVE JURORS WHO WERE PART OF
                               7
                                                           A-5185-14T4
           THE LAW ENFORCEMENT COMMUNITY DENIED
           DEFENDANT A FAIR TRIAL.

           POINT III – THE TRIAL COURT'S DENIAL OF
           DEFENDANT'S MOTION FOR A MISTRIAL WAS ERROR
           WHICH DENIED DEFENDANT A FAIR TRIAL.

We are unpersuaded by any of these arguments and affirm.

    We find it unnecessary to engage in a detailed legal

analysis of the substantive flaws underlying each argument.

Even if the court erred in the manner defendant asserts, none of

the errors had any effect upon the outcome here; every alleged

error was blatantly harmless.

    Under the "harmless error" rule, "[a]ny error or omission

shall be disregarded by the appellate court unless it is of such

a nature as to have been clearly capable of producing an unjust

result."   R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

This rule recognizes that not every error possibly resulting in

an injustice requires reversal.       Rather, "[t]he possibility must

be real, one sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might

not have reached."   Macon, supra, 57 N.J. at 336.

    Here, defendant admitted at trial he was the owner of the

marijuana found in the shoe in his room.      According to the

State's expert on narcotics and drug distribution, the quantity

found in the shoe was insufficient to be deemed held for

                                  8
                                                             A-5185-14T4
distribution.   The amount of marijuana in the shoe was for

personal consumption only.

    Consistent with defendant's admission and the expert's

testimony, defendant was convicted of possession of marijuana.

However, he was acquitted of the more serious charge of

possession of marijuana with the intent to distribute.    Plainly,

the jury credited defendant's testimony, accepting he had

nothing to do with any of the marijuana found in the apartment

but for that found in his shoe.

    Defendant sought to introduce evidence showing defendant

was the target of the controlled buys in order to prove Rivera

was a drug dealer.   However, even if such evidence had been

admitted, the outcome would have been the same.   Although we

fail to see how such evidence would have exculpated defendant

from the distribution charge, as this evidence would not have

established defendant was not selling drugs, the larger point is

defendant was not convicted of possession of marijuana with

intent to distribute.

    The detective's references to a "target," a controlled buy,

and the search warrant during his testimony were similarly

harmless.   At best, those references related to the distribution

charge and not to the charge for mere possession, a charge

defendant candidly admitted was true.
                                9
                                                          A-5185-14T4
    We do not take lightly defendant's complaint the court

declined to remove for cause those jurors who either were or had

family members in law enforcement.   While not necessarily

mandating a reversal, we do recognize "prudence counsels that a

court, on request of a defendant in a criminal case, should be

inclined to excuse a member of the law-enforcement community."

State v. Reynolds, 124 N.J. 559, 566 (1991).   However, under

these factual circumstances, where the jury acquitted defendant

of the charge for which he protested his innocence and convicted

him of the one for which he admitted his guilt, we cannot say

this error, or any of the other errors about which defendant

complains, "led the jury to a result it otherwise might not have

reached."   Macon, supra, 57 N.J. at 336.

    Affirmed.




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