June 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE MAIR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1730.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2007
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Defendant, Tyrone Mair, appeals from his conviction on three counts of distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(3); three counts of CDS distribution within 1000 feet of a school, N.J.S.A. 2C:35-7; and three counts of CDS distribution within five hundred feet of a public park, N.J.S.A. 2C:35-7.1. All of the convictions were reported on the judgment of conviction as involving third-degree crimes. Defendant also appeals his extended-term sentence of ten years in prison with five years of parole ineligibility.
We affirm the conviction. The State concedes that defendant's school zone and public park convictions merge. See State v. Parker, 335 N.J. Super. 415 (App. Div. 2000). We remand for correction of the judgment of conviction and for reconsideration of the extended term sentence pursuant to State v. Thomas, 188 N.J. 137 (2006).
These are the most pertinent facts. On July 23, 2003, Sergeant William Logan of the Jersey City Police Department was conducting an undercover surveillance operation near Old Bergen and Bartholdi Avenues. From a surveillance van he first observed a black male, whom Logan later identified in court as defendant Mair, hand "a small object" to a person in a brown car and received "green paper currency in return." Logan believed this might be a drug transaction, but his back-up was not in place and therefore could not apprehend the driver of the brown car. However, this observation caused Logan to focus his surveillance on Mair, whom he described as wearing a white tee shirt, "very long blue jean shorts" and distinctive-looking "rust color brown sneaker[s]."
Logan next observed a white Neon car pull up to the same corner where the brown car had stopped. The front seat passenger, later identified as co-defendant Kevin Campbell, emerged, spoke with Mair and then followed Mair to a fence near an alley. Mair went down the alley, returning in two or three minutes, after which he and Campbell "walked slowly west." According to Logan, "as they [walked] Mr. Mair handed a small object to Mr. Campbell and Mr. Campbell handed what I believe to be green paper currency back to Mr. Mair." Logan observed this and all of Mair's other transactions through binoculars with seven by fifty magnification.
Fifteen or twenty minutes later, Logan observed another transaction in which co-defendant Jason Williams approached Mair; after some delay, Mair entered the alley, emerged and "dropped a few items into Mr. Williams' hand and received . . . green paper currency in return." Logan also observed Mair give "several small items" to a person later identified as Michael Craddock and receive "green paper currency" in return. After entering a nearby house, Mair came back out and gave Craddock "several small items again."
Logan's back-up units arrested Williams, Craddock and Campbell and found drugs in their possession. Campbell had one glassine bag of heroin. Williams had three gold-capped vials of cocaine. Craddock had four gold-capped vials of cocaine.
After two more males approached Mair and he "shook his head no," Logan concluded Mair was out of drugs. He radioed a description of Mair to back-up Officers Mark D'Ambrosio and John Wisnewski and directed them to arrest Mair. When arrested, Mair had no drugs in his possession, although he did have $272 consisting of one fifty-dollar bill, nine twenty-dollar bills, one ten-dollar bill, three five-dollar bills and seventeen singles. A search of the area did not uncover any stash of drugs. According to Logan, the small amounts of drugs found on the buyers normally sold on the street for ten dollars each.
Mair's attorney cross-examined Logan at length concerning his ability to observe the events he claimed to have seen through binoculars from a distance of approximately sixty feet. On re-direct examination, the judge permitted the prosecutor to give the binoculars to the jurors so that they could look through them "to see how they work." In summation, the prosecutor made one reference to the binoculars concerning the jury's opportunity "to see how powerful they were."
During cross-examination by co-defendant Campbell's attorney, Logan was asked about the handling of arrestee's personal property. Logan replied that if the person was released on a summons any property would be returned. He was then asked if the defendants were released on summonses. Logan responded that "the only one possibly to be released would be Mr. Campbell. One had warrants on him and one had charges that we could not release on a summons." The judge denied Mair's request for a mistrial, but instructed the jury that warrants might be "issued for many reasons" including failure to appear in court "for a parking ticket" or other motor vehicle violations. He also instructed them that the warrant was irrelevant to the case and that they should "not consider [the warrant] in any way."
The judge denied Mair's motion for a judgment of acquittal at the close of the State's case on the grounds that if the jury believed the testifying police "officers there is sufficient evidence, circumstantial though it be, that . . . three drug transactions did take place."
Mair's girlfriend, Felicia Stevens, testified that on the afternoon and early evening of July 23, 2003, she was sitting with Mair on the steps outside her house for several hours, from about 3:30 p.m. until the police arrived and arrested him. She insisted she did not see Williams or Campbell, and that Mair did not walk down the street, approach cars, or engage in any of the other alleged drug-selling conduct to which Logan testified. On cross-examination, she confirmed that on the evening of July 23, Mair was wearing the outfit that Logan testified he was wearing.
The trial judge denied defense counsel's request for a cross-racial identification charge, because the witnesses were "trained police officers who deal with individuals of multiple races, nationalities, and ethnic backgrounds on a continuous basis." The judge did give the jury a lengthy general charge on witness identification.
The State filed a motion for a mandatory extended term based on Mair's prior school zone drug conviction, and for a discretionary extended term as a persistent offender based on Mair's four prior indictable convictions and other disorderly persons offenses. Prior to sentencing, Mair's counsel, for the first time, asked the trial judge to recuse himself because he had served as the county prosecutor at the time of Mair's prior convictions. The judge denied the application because "in a county of this size the prosecutor of the county really does not get involved with or know anything about the day to day cases that are being tried, even though they're the attorney of record at the time." The judge did not personally prosecute Mair for the prior offenses and had "never set eyes" on him "until the trial started."
In sentencing Mair to ten years in prison, the judge indicated that he was not imposing a discretionary extended term but rather was imposing a mandatory extended term and that ten years was "the top of the mandatory" extended term range.
On this appeal, Mair raises the following points for our consideration:
POINT I: THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO RULE THAT THE PROSECUTOR'S FORCING CO-DEFENDANTS WILLIAMS AND CAMPBELL TO TRIAL TO PRECLUDE THEM FROM TESTIFYING ON BEHALF OF MAIR WAS PROSECUTORIAL MISCONDUCT AND A VIOLATION OF MAIR'S FEDERAL AND STATE DUE PROCESS AND COMPULSORY PROCESS RIGHTS TO GUARANTEED ACCESS TO WITNESSES AND EVIDENCE. (U.S. Const. Amend. VI & XIV; N.J. Const. (1947) Art. I, Para. 1 & 10).
POINT II: THE TRIAL COURT SUA SPONTE PURSUANT TO N.J.R.E. 404(B) AND N.J.R.E. 403 SHOULD HAVE EXCLUDED THE EXTREMELY PREJUDICIAL TESTIMONY OF OFFICER LOGAN'S IN WHICH HE INFORMED THE JURY OF MAIR'S OTHER BAD ACTS AND CRIMES. (U.S. Const. Amends. VI & XIV; N.J. Const. Art. I, Para. 10). (Not Raised Below).
POINT III: THE MOTION COURT REVERSIBLY ERRED IN FAILING TO RECUSE ITSELF FROM CONDUCTING THE TRIAL AND FROM PRESIDING OVER THE PROSECUTOR'S MOTIONS FOR EXTENDED TERMS BECAUSE OF THE IMPRESSION OF BIAS CREATED BECAUSE THE TRIAL COURT PREVIOUSLY HAD SERVED AS THE HUDSON COUNTY PROSECUTOR IN TWO OF MAIR'S PRIOR CONVICTIONS. (U.S. Const. Amends. VI & XIV; N.J. Const. Art. I, Para. 10).
POINT IV: THE TRIAL COURT'S REFUSAL TO ISSUE A CROSS-RACIAL IDENTIFICATION CHARGE IN THE CASE AT BAR IN WHICH IDENTIFICATION WAS CRITICAL CONSTITUTED REVERSIBLE ERROR. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).
POINT V: A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN AWARDED TO MAIR AFTER THE STATE RESTED. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para 10).
POINT VI: THE TRIAL COURT CONTRARY TO [N.J.R.E.] 403 REVERSIBLY ERRED IN PERMITTING A DEMONSTRATION IN WHICH EACH JURY WITHOUT A FOUNDATION AS TO THE DISTANCE OF THE SURVEILLANCE IN THE CASE AT BAR WAS PERMITTED TO LOOK THROUGH OFFICER LOGAN'S [BINOCULARS] AT ANY OBJECT WHICH THEY CHOSE IN THE COURTROOM TO SEE THAT THE [BINOCULARS] ENHANCED LOGAN'S VISION. (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).
POINT VII: MAIR'S TEN-YEAR PRISON TERM SENTENCE WITH FIVE YEARS OF PAROLE INELIGIBILITY WAS UNCONSTITUTIONAL, ILLEGAL AND MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, Mair also contends:
POINT I: THE COURT[']S FAILURE TO SANITIZE HIGHLY PREJUDICIAL AND INFLAMMATORY EVIDENCE, OR DELIVER ANY CURATIVE OR LIMITING INSTRUCTIONS, DEPRIVED DEFENDANT OF A FAIR TRIAL.
With the exception of the merger and sentencing issues as indicated at the beginning of this opinion, all of defendant's appellate contentions are without merit.
We begin by addressing defendant's contention that the prosecution improperly refused to extend a plea bargain to the co-defendant buyers Campbell and Williams, unless they testified against defendant, their alleged seller. At a hearing just prior to trial, the prosecutor informed the court that the State had extended to the two buyers "an offer [of probation] that was contingent on the seller, Tyrone Mair. . . . However, they were not able to make the contingency and, therefore, the State has required them to go to trial on this case." The prosecutor then indicated that because, all along, the two buyers were willing "to take the deal" (other than, presumably, the requirement that they incriminate Mair), and because the State was "forcing them to go to trial" the prosecutor was "not looking to put them in any worse position after trial than I would have been before trial." In other words the prosecutor appeared to be signaling the court and the co-defendants in advance that if they were convicted she would not be seeking a harsher sentence than probation.
Mair's counsel objected that "this is merely a tactic" designed to prevent Mair from subpoenaing the two buyers as witnesses at his trial. Mair's counsel hypothesized that if the two buyers had resolved their charges before Mair's trial and if he then subpoenaed them, the two would testify favorably to Mair. However, the buyers' attorneys both represented to the judge that, from the beginning, neither of their clients had any intention of testifying and they were never willing to testify either for or against Mair. The judge concluded that "I see no case law or anything that deprives the prosecutor of the ability to do what they're doing."
On this record, we find no merit in defendant's claim that the prosecutor should not have conditioned her plea offers to the buyers on their testifying against Mair. There is no evidence in this record that the prosecutor abused her discretion in structuring the terms of a plea offer. See State v. Gonzalez, 254 N.J. Super. 300, 309 (App. Div. 1992). There is no evidence that the buyers were made a plea offer contingent on their declining to give exculpatory evidence at Mair's trial. See State v. Fort, 101 N.J. 123, 130-31 (1985); State v. Hunt, 184 N.J. Super. 304 (Law Div. 1981).*fn1
We turn next to defendant's contention, raised for the first time on appeal, that the trial judge should have sua sponte precluded Logan from testifying about "other bad acts" by defendant. We consider this argument under the plain error standard since it was not raised at trial. See R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971). Defendant argues that Logan should not have been allowed to testify concerning his observation of defendant's first apparent transaction with the driver of the brown car and his observation of defendant apparently turning away the last potential customers of the day. Defendant contends that this testimony constituted "other crimes" evidence under N.J.R.E. 404(b),*fn2 which ordinarily cannot be admitted in evidence without a hearing under N.J.R.E. 104 to determine whether it satisfies the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992).
We conclude that the evidence defendant now seeks to challenge was not N.J.R.E. 404(b) evidence but rather was part of the res gestae of the crimes with which defendant was charged. As we held in State v. Ortiz, 253 N.J. Super. 239 (App. Div.), certif. denied, 130 N.J. 6 (1992), a case addressing Evidence Rule 55, the predecessor to N.J.R.E. 404(b), Evid.R. 55 does not apply if "the evidence with respect to defendant's conduct . . . [is] part of the total criminal event on the same occasion . . . [and therefore] part of the res gestae of the crimes." Moreover, "[c]onduct which is the subject matter of the action being tried cannot be excluded under Rule 55 because the rule is only a consideration with respect to conduct that occurred on other occasions." Biunno, Current N.J. Rules of Evidence, Comment 1 to Evid.R. 55, p. 532.
Here, the testimony concerning prior drug transactions observed by the detectives during surveillance constituted a part of the res gestae or a continuing course of conduct of defendant. The conduct referred to in the detectives' testimony occurred on the same occasion as that of the arrest. Specifically, the observed transactions occurred within 25 minutes to an hour immediately prior to defendant's arrest. Thus, the testimony concerned the same criminal event. As such, Evid.R. 55 does not apply and the testimony is admissible. Additionally, the testimony served to explain the context or setting of the case. The testimony was necessary and relevant to explain "the full picture of the conspiracy" involved. [Id. at 243-44 (citations omitted).]
See also State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).
Logan's testimony did not concern "other crimes." His testimony concerned conduct that was part and parcel of the very crime with which defendant was charged, namely the sale of drugs on the street corner on the afternoon of July 23, 2003. Cf. State v. Burden, ___ N.J. Super. ___ (App. Div. 2007) (slip op. at 13-19) (defendant's attempt to conceal a crime is not res gestae evidence). Moreover, the evidence was introduced for the entirely legitimate purposes of explaining why Logan focused his attention on defendant in the first place, the timing of defendant's arrest, and why defendant had no drugs on his person when he was arrested. Even if it were subject to analysis under N.J.R.E. 404(b) it would be admissible.
We find no error in the judge's decision to deny Mair's motion for a mistrial based on Logan's brief reference to defendants other than Campbell being detained on outstanding "warrants." The judge gave the jury an immediate and entirely adequate curative instruction. See State v. Winter, 96 N.J. 640, 646-47 (1984). After reading the entire trial transcript, we cannot conclude that this fleeting testimony "may have possibly affected the jury's deliberations." Id. at 645. See Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed. 2d 476, 484-85 (1968).
Defendant's recusal argument warrants little discussion beyond noting that the trial judge quite properly rejected it. As the former Hudson County Prosecutor the judge had "no direct involvement" in the prosecutions that gave rise to defendant's prior criminal convictions. State v. McNamara, 212 N.J. Super. 102, 108 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987). "[M]ere ministerial involvement . . . is not the sort of personal involvement that compels disqualification." State v. Harris, 181 N.J. 391, 511 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
We likewise find no error in the judge's decision not to give the jury a cross-racial identification charge. "A cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." State v. Cromedy, 158 N.J. 112, 132 (1999). Moreover, in a somewhat different context, we have recognized that trained police officers are less likely than lay witnesses to misidentify suspects:
There can be no dispute that a trained undercover police officer has heightened awareness of the need for proper identification of persons who engage in drug purveyance. [The officer] was a trained and experienced illicit-drug-activity investigator. As an undercover officer, he was not only trained to be observant but also had a strong incentive to be observant. [The officer] had significant opportunity to observe defendant . . . during the early evening hours of the July date in question.
[State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997).]
In this case, there was no significant issue as to Logan's identification of Mair as the drug seller. Logan was a trained police officer with twenty years of experience. He observed the entire set of transactions through high-powered binoculars. He explained why he focused his attention on Mair and provided a very detailed description of the person he observed. His description of Mair's clothing was actually corroborated by Mair's witness Felicia Stevens. Further, Logan transmitted his description of the suspect to the officers whom he directed to carry out the arrest, at a time when Logan still had the suspect under observation. On this record, the likelihood that the police arrested the wrong person was minimal, and under all the circumstances, a cross-racial identification charge was not necessary.
Mair's remaining arguments concerning his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
As discussed at the beginning of this opinion, defendant's convictions for CDS distribution in a school zone, N.J.S.A. 2C:35-7, and in a public park zone, N.J.S.A. 2C:35-7.1, must be merged. See State v. Parker, supra, 335 N.J. Super. at 420, 426.
Moreover, since the judge sentenced defendant to an extended term which was above the then-presumptive sentence, we are constrained to remand based on the Supreme Court's decision in State v. Thomas, supra, 188 N.J. at 152, which was decided after the sentence was imposed in this case. Since we are remanding for reconsideration of the sentence as set forth in Thomas, id. at 154, it would be premature to consider defendant's additional arguments concerning the length of his sentence. On remand the judge shall also reconsider and clarify the offense or offenses for which an extended-term sentence is being imposed as that is not clear from the judgment of conviction. See N.J.S.A. 2C:44-5a(2).*fn3
Affirmed as to the conviction, remanded as to the sentence.