June 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCMANE J. (JOSEPH) DAZILME, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Ind. No. 02-09-1111.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2007
Before Judges Weissbard and Lihotz.
A Union County grand jury returned an indictment charging defendant Lucmane Dazilme and co-defendant Marcus Byron with multiple counts of distribution and possession of a controlled dangerous substance (CDS).*fn1 Defendant appeals from his February 23, 2004 conviction, following a jury trial, and the sentence imposed for third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and b(3) (count six); and second-degree possession with intent to distribute cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count seven). After merging counts five and six into seven, a sentence of nine years incarceration was imposed, with a four-year period of parole ineligibility. Applicable fines and assessments, and a six-month suspension of defendant's driving privileges was also ordered. We affirm defendant's convictions; however, we remand for reconsideration of the defendant's sentence.
The facts are taken from the trial record. On May 1, 2002, Elizabeth police detectives Kevin McDonough and Larry Smith were in an unmarked police vehicle, patrolling an area near Jefferson Park. McDonough saw an individual in the middle of the park, whom he recognized as defendant, and Smith pulled the car over to the side of the road. The officers watched as a man and a woman approached defendant. The three of them walked together to an apartment building located at 444 Jefferson Avenue, across the street from the park. McDonough saw defendant reach into a bush next to the apartment building's stoop, and withdraw a bag. He then took a smaller item out of that bag and gave it to the woman, receiving in exchange, an object McDonough testified "looked like currency." The man and woman left; defendant remained on the building's stoop.
Two Hispanic men then approached defendant, and a similar transaction took place: defendant "retrieved a bag out of the same bush next to the stoop, took something out of the bag and handed it to these two males," who gave him what appeared to be money. At that point, McDonough called for backup; Officers Daniel J. Merten and Raymond Smith, and Sergeant William Pinho arrived.
The detectives parked behind 444 Jefferson Avenue, just as defendant was approached by an unidentified man and co-defendant Marcus Byron, who arrived on a bicycle. The detectives, wearing civilian clothes, walked toward the building on foot. They could see the courtyard, where defendant and Byron were engaging in what was believed to be a hand-to-hand drug transaction, similar to the two exchanges that the detectives had observed earlier. The back-up officers arrived, and defendant "took[-]off running" directly toward the approaching detectives. The detectives grabbed defendant and placed him under arrest. Byron, "on his bicycle[,] took[-]off in the opposite direction and was chased by the [back-up] officers." McDonough retrieved a bag from the bushes, which contained twenty-eight vials, with two different color caps, of cocaine, and one Ziploc bag of crack cocaine.
At trial, the State presented the expert testimony of Lieutenant Guy M. Steward of the Union County Prosecutor's Office, who was qualified as an expert in the methods of distribution and packaging of street-level narcotics. Lt. Steward offered his opinion, based on various facts similar to the instant case, posed in a hypothetical question, and concluded that in the incident described, the vials of cocaine were possessed with intent to distribute.
Byron testified on his own behalf. He stated he was a purveyor of scented oils. When he encountered defendant, whom he knew from the neighborhood, he inquired whether defendant had an interest in purchasing the vials of oil, which he presented to defendant in his hand.
Defendant raises the following arguments on appeal for our consideration:
DEFENDANT WAS PREJUDICED BOTH BY QUESTIONS POSED BY THE PROSECUTOR DURING THE VOIR DIRE OF THE STATE'S EXPERT WITNESS AS WELL AS BY THE HYPOTHETICAL QUESTION POSED, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION (Not Raised Below).
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY[,] THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED (Not Raised Below).
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.
THE DEFENDANT'S SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIG[A]TING FACTOR. Addressing defendant's arguments which object to the use of Steward's expert testimony, we note that the failure to have interposed an objection during trial, limits our review to a search for plain error, Rule 2:10-2, which we determine is not present here. See State v. Nesbitt, 185 N.J. 504, 516 (2006).
The developed hypothetical question focused on patterns of interaction by persons distributing illicit street narcotics, such as the use of a stash and the markings on vials designating certain quantities of drugs. Steward's testimony concerned the packaging, sale, and purchase of illegal drugs, which is outside an ordinary person's realm of experience. Id. at 507; see also N.J.R.E. 702. We determine no disregard for the parameters set forth in State v. Odom, 116 N.J. 65, 81-82 (1989), as the use of hypothetical questions regarding the possession and distribution of illegal narcotics occurred in the limited questioning of Lt. Steward. Contrary to defendant's suggestion, we also disagree that the voir dire was improper and that during Steward's testimony, he, at no time, offered his opinion as to defendant's actions, as prohibited by State v. Baskerville, 324 N.J. Super. 245, 263-64 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000); see also State v. Boston, 380 N.J. Super. 487, 492-93 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006). We conclude that the trial judge correctly applied his discretion to permit the expert testimony regarding the drug transaction.
Additionally, in charges to the jury the trial judge instructed the jury as to credibility and the weight to be given to an expert's opinion and, further, advised that only the jury could determine whether defendant had been proven guilty beyond a reasonable doubt, based upon the evidence presented during trial. Odom, supra, 116 N.J. at 80; State v. Summers, 176 N.J. 306, 317 (2003). We determine no error is presented.
Defendant also contends that the State provided insufficient evidence for a reasonable jury to conclude, beyond a reasonable doubt, that defendant possessed CDS with intent to distribute, because "there was no direct testimony that drugs [or currency] were exchanged with the defendant." Trial evidence included the detectives' testimony of their observations of defendant engaged in what they determined to be a series of drug-related transactions; the evidence seized by the detectives, including the bag of vials retrieved from the bush by the building stoop; Officer Merten's testimony regarding the apprehension of defendant and Byron, which included finding a vial of cocaine in Byron's knapsack; and the expert's description of street drug transaction practices and his opinion after consideration of a comparable hypothetical scenario. We conclude that a review of the direct or circumstantial evidence, "giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967); see also State v. Samuels, 189 N.J. 236, 249 (2007); State v. Brown, 80 N.J. 587, 591 (1979)).
Finally, we examine defendant's sentence. The State moved for a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6f. "[The statute] operates as a sentence enhancer on the basis of a judicial fact-finding that is authorized under Apprendi*fn2 and Blakely*fn3 to wit, the finding of prior convictions." State v. Thomas, 188 N.J. 137, 151-52 (2006). The trial court correctly found that the provisions of N.J.S.A. 2C:43-6f do not provide for mandatory imposition of an extended term after conviction for second-degree possession of CDS, with the intent to distribute within 500 feet of a public park under N.J.S.A. 2C:35-7.1.
The sentencing judge found that aggravating factors three (risk that the defendant will commit another offense), six (extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and nine (need for deterring defendant and others from violating the law) outweighed the non-existent mitigating factors. See N.J.S.A. 2C:44-1. Defendant was sentenced to nine years incarceration with a four-year period of parole ineligibility, which exceeded the former seven-year presumptive sentence for a second degree offense. See N.J.S.A. 2C:44-1f(c).
We vacate defendant's sentence and remand for resentencing for two reasons. First, by reason of the Supreme Court's opinion in State v. Natale, 184 N.J. 458 (2005), defendant is entitled to a reconsideration of his sentence because the base term imposed exceeds the former presumptive term. Second, the requisite findings, pursuant to N.J.S.A. 2C:43-6b, were not made to sustain the parole ineligibility period; as we have noted, N.J.S.A. 2C:43-6f is inapplicable.
We determine that any remaining issues presented in defendant's appeal, not specifically addressed, are lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Accordingly, we affirm the convictions and remand for reconsideration of the sentence.