                                NOT FOR PUBLICATION WITHOUT THE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-2025-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GIOVANY J. AUGUSTIN, a/k/a
AUGUSTIN GIOVANY, AUGUSTIN
J. GIOVANY, and AUGUSTINE
GIOVANY,

     Defendant-Appellant.
_______________________________

                    Submitted September 19, 2019 – Decided September 27, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-04-0318.

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

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Michele C. Buckley, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    on the brief).
PER CURIAM

      Defendant Giovany J. Augustin appeals from a September 8, 2017

judgment of conviction of third-degree possession of cocaine, contrary to

N.J.S.A. 2C:35-10(a)(1). We affirm.

                                      I.

      Elizabeth Police obtained a warrant authorizing the search of defendant's

person and home. On November 29, 2013, several officers executed the warrant.

They encountered defendant in a car exiting the parking lot of the apartment

building identified in the warrant. The officers stopped defendant, removed him

from the car, and escorted him to the apartment. Upon entering the unit, the

officers discovered defendant's grandmother. Defendant denied living in the

apartment. At trial, defendant and his grandmother testified that the apartment

was occupied by the grandmother and two male relatives of defendant and that

he happened to be visiting his grandmother when officers arrived to execute the

warrant.

      A detective testified that the apartment's only bedroom was searched

because "[i]t was my understanding that we believed that if we were going to

find something in the apartment it would probably be [in] the bedroom because

there was young men's clothing in there and it appeared to be that's where Mr.


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                                      2
Augustin was sleeping." He explained that men's clothing, sneakers, and boots

were visible from the doorway of the bedroom.

      The search revealed a loaded handgun with a partially defaced serial

number, holster and strap, bullets, empty plastic bags, razor blades, empty bags

with corners cut out, zip ties, and a wallet with $1000 cash. In addition, the

officers found two unopened letters addressed to defendant, his high school

identification, a debit card with his name on it, and a Visa gift card that appeared

to have defendant's name handwritten on the back. In the bedroom closet, the

officers found a scale and, in the pocket of a coat, a bag with sixty-three

individual baggies of cocaine.

      During the search, defendant was seated in the kitchen. Officers found a

single baggie of cocaine on the floor where defendant was seated. No other

room in the apartment was searched.

      A grand jury indicted defendant, charging him with: third-degree

possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1); third-degree

possession of cocaine with the intent to distribute, contrary to N.J.S.A. 2C:35 -

5(a)(1) and (b)(3); second-degree unlawful possession of a weapon, contrary to

N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm, contrary to

N.J.S.A. 2C:39-3(d); second-degree possession of a firearm in the course of


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                                         3
possession with intent to distribute cocaine, contrary to N.J.S.A. 2C:39 -4.1(a);

and fourth-degree possession of a prohibited device, contrary to N.J.S.A. 2C:39-

3(f).

        After the five-day trial, a jury found defendant guilty of third-degree

possession of cocaine. The jury could not reach a unanimous verdict on the

remaining counts of the indictment. The court sentenced defendant to three

years of probation. The State subsequently dismissed the remaining charges.

        This appeal followed. Defendant raises the following argument for our

consideration:

              THE LAY OPINION OFFERED BY A STATE
              WITNESS THAT IT APPEARED TO HIM THAT
              DEFENDANT SLEPT IN THE BEDROOM WHERE
              CONTRABAND WAS FOUND WAS IN VIOLATION
              OF N.J.R.E. 701, STATE V. MCLEAN, AND OTHER
              CASES. (NOT RAISED BELOW)

                                          II.

        N.J.R.E. 701 provides that

              [i]f a witness is not testifying as an expert, the witness'
              testimony in the form of opinions or inferences may be
              admitted if it (a) is rationally based on the perception
              of the witness and (b) will assist in understanding the
              witness' testimony or in determining a fact in issue.

A lay witness, including a police officer in a criminal trial, may give a lay

opinion "based on [his or her] personal observations . . . ." State v. LaBrutto,

                                                                            A-2025-17T2
                                          4
114 N.J. 187, 198 (1989). Perception is based on the acquisition of knowledge

through use of one's sense of touch, taste, sight, smell or hearing. State v.

McLean, 205 N.J. 438, 457 (2011). A lay witness may not, however, give

opinion testimony to "explain the implications of observed behaviors that would

otherwise fall outside the understanding of ordinary people on the jury. " Id. at

460.

       Defendant argues the detective offered his lay opinion that defendant

resided in the bedroom and was in possession of its contents. This was the

ultimate issue before the jury. In addition, he argues the lay opinion was based

on either inadmissible hearsay evidence or other information not before the jury.

       Because defendant did not object to the detective's testimony during trial,

we review the record for plain error. State v. Ross, 229 N.J. 389, 407 (2017).

Our inquiry is to determine whether the alleged error was "clearly capable of

producing an unjust result . . . ." R. 2:10-2. Under this standard, reversal is

required if there was an error "sufficient to raise a reasonable doubt as to whether

[it] led the jury to a result it otherwise might not have reached." State v. Green,

447 N.J. Super. 317, 325 (App. Div. 2016) (quoting State v. Macon, 57 N.J. 325,

336 (1971)). "It may be fair to infer from the failure to object below that in the

context of the trial the error was actually of no moment." Macon, 57 N.J. at 333.


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                                         5
      After a careful review of the record in light of applicable precedents, we

conclude that defendant has not established plain error.         The detective's

testimony was rationally based on his visual observations of men's clothing,

sneakers, and boots in the bedroom and explained why the officers searched that

room. He did not testify that it was his opinion that defendant was in possession

of the weapon, drugs, and other items found in the bedroom. Surmising that a

man occupies a bedroom in which one observes men's clothing, sneakers, and

boots does not fall outside the understanding of ordinary members of the jury.

      Nor do we agree with defendant's argument the detective's testimony was

based on inadmissible hearsay or other evidence not before the jury.         The

detective was in possession of a warrant to search defendant's residence. He

explained to the jury that his observations lead him to believe that the warrant

should be executed in the bedroom because it appeared defendant was living

there. This is a matter of "common knowledge and observation" permissible in

lay opinion testimony. State v. Bealor, 187 N.J. 574, 586 (2006) (quoting State

v. Johnson, 120 N.J. 263, 294 (1990)).

      Affirmed.




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