June 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCMANE DAZILME A/K/A LUCMANE ZILME, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Ind. No. 02-02-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2007
Before Judges Weissbard and Lihotz.
Defendant, Lucmane Dazilme, appeals from his August 1, 2003 conviction, following a jury trial, for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a park, N.J.S.A. 2C:35-7.1, and the ordered sentence of four years incarceration. Defendant's conviction for fourth-degree possession of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12), was merged into the third-degree offense. Applicable fines, assessments and a six-month suspension of his driver's privileges were imposed.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRED IN PERMITTING DETECTIVE STEWARD TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS (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).
DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.
THE COURT ABUSED HIS DISCRETION IN ALLOWING PICTURES INTO EVIDENCE WHERE THEY WERE INFLAMMATORY AND PREJUDICED THE DEFENDANT.
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIG[A]TING FACTOR.
We reject defendant's arguments and affirm his conviction and sentence.
In the late evening of November 13, 2001, Elizabeth police officers Timothy Geddes and John Mayer were positioned in a surveillance location in a high narcotics trafficking area. Using binoculars, the officers observed defendant sitting on a slide in Jefferson Park, where he was talking to Masterson Cadestin. Mayer testified that he observed a white male approach defendant with his fist closed. Defendant accepted an object from this third-party, then reached down to the ground, picked-up something and passed that object to the third-party. The third-party took the object and left the park. Defendant and Cadestin then left the park, heading in a different direction.
The officers, believing the interaction between defendant and the third-party was a hand-to-hand drug sale, left the surveillance location, entered their car and drove down Madison Avenue toward defendant. From their car, the police watched defendant and Cadestin walk through the park and turn onto the street. When the car was within ten feet of defendant, each officer stated that he saw defendant drop items on the ground, duck behind a parked car, and begin to crawl down the street in an apparent effort to avoid detection. Mayer stopped defendant while Geddes arrested Cadestin. Once Cadestin was secured in the police vehicle, Geddes retrieved the items defendant had dropped, which were later determined to be eleven green Ziplock bags containing marijuana. Defendant was placed under arrest. The search incident to arrest recovered two additional green Ziplock bags of marijuana, and $440 in cash.
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, packaging, and transport of street-level narcotics. Lt. Steward offered his opinion, in response to a series of hypothetical questions based on facts similar to those of the instant case, that the bags of marijuana were possessed with intent to distribute.
Defendant testified, refuting the facts as expressed by the police. Also, Cadestin appeared as a defense witness. Specifically, defendant and Cadestin denied they were approached by a white male while they talked in the park. Defendant stated he was not selling drugs and had done nothing wrong when the police arrested him. He asserted the police placed something in his pocket, which he later learned was marijuana.
On June 16, 2003, the jury returned a guilty verdict on both counts of the indictment. During sentencing, held on August 1, 2003, the trial judge found no mitigating factors, and applied aggravating factors three ("risk that the defendant will commit another offense") and nine ("need for deterring the defendant and others from violating the law"). See N.J.S.A. 2C:44-1(3) and (9).
Defendant now challenges the necessity of the expert's testimony on illicit street drug distribution practices, arguing that Lt. Steward's testimony prejudicially addressed the ultimate issue of defendant's guilt. The failure to have interposed an objection to the expert's testimony during trial limits our review to a search for plain error, R. 2:10-2, which we determine is not present here. See State v. Nesbitt, 185 N.J. 504, 516 (2006).
Contrary to defendant's suggestion, we determine no disregard for the parameters for the use of hypothetical questions posed to an expert regarding the possession and distribution of illegal narcotics, as initially set forth in State v. Odom, 116 N.J. 65, 81-82 (1989). The use of hypothetical questions remains "an accepted means by which the specialized knowledge of an expert may be placed before the laypersons of the jury in order to inform them about the nuanced techniques utilized by drug peddlers who seek to shield themselves from liability by concealing or obfuscating their drug possession and distribution activities." Nesbitt, supra, 185 N.J. at 514; See also State v. Summers, 176 N.J. 306, 317 (2003); State v. Berry, 140 N.J. 280, 301 (1995); Odom, supra, 116 N.J. at 81-82.
The jury was asked to consider various factors when determining whether defendant possessed the CDS with intent to distribute. These factors, such as the amount and packaging of the drugs, are the type of information "beyond the ken of an average layperson." Nesbitt, supra, 185 N.J. at 507. The general background information provided on these issues by Lt. Steward is the kind of information which may properly be provided by an expert witness. Ibid. At no time did Lt. Steward offer opinion other than in a hypothetical context; he never assessed defendant's actions, as prohibited by State v. Baskerville, 324 N.J. Super. 245, 261-63 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000); See also State v. Boston, 380 N.J. Super. 495 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006).
The suggestion that Lt. Steward's opinion as presented on direct examination was "based on incomplete facts" is without merit. The comprehensive cross-examination of Lt. Steward raised the factual variations omitted by the State during direct testimony, and supplied the jury with "other viable scenarios" for consideration, including that the unidentified white male sold CDS to defendant for defendant's personal use. We determine no error occurred and conclude that the trial judge correctly applied his discretion to permit the expert's testimony.
Defendant's sufficiency of the evidence argument, see State v. Reyes, 50 N.J. 454, 459 (1967), is also rejected. Defendant's contention is bottomed on the fact that police did not pursue or arrest the unidentified white male suggested to have purchased CDS from defendant, and therefore, the State could not "confirm that CDS were [sic] purchased from the defendant" and "no witness . . . validate[d] the distribution charge." Defendant was not charged with distribution; he was charged with intent to distribute. The State's proofs, including the officers' observations and the opinion offered by the expert, which pertained to the quantity of drugs and the manner of packaging, were sufficient for a reasonable jury to find guilt of the charge involved beyond a reasonable doubt. Reyes, supra, 50 N.J. at 458-59. In any event, we note that defendant never moved for a new trial, arguably precluding appellate review. R. 2:10-1; State v. Burr, __ N.J. Super. __ (App. Div. 2007); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973).
Defendant asserts error in the admission of photographs of the park, alleging undue prejudice resulted because the photographs included children. A defendant must meet a high standard to exclude photographic evidence, as the admissibility of photographs rests in the discretion of the trial court, and the exercise of its discretion will not be reversed in the absence of palpable abuse. State v. Bey, 112 N.J. 123, 182 (1988); State v. Thompson, 59 N.J. 396, 420 (1971); see also N.J.R.E. 403. "Palpable abuse exists only where the 'logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture.'" Bey, supra, 112 N.J. at 182 (quoting State v. Smith, 32 N.J. 501, 525 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed. 2d 367 (1961).
The record reflects, in making his decision, Judge Peim noted that the children were barely identifiable in the photographs; further, the trial judge allowed defendant to point out that there were no children in the park at the time of the incident. Given the thoughtful and considered nature of his decision, and the improbability of prejudice, we find no shortcoming in the exercise of discretion by Judge Peim on this issue.
Lastly, defendant claims that the sentencing court abused its discretion in sentencing. We disagree. The sentence imposed, which was four years incarceration, was within the statutory range for the offense, N.J.S.A. 2C:43-6, and did not exceed the former presumptive term. See State v. Natale, 184 N.J. 458 (2005).
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