                                NOT FOR PUBLICATION WITHOUT THE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-3183-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ISMAEL GONZALEZ,

     Defendant-Appellant.
___________________________

                   Submitted February 6, 2019 – Decided July 9, 2019

                   Before Judges Ostrer and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 17-03-0766.

                   Zucker Steinberg & Wixted, PA, attorneys for appellant
                   (Dennis Wixted, on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Jason Magid, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      A jury found defendant Ismael Gonzalez guilty of third-degree possession

of heroin, N.J.S.A. 2C:35-10(a)(1), distribution, N.J.S.A. 2C:35-5(a)(1) and -

5(b)(3), and distribution in a school zone, N.J.S.A. 2C:35-7(a); and fourth-

degree destruction of evidence, N.J.S.A. 2C:28-6(1).      Judge Kathleen M.

Delaney granted the State's motion for a mandatory extended term, and, after

merger, sentenced defendant to an eight-year prison term on the school zone

offense, with a four-year parole disqualifier, and a consecutive eighteen-month

prison term on the destruction-of-evidence offense.

      In his appeal from his conviction and sentence, defendant presents the

following points for our consideration:

            POINT I: THE EVIDENCE WAS INSUFFICIENT TO
            SUPPORT THE DEFENDANT'S CONVICTIONS AS
            THE     STATE FAILED     TO  PROVE   THE
            DEFENDANT'S GUILT BEYOND A REASONABLE
            DOUBT (RAISED BELOW: 1T208 (ON COUNTS 1,
            2, 3); NOT RAISED BELOW ON COUNT 4).

            POINT II: THE TRIAL COURT ERRED WHEN IT
            SENTENCED THE DEFENDANT TO A PRISON
            TERM AT THE HIGHER END OF HIS GUIDELINE
            RANGE ON COUNT 3 AND IMPOSED A
            CONSECUTIVE, NOT CONCURRENT SENTENCE
            ON COUNT 4 (RAISED BELOW, 4T10, 4T13).

            POINT III: THE TRIAL COURT ERRED IN
            DENYING THE DEFENDANT'S ORAL MOTION TO
            STAY SENTENCING PROCEEDINGS TO FILE AN
            INTERLOCULTORY [sic] APPEAL FROM THE

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                                          2
             DENIAL OF ACCEPTANCE INTO DRUG COURT
             PROGRAM, IN WHICH HE SHOULD HAVE BEEN
             PERMITTED TO PARTICIPATE (RAISED BELOW,
             4T5-6).

      We discern no merit to defendant's arguments and affirm.

      As defendant did not move for a new trial, his argument that the conviction

was against the weight of the evidence is procedurally barred. 1 Rule 2:10-1

states that "the issue of whether a jury verdict was against the weight of the

evidence shall not be cognizable on appeal unless a motion for a new trial on

that ground was made in the trial court." See State v. McNair, 60 N.J. 8, 9 (1972)

(applying the Rule). The procedural requirement is no mere technicality; it

reflects our obligation to defer to a trial court's ruling, which is based on its feel

of the case, and its opportunity to assess witness credibility. State v. Carter, 91

N.J. 86, 96 (1982). Although the Rule may be relaxed in the interests of justice,

to prevent a miscarriage of justice under the law, State v. Smith, 262 N.J. Super.

487, 512 (App. Div. 1993), there is no compelling reason to do so here.




1
  Although defendant asserts in his first point on appeal that the sufficiency-of-
evidence argument was raised below as to the drug possession and distribution
charges, the record reference pertains to an evidentiary objection in the midst of
the State's case, not a new trial motion.


                                                                              A-3183-17T1
                                          3
      In any event, defendant's argument that the State's proofs were insufficient

lacks substantive merit. On a motion for a new trial, "[t]he evidence should be

sifted to determine whether any trier of fact could rationally have found beyond

a reasonable doubt that the essential elements of the crime were present."

Carter, 91 N.J. at 96. We conclude the jury's verdict was rationally based on the

evidence, particularly the testimony of two Camden County police officers, one

of whom said that, while undercover, he purchased heroin directly from

defendant.

      Detective Andrew Coulter testified that he observed defendant appear to

sell narcotics from the back window of a Camden City home. Two-and-a-half

weeks later, Coulter returned and, undercover, purchased three small glassine

packets of heroin from defendant for $30. Other officers then entered the home

to arrest defendant, after a delay during which they removed a metal gate that

blocked the front door.      Coulter followed shortly after.      He recognized

defendant, handcuffed and sitting on the couch, as the man who sold him drugs.

Defendant then volunteered, "You're not going to find anything. I just flushed

it." A second Camden detective, Nigel Schockley, testified that he overheard

defendant's "I just flushed it" statement.




                                                                          A-3183-17T1
                                         4
      A search of the home, including the toilet, uncovered no other drugs or

paraphernalia, but it did reveal $1292 in cash, including the currency Coulter

used. To identify the currency, Coulter referred to the serial numbers and an

undated photograph he said he took of his purchase money before the undercover

operation. Coulter also identified defendant in court. Coulter said that a field

test of one packet of the purchased substance at the police station confirmed that

it was heroin. A witness from the State Police Laboratory testified that one

randomly chosen packet later tested positive for heroin.

      Defendant's sole witness was his sister, who owned the home where

defendant lived, and identified various photographs of the home. In particular,

she noted that the rear windows had metal gates, which Coulter and Schockley

did not recall when they testified.

      Defendant challenges the drug possession and distribution charges

primarily on the ground that the State did not adequately maintain a chain of

custody of the drugs. Coulter testified that the drug packets sat in an evidence

drawer, unlogged and accessible to other officers, for what turned out to be four

days, before they were transferred to the prosecutor's office, which submitted

them to the State Laboratory a week later. On appeal, defendant does not

challenge the court's admission, over defense objection, of the drugs Coulter


                                                                          A-3183-17T1
                                        5
testified he purchased. Rather, he contends that deficiencies in the storage and

documentation of the drugs justifies upsetting the verdict.

      We disagree. Coulter presented a sufficient foundation for finding it

reasonably probable that the evidence was intact and unchanged. See State v.

Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009) (discussing chain-of-custody

foundation for admission of evidence). It was up to the jury to decide whether

the method of securing the evidence raised reasonable doubt that defendant sold

the heroin presented at trial. See State v. Morton, 155 N.J. 383, 446-47 (1998)

(stating that "a defect in the chain of custody goes to the weight, not the

admissibility, of the evidence introduced") (quoting United States v. Matta-

Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995)). The jury obviously concluded it

did not.

      Little need be said about defendant's challenge to the sufficiency of

evidence supporting the destruction-of-evidence charge. Two officers stated

defendant admitted flushing "it" down the toilet. Those statements, plus the

officers' inability to find any other drugs in the house, despite the other evidence

of drug distribution, was sufficient circumstantial evidence to support the jury's

verdict that defendant destroyed evidence.




                                                                            A-3183-17T1
                                         6
      We also reject defendant's challenge to his sentence. The court properly

granted the State's motion for an extended term based on defendant's prior

conviction for distribution within a school zone. The court reviewed defendant's

record, noting the current indictable conviction was his fourth, following two

for drug conspiracy and the prior school zone offense.         He also had two

convictions for contempt of a domestic violence restraining order. The court

found aggravating factors three, risk of reoffending; six, prior criminal record;

and nine, the need to deter defendant and others. See N.J.S.A. 2C:44-1(a)(3),

(6), (9). Absent any mitigating factors, see N.J.S.A. 2C:44-1(b), the court found,

clearly and convincingly, that the aggravating factors substantially outweighed

the mitigating. The court also considered the factors under State v. Yarbough,

100 N.J. 627, 643-44 (1985), and concluded that the destruction of evidence

offense was separate and distinct from the possession and distribution charges,

and justified a consecutive sentence.

      We deferentially review the trial court's sentencing determination. State

v. Grate, 220 N.J. 317, 337 (2015). Judge Delaney thoroughly reviewed the

aggravating and mitigating factors and explained in ample detail the reasons for

the sentence she imposed, including the consecutive sentence. See State v.

Fuentes, 217 N.J. 57, 74 (2014) (stating that trial courts must provide a "clear


                                                                          A-3183-17T1
                                        7
and detailed statement of reasons" for a sentence).      We reject defendant's

argument that the court was obliged to find mitigating factor 10 – amenability

to probation – and factor 11 – excessive hardship to himself or others. N.J.S.A.

2C:44-1(b)(10), -1(b)(11). The court's finding of aggravating factors and lack

of mitigating factors was "based upon competent and credible evidence in the

record." Fuentes, 217 N.J. at 70 (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)). Defendant reoffended despite previous probationary opportunities and

was subject to a mandatory extended term of at least five years. Furthermore,

the court found that defendant's young son would be cared for by his paternal

grandmother, with whom he was living, along with defendant.

      We also discern no error in the court's well-reasoned imposition of a

consecutive sentence.   Unlike the drug offenses, which were motivated by

financial gain, the destruction of evidence was motivated, as the trial judge

noted, by the goal of impeding law enforcement. The court was justified in

imposing a consecutive sentence for this distinct and separate crime. In sum,

defendant's sentence does not shock our judicial conscience. See State v. Case,

220 N.J. 49, 65 (2014). Therefore, we will not disturb it.

      Finally, we need not comment on defendant's argument that the trial court

erred in not staying sentencing until defendant pursued an interlocutory appeal


                                                                        A-3183-17T1
                                       8
of a different judge's denial of his application for Drug Court. The issue of the

stay is moot; and defendant did not appeal the Drug Court denial itself. See R.

2:11-3(e)(2).

      Affirmed.




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