                              NOT FOR PUBLICATION WITHOUT THE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-3159-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE LOZADA-ROJAS,

     Defendant-Appellant.
____________________________

                  Submitted June 19, 2018 – Decided September 10, 2018

                  Before Judges Simonelli and Koblitz.

                  On appeal from Superior Court of New Jersey, Law
                  Division, Somerset County, Indictment No. 15-08-
                  0410.

                  Joseph E. Krakora, Public Defender, attorney for
                  appellant (Alyssa Aiello, Assistant Deputy Public
                  Defender, of counsel and on the brief).

                  Michael H. Robertson, Somerset County Prosecutor,
                  attorney for respondent (Paul H. Heinzel, Assistant
                  Prosecutor, of counsel and on the brief).
PER CURIAM

      Following a jury trial, defendant Jose Lozada-Rojas was convicted of

second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-

5(a)(1) and N.J.S.A. 2C:35-5(b)(2). The charge stemmed from defendant's sale

of 66.435 grams, or 2.3 ounces of cocaine to undercover Detective Michael

Guerra of the Somerset County Prosecutor's Office, who was a member of the

Organized Crime and Narcotics Task Force and engaged in an undercover

narcotics investigation in Franklin Township along with Detective John Dugan.

The trial court imposed a seven-year term of imprisonment.

      On appeal, defendant raises the following contentions:

        POINT I

            REVERSAL IS REQUIRED, BECAUSE IN THIS
            CASE, WHERE CREDIBILITY WAS THE
            CRITICAL ISSUE, THE PROSECUTOR, IN
            VIOLATION OF DEFENDANT'S RIGHTS TO DUE
            PROCESS AND A FAIR TRIAL, IMPROPERLY
            VOUCHED FOR THE CREDIBILITY OF THE
            DETECTIVES, IMPROPERLY BOLSTERED THE
            DETECTIVES' TESTIMONY, AND IMPROPERLY
            CAST ASPERSIONS ON DEFENSE COUNSEL. (Not
            Raised Below).

        POINT II

            THE MATTER MUST BE REMANDED FOR
            RESENTENCING BECAUSE THE NEED TO DETER
            WAS NOT AN ADEQUATE BASIS FOR

                                                                       A-3159-16T3
                                      2
            IMPOSITION OF A SEVEN-YEAR PRISON TERM,
            WHERE DEFENDANT HAD ONLY ONE PRIOR
            ARREST, FOR DISORDERLY CONDUCT, AND
            BECAUSE THE JUDGE FAILED TO FIND A
            MITIGATING FACTOR FOR WHICH THERE WAS
            RECORD SUPPORT.

We reject these contentions and affirm.

                                       I.

      Guerra and Dugan testified at the trial. On summation, defense counsel

attacked their credibility by repeatedly referencing their investigative reports

and highlighting that Guerra's report was only three paragraphs long and did not

include specifics. Counsel accused the detectives of conducting an investigation

"from a shadowy organization[.]" Counsel then mentioned his seventeen years

of experience, and stated: "I really enjoy doing this. And part of the reason why

I enjoy doing this is because I do try to seek the truth." Counsel then told the

jury that "I wouldn't find [Guerra] credible, and I hope that you folks see the

same thing that I've been watching. He didn't seem credible to me."

      The prosecutor responded in her summation by reminding the jury that the

court would instruct them as to what they could consider as evidence. She also

noted that the investigative reports were not evidence, were used only to refresh

the detectives' recollection, and did not recite every single detail of the



                                                                         A-3159-16T3
                                       3
investigation.   The prosecutor then addressed defense counsel's complaints

about the brevity of the reports, explaining:

            And that is the evidence in this case; the testimony that
            you heard from two credible officers on the stand in this
            courtroom today.

                   Counsel would like you to be so distracted by
            police reports that are what, too short? Police reports
            that fail to detail the exact time that this occurred? He'd
            like you to be so distracted by that, because he doesn't
            want us to look at the very, very simple, very
            straightforward facts of this case.

                  Short police reports? Let's face it, this is a short
            investigation. And why? Detective Guerra said he
            made arrangements to meet with the [d]efendant at this
            location. He'd never met that man before. That
            arrangement, the [d]efendant got in the car, they
            negotiated a quantity, they negotiated a price, and drugs
            and money exchanged hands. The [d]efendant handed
            Detective Guerra 66 grams, 2.3 ounces of cocaine, and
            Detective Guerra handed him the money.

                   That's the investigation. Those are the facts. Do
            you need a ten-page police report for that? But he'll try
            to distract you with that, because he doesn't want you
            to look at those very simple facts.

                    Yes, I am expecting you to believe the officer[s']
            testimony. You, as the jury, are to determine the
            credibility of the witnesses. And amongst the laundry
            list of things the [j]udge will tell you you are to consider
            is whether the witnesses testified with intent to deceive
            you.



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                                         4
                     Why would Detective Guerra want to deceive
               you? The [d]efendant got in his car and sold him drugs.
               Why would Detective Guerra lie as to the details of
               what happened that day?

                                         II.

      In Point I, defendant argues for the first time on appeal that the prosecutor

improperly denigrated defense counsel, vouched for Guerra's and Dugan's

credibility, and bolstered their testimony by suggesting there was additional

evidence of defendant's guilt to which the jury was not privy. This argument

lacks merit.

      "When a defendant fails to object to an error or raise an issue before the

trial court, we review for plain error.        We may reverse on the basis of

unchallenged error only if the error was 'clearly capable of producing an unjust

result.'" State v. Ross, 229 N.J. 389, 407 (2017) (citation omitted) (quoting R.

2:10-2). "The possibility of an unjust result must be 'sufficient to 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. Williams, 168 N.J. 323, 336 (2001)).

"A defendant who does not raise an issue before a trial court bears the burden of

establishing that the trial court's actions constituted plain error." Ibid. "A

defendant assumes this burden because 'to rerun a trial when the error could

easily have been cured on request, would reward the litigant who suffers an error

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                                         5
for tactical advantage either in the trial or on appeal.'" Ibid. (quoting State v.

Weston, 222 N.J. 277, 294-95 (2015)). Applying the above standards, we

discern no error in the prosecutor's comments warranting reversal of defendant's

conviction.

      "A prosecutor may argue that a witness is credible, so long as the

prosecutor does not personally vouch for the witness or refer to matters outside

the record as support for the witness's credibility." State v. Walden, 370 N.J.

Super. 549, 560 (App. Div. 2004). "A prosecutor may not express a personal

belief or opinion as to the truthfulness of his or her witness's testimony." State

v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993).           Furthermore, a

prosecutor's comments may be harmless if they are only a response to remarks

by opposing counsel. State v. DiPaglia, 64 N.J. 288, 297 (1974).

      "[P]rosecutors are prohibited from casting unjustified aspersions on the

defense or defense counsel." State v. Wakefield, 190 N.J. 397, 446 (2007)

(alteration in original) (quoting State v. Nelson, 173 N.J. 417, 461 (2002)).

"[T]he issue for resolution is two-fold: whether the prosecutor committed

misconduct, and, if so, 'whether the prosecutor's conduct constitutes grounds for

a new trial.'" Ibid. (quoting State v. Smith, 167 N.J. 158, 181 (2001)). "[I]n

order to meet the second part of that test, 'the misconduct must have been so


                                                                          A-3159-16T3
                                        6
egregious that it deprived defendant of a fair trial.'" Ibid. "Stated differently,

'[t]o warrant a new trial the prosecutor's conduct must have been clearly and

unmistakably improper, and must have substantially prejudiced defendant's

fundamental right to have a jury fairly evaluate the merits of his defense.'" Ibid.

(alteration in original) (quoting Smith, 167 N.J. at 181-82).

      Further, "[w]hen reviewing the State's response, we 'must not only weigh

the impact of the prosecutor's remarks, but must also take into account defense

counsel's opening salvo.'" State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.

2001) (quoting Unites States v. Young, 470 U.S. 1, 12 (1985)).

      Under a plain error standard of review, we find the prosecutor's statements

provide no basis to set aside defendant's conviction. During his summation,

defense counsel attacked Guerra's and Duran's credibility by insinuating they

were lying and emphasizing that the majority of the State's case rested on their

credibility. The prosecutor's remarks were only a response to defense counsel's

remarks. The prosecutor addressed defense counsel's attack by arguing that

counsel's focus on short police reports was not relevant or worthy of serious

consideration. The prosecutor's comments did not denigrate defense counsel by

simply characterizing counsel's comments as "distractions."




                                                                           A-3159-16T3
                                        7
      In addition, the prosecutor's comments were permissible, as she did not

personally vouch for the officers' credibility or refer to evidence outside of the

record for support.    See Walden, 370 N.J. Super. at 560.        She based her

comments on supporting testimony and the corroboration provided by pre-

marked "buy money" used in the drug transaction. Further, the prosecutor made

her comments after defense counsel's attack on the detectives' credibility by

asking the jury to follow the court's instructions, analyze the detectives'

testimony in accordance with the instructions, and apply the factors in the

instructions to find the detectives credible. The prosecutor asked the jury to

focus on the facts and the law, and reminded them it was the State's burden to

prove each element of the crime beyond a reasonable doubt. There was nothing

improper about the prosecutor's comments.

                                       III.

      Defendant challenges his sentence in Point II. He argues the court's

finding of aggravating factor N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring

the defendant and others from violating the law[,]" was not an adequate basis

for imposition of a seven-year sentence where he had only one prior arrest for a

disorderly persons offense. He also argues the judge erred in failing to find




                                                                          A-3159-16T3
                                        8
mitigating factor N.J.S.A. 2C:44-1(b)(11), "[t]he imprisonment of the defendant

would entail excessive hardship to himself or his dependents[.]"

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

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we

must determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based 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.

            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

      We have considered defendant's arguments in light of the record and

applicable legal principles and conclude they are without sufficient merit to

warrant discussion in a written opinion.         R. 2:11-3(e)(2).        We affirm

substantially for the reasons the court expressed at sentencing. We are satisfied

the court did not violate the sentencing guidelines and the record amply supports

the court's findings on aggravating and mitigating factors. The sentence is

clearly reasonable and does not shock our judicial conscience.

      Affirmed.



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