State v. Pemberthy

• Decision Date: 05 April 1988
• Citation: 540 A.2d 227,224 N.J.Super. 280
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gabriel PEMBERTHY, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Rigoberto MONCADA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 280

224 N.J.Super. 280

540 A.2d 227

STATE of New Jersey, Plaintiff-Respondent, v. Gabriel PEMBERTHY, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Rigoberto MONCADA, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 22, 1988.

Decided April 5, 1988.

Louis N. Rainone, Sayreville, for defendant-appellant Gabriel Pemberthy (A-767-84T4) (Karcher, McDonnell & Rainone, attorneys; Louis N. Rainone, of counsel and on the brief).

Philip A. Ross, Designated Atty., East Orange, for defendant-appellant Rigoberto Moncada (A-1994-84T4) (Alfred A. Slocum, Public Defender; Philip A. Ross of counsel and on the brief).

Richard H. Morton, Deputy Atty. Gen., for plaintiff-respondent State of N.J. (W. Cary Edwards, Atty. Gen., Jeffrey L. Menkin, on the brief).

Before Judges PETRELLA, DREIER and BAIME.

PER CURIAM.

Defendants Gabriel Pemberthy and Rigoberto Moncada ¹ were convicted after a jury trial of conspiracy to distribute and possess with intent to distribute more than one ounce of cocaine ( N.J.S.A. 24:21-24; 24:21-19 a(1) and 24:21-19 b(2)). Pemberthy was also convicted of possession of more than one ounce of cocaine ( N.J.S.A. 24:21-20 a(2)); possession of said cocaine with intent to distribute ( N.J.S.A. 24:21-19 a(1) and b(2)), and theft of services ( N.J.S.A. 2C:20-8 a). The cocaine involved had an estimated street value of between $12,000,000 and $13,000,000. Pemberthy and Moncada were tried jointly before a jury. They each appealed. We now consolidate those appeals for purposes of this opinion.

Defendants' motions for judgments of acquittal or in the alternative for a new trial were denied on September 7, 1984. When Pemberthy was sentenced the trial judge merged the convictions for possession and possession with intent to distribute into the conviction for conspiracy to distribute and possession with intent to distribute. ²

Pemberthy was sentenced to life imprisonment with a 25 year period of parole ineligibility, a $20,000 fine and assessed a $25 penalty in favor of the Violent Crimes Compensation Board. He was also sentenced to a consecutive 18 month term and an additional $25 Violent Crimes Compensation Board penalty for theft of services from the telephone company by the use of a so-called "blue box."

Moncada was sentenced to 30 years in prison with a 15 year period of parole ineligibility, a $20,000 fine and a $25 penalty to the Violent Crimes Compensation Board.

Pemberthy raises the following points in his brief on this appeal:

1) The State's failure to properly minimize and eliminate conversations mandates suppression of all conversations intercepted during the wiretap.

2) The affidavit submitted in support of the State's application for an order permitting the interception of wire communications over telephone facility (201) 353-4264 was insufficient to support the issuance of said order.

A) The application of Detective Miterotonda failed to show that normal investigative procedures would be unsuccessful. Hence, the order following therefrom was invalid.

B) The State failed to show the necessary probable cause to warrant the order to intercept communications over the Pemberthy facility, and, accordingly, the evidence derived from the wiretap should be suppressed:

i) The phone company wiretaps.

ii) The translator's expertise.

iii) Speculation of the affiant.

C) The affiant did not show "special need" as required by N.J.S.A. 2A:156A-11.

3) The defendant was denied a fair trial based upon the systematic exclusion of Hispanic jurors by the use of the State's peremptory challenges.

4) The court below erred in imposing sentence as same was unduly punitive and the court failed to consider aggravating and mitigating factors.

Moncada raises the following points in his brief on this appeal:

1) A new trial is mandated due to the State's obvious plan to systematically exclude all Spanish-speaking individuals from the jury panel.

2) All evidence seized from the electronic surveillance of the Pemberthy telephone should have been suppressed.

3) The State failed to comply with the prerequisites of N.J.S.A. 2A:156A-12 and State v. Catania, in not properly minimizing the wiretapped conversations.

4) The court improperly qualified two State's witnesses as experts and allowed them to testify in areas far beyond the scope of their knowledge.

5) It was improper for the trial judge to show his complete belief in the State's case and chief expert witness in the presence of the jury.

6) The defendant was deprived of a fair trial by the court's admission of much prejudicial testimony and exhibits before the jury.

7) The court's charge and supplementary charges to the jury were clearly improper.

8) The trial court should have charged the lesser included substantive offense on the conspiracy count.

9) The court should have directed a new trial to the defendant at the end of the entire case as the verdict was clearly against the weight of the evidence and was the result of unwarranted compromise and confusion.

10) The sentence imposed on defendant was clearly unreasonable and shocks the judicial conscience. In addition, the sentence was illegal due to the court's failure to address aggravating and mitigating factors.

In addition to the points raised in his brief, Pemberthy incorporates the arguments not specifically raised in his brief by adopting the arguments raised by Moncada in Points 4, 5, 6 and 7.

The proceedings involved in this matter were protracted. In addition to the bail hearing conducted on November 18, 1983, five days of hearings on a suppression motion were conducted between December 1983 through March 29, 1984; minimization hearings were conducted on 14 days from April 9 to May 31, 1984; and eight additional days on minimization and Driver ³ hearings were held between June 4 through June 14, 1984. The jury selection took place from June 14 through June 18, 1984 and the 20-day trial began on June 19.

The investigation giving rise to the eventual arrest and conviction of defendants essentially began when a telephone company investigator contacted the Elizabeth Police Department on April 4, 1983 concerning the use of a "blue box" ⁴ at the Pemberthy residence. In the course of investigation by the telephone company of the "blue box" they intercepted and recorded telephone conversations and ultimately brought these conversations to the attention of the Elizabeth Police Department. A court order was obtained and recordings of these conversations were furnished to the Police Department. The conversations were predominantly in Spanish and had to be translated into English by the investigators. These conversations formed part of the basis for the application for a wiretap on the Pemberthy residence telephone. According to the testimony adduced at the trial, the defendants used various aliases from time to time. They also used certain code phrases in their conversations. The State produced expert testimony explaining the significance of the conversations. Surveillances were also conducted and as a result of the wiretaps and the surveillances the investigators obtained considerable information concerning drug dealing. The discussions in various telephone calls were between Pemberthy and Moncada and an unidentified person in Colombia and concerned packages that had been sent from Colombia, the price, and the payment of points. Suffice it to say that the evidence presented to the jury was sufficient to establish beyond a reasonable doubt substantial trading in narcotics which involved both Pemberthy and Moncada.

The calls that were monitored to Colombia were all made using the "blue box." The calls were all couched in language which attempted to be vague and obtuse and talked about "intensity" of the product, dosages, points and people who kept being disloyal. There was testimony by the State's expert that each point referred to $10,000 and that $40,000 was the then current price in the Union County area for a "kilo of cocaine."

As part of the surveillance Moncada was observed on May 25, 1983 at Newark Airport in the arrival area of Eastern Airlines carrying a "dark blue Eastern Airlines flight bag." Pemberthy picked him up, and they went to a White Castle restaurant before going home. When Moncada was arrested the police discovered a boarding pass in the name of "Reyes" dated May 23, 1983 for a flight from New York City to Miami, Florida. They also found a return boarding pass for a flight from Miami to Newark dated May 25, 1983 in the same name.

On May 26, 1983 Pemberthy made a "blue box" call to a woman, Ana Milena, who said she was in Baltimore and that "everything [was] smooth." Pemberthy told her to "come down like a sausage." The State's expert opined that this was a colloquial phrase meaning she should "slip in as fast as [she could]." Pemberthy was observed by a surveillance team on that date driving to the White Castle, using the pay telephone, and then meeting Moncada as he arrived in a white Datsun station wagon. They were followed to several other locations and finally around noon they arrived back at Pemberthy's apartment where they found Milena in a black Monte Carlo. The three individuals then proceeded in the station wagon to a store on Broad Street in Elizabeth where Milena was dropped off while the others drove around the block. Milena came out of the store with Kim Lotterman and they all went to the International House of Pancakes. All four individuals were arrested when they left the restaurant.

Search warrants were executed for Pemberthy's apartment, Moncada's apartment and the various vehicles used by them. When Pemberthy's apartment was searched the "blue box" was discovered as well as a white bag containing $74,000 in cash. In addition, a black attache case was found containing papers belonging to Pemberthy, jewelry and approximately $11,900. The papers included registration for a 1981 Datsun and a 1971 Volkswagen as...