March 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE RIVERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-01-0046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 18, 2007
Before Judges A. A. Rodríguez and Sabatino.
Following a jury trial defendant, Jose Rivera, was convicted of third degree distribution of heroin, a controlled dangerous substance (CDS), while within 1,000 feet of school property, N.J.S.A. 2C:35-7, -5a and related charges. The State moved for imposition of an extended term. After merger of all convictions, the judge imposed an extended nine-year term with four and one-half years of parole ineligibility. We affirm.
These are the relevant proofs. Paterson Police Detective Orlando Robinson testified that on the night of August 5, 2003, at approximately 9:00 p.m., he was conducting an undercover surveillance operation in the area of East 18th Street near Park Avenue. He was alone in an unmarked police car. He observed, from about twenty-five feet away, a man later identified as defendant, standing in front of a multifamily apartment complex on East 18th Street. Robinson noticed a female, later identified as Miele Luz Matos, approach defendant. After a brief conversation, Robinson noticed that defendant removed a small light colored object out of his pocket and passed it to Matos, who then gave defendant currency. Robinson notified his backup unit, Detectives John Luberza and Joseph Rodriguez, and provided a description of Matos. She went into a white van traveling south on East 18th Street. Matos was stopped. Rodriguez arrested Matos. When he approached her he found glassine envelopes in her right pants pocket. Matos was placed under arrest. Robinson requested the backup officers to arrest defendant.
Luberza testified that he received a radio transmission from Robinson to look for a male wearing a blue shirt, blue jeans and white and black sneakers. He arrested defendant, who fit the description. According to Luberza, as he cuffed defendant, defendant stated, "I don't have any left." Seventy-one dollars were found on defendant's person.
Matos testified at trial as a State witness. She admitted to prior convictions, commencing in 1993 for theft, 1997 for burglary, 2003 for possession of illicit narcotics and admitted that she was currently incarcerated, serving a three-year sentence for possession of heroin. Matos testified that for the present offense she faced ten years incarceration. In exchange for identifying defendant as the person from whom she purchased heroin, the State recommended that she serve three years on an extended term sentence.
According to Matos, she was in the area of East 18th Street to buy heroin. She jumped out of a white van to purchase heroin from defendant, whom she had known for six months. Defendant sold her a bag of "heroin" for $10. Matos got back into her friend's van and drove away. Four blocks away, the van was pulled over by police. Matos exited the vehicle and was asked by the officer to take everything out of her pockets. She was arrested at the scene. No witnesses testified for defendant.
On appeal, defendant contends:
DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF OFFICER ROBINSON, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION (Not Raised Below).
Specifically, defendant argued that it was improper for Robinson to testify that he believed he had just observed a hand-to-hand drug transaction between Matos and defendant, because such opinion "invaded on the exclusive province of the jury." We are not persuaded.
As a fact witness, Robinson can offer an opinion based on his perception of events if it will assist the jury in understanding his testimony. N.J.R.E. 701. If the lay opinion testimony meets this criteria, it will be admitted. It is up to the jury to decide the weight to be given this opinion. Moreover, a lay witness, who has substantial experience in an area, may draw upon such experience in forming a lay opinion. See Trentacost v. Brussel, 164 N.J. Super. 9 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (holding that a police officer who investigated between 75 and 100 crimes in a particular neighborhood over a three-year period may offer his opinion that the neighborhood is a high crime area). See also State v. DeLuca, 325 N.J. Super. 376, 393 (App. Div. 1999), aff'd on other grounds, 168 N.J. 626 (2001) (holding that a police officer may testify that he saw distinctive footprints in the snow that were similar to prints left by the defendant's boots); State v. Locurto, 157 N.J. 463, 471-72 (1999) (holding that police officers and other lay witnesses may testify that a car was apparently speeding); see also N.J.R.E. 704 (Opinion on Ultimate Issue).
Thus, we find no merit in the argument, which is being raised for the first time on appeal that Robinson, based on his expertise, could not offer an opinion that he had witnessed a drug transaction. It was not plain error for the judge to allow such testimony. R. 2:10-2.
Defendant also contends:
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.
Defendant focuses on these two excerpts from the prosecutor's summation:
Now, I say to his credit that [defense counsel] did not try to imply that Detective Robinson lied in any way, shape or form. I don't think that could credibly be done. You saw him and you listened to him, and you have your own gut feeling of what you thought of him when he testified. I don't think for a second any of you thought he was a liar, and he's a decent guy and a decent cop calling it like it is.
Now, I hope that Detective Robinson impressed you as an honest cop, and that's your call and I understand that. I hope that he did not impress you as a idiot. How much of an idiot would you have to be to be staring at one person, the dealer, for a period of only a few minutes, and your job is simply to make sure that the back-up team grabs the right guy? That's all you are doing at this point; just watching the dealer, watching the back-up team walk in and grab him, and you louse that up? How could you do that? But for the defendant to be not guilty, that's what Detective Robinson had to do.
The prosecutor concluded his summation as follows:
On August 5 of 2003, the defendant chose to deal drugs, and he didn't care what happened to people like Lucy Matos and he cared about her ten bucks and all of the other people who would buy drugs because that's all that matters and its all about money. But there are consequences to this, and we saw it in this courtroom; that thirty-two year old woman. So, you hold him accountable for what he did and you tell him we're not okay with you dealing drugs.
Defense counsel objected to the summation. The judge overruled the objection.
We conclude that the comments, generally, were a proper argument on the evidence, State v. Perry, 65 N.J. 45, 48 (1974), and the legitimate inferences therefrom. State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). The prosecutor's comment that "[Robinson is] a decent guy and a decent cop" comes close to violating the proscription that a prosecutor should not vouch for a witness' credibility. State v. Frost, 158 N.J. 76, 85 (1999). However, the reference was brief and ambiguous. It is not clear whether the prosecutor is vouching for Robinson's credibility or asking the jury to reach that conclusion. Therefore, we conclude that this transgression, if it was a transgression, is not "so egregious that it deprives defendant of a fair trial." Id. at 83; State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987).
Defendant also challenges his sentence. He contends:
DEFENDANT'S SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Defendant was forty-one years old at the time of the sentencing hearing. He has a history of one indictable conviction for possession of CDS, for which he received a three-year term. The judge found the following three aggravating factors enumerated in N.J.S.A. 2C:44-1a: (3) the risk that defendant will commit another offense; (6) the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and (9) the need for specific and general deterrence from violating the law. The judge found that none of the mitigating factors listed in N.J.S.A. 2C:44-1b applied.
The judge granted the State's motion for a mandatory extended term, and imposed a nine-year term with a four and one-half period of parole ineligibility, which is mandated by N.J.S.A. 2C:43-6f.
Defendant does not challenge the imposition of an extended term. We merely note that in State v. Thomas, 188 N.J. 137 (2006), the Supreme Court declared that the mandatory extended-term sentences imposed pursuant to N.J.S.A. 2C:43-6(f),
[Do] not contravene defendant's due process and Sixth Amendment jury trial rights because a sentencing court, and not a jury, makes the determination that a defendant has the statutorily required number and type of prior convictions to be eligible for sentencing up to the maximum of N.J.S.A. 2C:43-6(f)'s mandatory enhanced range. [State v. Pierce, 188 N.J. 155, 162-63 (2006); Thomas, supra, 188 N.J. at 151-52.]
N.J.S.A. 2C:43-6(f) provides for a sentence enhancement on the basis of a judicial fact-finding with regard to the finding of prior convictions that is authorized under Apprendi and Blakely. Thomas, supra, 188 N.J. at 151-52.
Defendant's contention focuses on the fact that he was sentenced to a term higher than the former presumptive term for an extended term on a third degree offense. He argues that a remand is necessary for re-sentencing. We agree that a remand for re-sentencing is appropriate.
In State v. Natale, 184 N.J. 458, 482 (2005), the Court held that, aside from prior convictions, "the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions . . . ." Applying this rule to the then current New Jersey sentencing scheme, the Court held that prior to any judicial fact-finding, the maximum sentence that could be imposed is the presumptive sentence, also known as the statutory maximum pursuant to Blakely.*fn1 Id. at 484. For these reasons, the Court concluded that, "the Code's system of presumptive term sentencing violates [a defendant's] Sixth Amendment right to trial by jury." Ibid. Thus, the Court came to the conclusion that eliminating the presumptive terms and making the statutory maximum the top of the range for the crime charged was the best solution. Id. at 487.
The Supreme Court's recent decision in Thomas, supra, 188 N.J. at 153, held that in order to be more constitutionally prudent, courts must "construe narrowly the 'facts' that Blakely's prior-conviction exception permits a sentencing court to consider." Ibid. The Court noted that clear evidence is ordinarily not available to show that a finding of aggravating factors (3), (6) and (9) "were based exclusively on the fact of the prior conviction." Id. at 152. A sentencing court's determination that the offender is a risk to recidivate, the seriousness of the prior record and the need to deter, are qualitative assessments by the court, which the court is expected to make, but which goes beyond the simple finding that the offender has a criminal history. Id. at 153. These determinations, the Court notes, "include an evaluation and judgment about the individual in light of his or her history." Ibid. Judicial fact finding must be limited merely to a finding that the offender has a prior conviction. Ibid. In Natale, the Court stated that it "will order a new sentencing hearing in each affected case based on the record at the prior sentencing." Natale, supra, 184 N.J. at 495.
Such a re-sentencing is necessary here. For that reason, we do not address the contention that:
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
We reject the remaining contentions:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF POSSESSION AND OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED (Not Raised Below).
A. The Testimony Of Detective
Robinson And Detective Luberza Was Vague And Demonstrated An Overall Uncertainty Of The Events.
B. Matos Was An Accomplice Witness Whose Testimony Was Unreliable And Inconsistent.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
We conclude that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely note that the testimony by Robinson, Lubertza and Matos, which the jury obviously credited, established the elements of "possession" and "intent to distribute." N.J.S.A. 2C:35-5a(1).
The convictions are affirmed. The sentence is remanded to the Law Division, Passaic County for re-sentencing.