On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-03-0228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo, and Sapp-Peterson.
Tried by a jury in absentia, defendant Shamene Gomez was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count 1); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and b(3) (Count 2); third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7 and 2C:35-5a (Count 3); and second-degree distribution of cocaine within 500 feet of a public housing project, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a (Count 4). The court merged the first three counts into the fourth, imposing for that crime a seven-year term subject to a three-year parole bar mandated for Count 3. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on October 7, 2000, Paterson Police Detective Thomas Conyers, a fifteen-year veteran of the narcotics bureau, conducted a plain-clothes surveillance in an unmarked car at the Alexander Hamilton housing project, a high-rise apartment complex in Paterson known for drug activity. At 10:15 a.m., at the beginning of surveillance, Conyers noticed three individuals, two black men and a black female later identified as defendant, standing between two buildings. About two minutes later, Conyers observed defendant run over to a black Chevrolet Blazer that had just pulled into the parking area, briefly converse with the driver, and then hand over a small object in exchange for paper money. Afterward, defendant returned to the two males. Because he suspected that the transaction, which only took between ten and fifteen seconds, was a drug sale, Conyers radioed the back-up officers and requested that they respond to the scene. He described defendant as a female with "dark skin, about five seven, five six, approximate weight maybe 160 to 170 pounds wearing a gray gym suit or sweat suit."
Soon after, a blue sports car pulled into the parking lot. This time, the two males standing next to defendant ran to both sides of the blue car, and handed small objects to the individuals inside through both the driver and passenger side windows in exchange for money. The car left the area, and the two males returned to where defendant was standing, between the two buildings. The backup officers attempted without success to locate the blue car.
About a minute or two later, Detective Conyers observed defendant walk up to a Hispanic male, later identified as co-defendant Ariel Ocasio, standing to the rear of the buildings, and make another object-for-paper-money exchange. Actually, Conyers observed defendant "count[ing] out some objects" and handing them to Ocasio in return for money. Ocasio then got into a white Camry parked nearby and drove away. Conyers followed the Camry until his back-up team, consisting of Sergeant Kevin Brady and other officers, were close enough to take over. They then trailed the Camry until it stopped at a dead end street, at which point Brady observed "several small objects go, fly out the window into a little grassy area by the sidewalk." Ocasio was removed from his vehicle. Brady directed another officer to search the area where the small objects were thrown. Two small greenish-colored baggies of suspected cocaine were recovered on the grass approximately three to four feet from the Camry. One of the baggies was "substantially full" and the other baggie had "substantially less." Subsequently, one of the two bags was randomly tested and found to contain .13 grams of cocaine.
Meanwhile, Conyers returned to the surveillance location, where defendant had remained in the same spot between the buildings. Following Conyers' direction to apprehend the trio, several back-up units pulled into the parking lot. When Detective Anthony DeMarco exited and yelled "police" with his police badge exposed on his chest, defendant, who was ten to fifteen feet away, turned around and ran toward the apartment building. The two males also fled. DeMarco and another officer gave chase, but lost sight of defendant for about five to ten seconds before she entered the building. When DeMarco entered, he saw defendant in the hallway by the stairwell. Defendant turned around, emptied her pockets, and without prompting, stated "I have nothing." The officers conducted a brief search of defendant and the hallway and no drugs or money were found.
At trial, both Conyers and Ocasio positively identified defendant from a post-arrest police photograph. Additionally, Ocasio testified he drove to the housing project specifically to purchase cocaine, then exited his car and purchased a small "nickel bag" of cocaine from defendant, who had approached him. He also claimed to have found an identical small bag on the ground that had some residue in it. He acknowledged throwing a small paper bag out the window of his car before the police arrived, but was unsure whether he had placed the two small bags into the paper bag before tossing the paper bag out. Ocasio also acknowledged on cross-examination previously telling defense counsel that defendant "wasn't the one" who sold him drugs that day, but further explained that he had told this lie because he felt bad and "didn't want to hurt her in any way."
The defense at trial claimed mistaken identity, noting that defendant was not in possession of drugs or money at the time of her arrest. Evidently crediting the State's version, the jury convicted defendant on all counts.
On appeal, defendant raises the following issues:
I. DEFENDANT'S CONVICTION IN ABSENTIA MUST BE REVERSED WHERE IT IS INDISPUTABLE THAT DEFENDANT DID NOT RECEIVE NOTICE OF HER TRIAL DATE; AND WHERE, IN ANY EVENT, THE TRIAL COURT FAILED TO MAKE SUFFICIENT INQUIRY INTO DEFENDANT'S WHEREABOUTS AND WHETHER SHE HAD RECEIVED NOTICE OF THE TRIAL DATE, PRIOR TO COMMENCING THE TRIAL IN HER ABSENCE. (NOT RAISED BELOW).
A. THERE WAS NO KNOWING, VOLUNTARY WAIVER BY DEFENDANT OF HER RIGHT TO BE PRESENT AT TRIAL, WHERE SHE DID NOT RECEIVE ACTUAL NOTICE OF HER TRIAL DATE. B. THE TRIAL COURT FAILED TO MAKE SUFFICIENT INQUIRY INTO DEFENDANT'S WHEREABOUTS AND WHETHER SHE HAD RECEIVED NOTICE; AND OTHERWISE FAILED TO MAKE THE REQUIRED FINDINGS OF FACT PRIOR TO COMMENCING THE TRIAL IN DEFENDANT'S ABSENCE.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE AN INFLAMMATORY PHOTOGRAPH OF DEFENDANT THAT DEPICTED HER CHAINED TO A WALL WHILE IN POLICE CUSTODY.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING THE JURY A "FLIGHT" CHARGE, WHERE THE EVIDENCE DID NOT SUPPORT SUCH A CHARGE.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ACQUITTING DEFENDANT AT THE CLOSE OF THE STATE'S CASE, OR ALTERNATIVELY THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHERE THERE WAS NO EVIDENCE THAT THE SUBSTANCE ALLEGEDLY POSSESSED BY DEFENDANT WAS CDS. (NOT RAISED BELOW).
V. THE TRIAL COURT ERRONEOUSLY ADMITTED THE STATE'S LABORATORY REPORT INTO EVIDENCE, WHERE (A) THE REPORT REFERRED TO DEFENDANT AS HAVING CDS IN HER POSSESSION (WHICH WAS THE PROVINCE OF THE JURY TO DETERMINE), AND (B) THE REPORT DID NOT ESTABLISH THAT THE SUBSTANCE WHICH DEFENDANT ALLEGEDLY SOLD WAS CDS. (PARTIALLY RAISED BELOW).
VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN SENTENCING DEFENDANT, BY FAILING TO FIND SEVERAL MITIGATING FACTORS, WHICH CLEARLY EXISTED AND THUS OUTWEIGHED THE ONE AGGRAVATING FACTOR, THEREBY WARRANTING EITHER (A) THE IMPOSITION OF A LESSER BASE SENTENCE UNDER N.J.S.A. 2C:44-1(f)(1), OR (B) SENTENCING DEFENDANT AS A THIRD-DEGREE RATHER THAN A SECOND-DEGREE OFFENDER PURSUANT TO N.J.S.A. 2C:44-1(f)(2). (NOT RAISED BELOW).
VII. DEFENDANT IS ENTITLED TO A REMAND ON SENTENCING, WHERE THE STATE DID NOT ARTICULATE ITS REASONS FOR REFUSING TO WAIVE THE PERIOD OF PAROLE INELIGIBILITY. (NOT RAISED BELOW).
VIII. DEFENDANT'S CONVICTION SHOULD BE REVERSED WHERE SHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT HER TRIAL, AS DEMONSTRATED BY, INTER ALIA (A) THE FAILURE OF COUNSEL TO OBJECT TO DEFENDANT BEING TRIED IN ABSENTIA, OR AT LEAST TO MOVE FOR A NEW TRIAL ONCE DEFENDANT WAS LOCATED; AND (B) THE FAILURE TO OBJECT TO THE ADMISSION OF THE PHOTOGRAPH OF DEFENDANT IN CHAINS. (NOT RAISED BELOW).
Defendant contends for the first time that she was denied her constitutional right to be present at her trial because she did not receive "in court" notice of the rescheduled trial date or acknowledge notice in writing. We disagree.
At the status conference on December 3, 2001, defendant received actual notice in court of her original trial date, April 15, 2001. She was also given Hudson*fn1 warnings that same date. ...