July 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH ATKINSON, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JIHAD THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-08-00792 and 04-03-0792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2007
Before Judges Parker and Yannotti.
In these back-to-back appeals, defendants Keith Atkinson and Jihad Thomas appeal from judgments of conviction entered on December 17, 2004 after a jury found them guilty of third degree conspiracy, N.J.S.A. 2C:5-2; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); and third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7.
After the appropriate mergers, Atkinson was sentenced to an extended term of nine years subject to four years parole ineligibility, and Thomas was sentenced to an extended term of seven years subject to three years parole ineligibility.
The charges against these defendants stemmed from a routine surveillance operation in Newark. Officers Luigi Corvino and Pedro Torres were in plain clothes in an unmarked vehicle as they drove on South Eleventh Street. As they were driving past an abandoned building at 360 South Eleventh Street, they saw three men -- later identified as Atkinson, Thomas and co-defendant Brown -- "hanging out" near the building and established a point of surveillance approximately fifty to sixty feet from the trio. The officers observed Thomas sitting on the front steps of 360 South Eleventh Street, and Brown standing by a fence ten to fifteen feet from Thomas. The officers saw an unknown man in a red cap approach Brown and give him money. Brown directed the individual to Thomas, who stood up, took a clear plastic bag from his pocket, took an item from the bag, handed it to the unknown man and put the bag back in his pocket. The officers attempted to arrest the unknown man but he escaped.
After the unknown man walked away from 360 South Eleventh Street, Brown walked across the street to 361 South Eleventh Street, where Atkinson was pacing back and forth and handed him the money. At that point, the officers moved forward and arrested the three men. Eighty-four vials of cocaine and $55 were recovered from Thomas's pocket, $199 was recovered from Atkinson and nothing was recovered from Brown.
Atkinson produced Ronder Prophet as a witness in his defense. She testified that at 8:30 p.m. on the night in question, Atkinson was driving by and asked Prophet where his girlfriend was. Prophet told him she had gone to the store and he pulled over and got out of the car. He walked with her to "TTs" and they sat on the porch to talk. Prophet testified that she did not see co-defendant Brown at all. The only person who came by to speak with her and Atkinson was Thomas. As they were sitting on the porch, the police arrived and arrested Atkinson.
In Atkinson's appeal, he argues:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING APPELLANT TO AN EXTENDED TERM SENTENCE
In a pro se supplemental brief, Atkinson further argues:
THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE DETECTIVE CORVINO
(A) THE TRIAL COURT ABUSED ITS DISCRETION BY APPLYING THE "SURVEILLANCE LOCATION PRIVILEGE" TO THIS CASE
(B) THE LIMITATION ON CROSS-EXAMINATION VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ISSUE A CURATIVE INSTRUCTION CONCERNING THE STATE'S BURDEN OF PROOF AFTER THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENSE WITNESS RONDER PROPHET. (Not Raised Below)
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY BY INSTRUCTING THE JURORS TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE." (Not Raised Below)
THE AGGREGATE NINE (9) YEAR CUSTODIAL SENTENCE WITH FOUR (4) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF THE COURT'S DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO IMPOSE AN EXTENDED TERM SENTENCE
(B) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING TWO EXTENDED TERM SENTENCES
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ARTICULATE WHY IT IMPOSED A FOUR (4) YEAR PERIOD OF PAROLE INELIGIBILITY
(D) IMPOSITION OF THE NINE (9) YEAR BASE EXTENDED TERM SENTENCE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE
We turn first to the issues raised in Atkinson's appeal. At the close of testimony, Atkinson moved for acquittal. The motion was denied and he argues here that the trial court erred in denying that motion. After carefully considering the record, we are satisfied that there is no merit to this argument. R. 2:11-3(e)(2). The State clearly adduced sufficient evidence to present the case to a jury. State v. Spivey, 179 N.J. 229, 236 (2004).
Atkinson argues in both counsel's brief and his own that the trial court erred in sentencing him to an extended term in violation of his constitutional rights as recognized in State v. Natale, 184 N.J. 458 (2005). The State agrees. Accordingly, we remand for resentencing consistent with Natale and State v. Thomas, 188 N.J. 137 (2006).
In his pro se supplemental brief, Atkinson argues that the trial court abused its discretion in limiting his ability to cross-examine Detective Corvino regarding the surveillance location. At a pre-trial in camera hearing, Corvino testified that the surveillance location is still being used and that officers and residents in that location would be in danger if the location were disclosed. Corvino described the surveillance site, indicating that it was approximately fifty to sixty feet from the area where he first made his observations involving defendants. He testified that the lighting was good and that there were no impediments to his observations.
The disclosure of surveillance sites has been repeatedly litigated and our courts have consistently held that trial courts must determine whether the exact location of a surveillance point is privileged information, which should not be disclosed unless it is crucial to the defense. See, e.g., State v. Garcia, 131 N.J. 67, 74-75 (1993); State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995); N.J.S.A. 2A:84A-27. Here, the court undertook the necessary in camera hearing and defendant failed to demonstrate that the surveillance location was crucial to his defense. The trial court appropriately exercised its discretion and allowed the State to exercise the privilege. See Garcia, supra, 131 N.J. at 81.
In his pro se supplemental brief, defendant argues for the first time on appeal that the trial court (1) abused its discretion in failing to give a curative instruction concerning the State's burden of proof after the prosecutor's cross-examination of defense witness Prophet; and (2) erred in instructing the jurors to consider defendant's "guilt or innocence." Neither of these issues was raised at trial and they are subject to the plain error rule. R. 2:10-2. We have carefully considered the record in light of these arguments and we are satisfied there was no plain error. R. 2:11-3(e)(2).
Thomas argues in his appeal:
DEFENDANT'S CONSPIRACY CONVICTION MUST BE REVERSED BECAUSE THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
DEFENDANT'S SENTENCE IS EXCESSIVE
A. DEFENDANT'S EXTENDED TERM SENTENCE AND PAROLE DISQUALIFIER MUST BE RECALCULATED TO COME INTO COMPLIANCE WITH NATALE AND THOMAS
B. DEFENDANT'S SENTENCE MUST BE MODIFIED IF THE COURT REVERSES HIS CONSPIRACY CONVICTION
Thomas contends that his conviction on the conspiracy count is against the weight of the evidence. He did not move for a new trial, but stated on the record that he wished to join Atkinson's motion for a new trial. Atkinson argued that the conspiracy charge was based on "one observation from the officer" that Atkinson "had some sort of contact or interaction with . . . Thomas who was ultimately convicted . . . as a person who was found with . . . narcotics on him." Atkinson argued that "[t]he only link that the State made as far as observation through the police officer was through Mr. Atkinson and [Brown,] the individual that was found not guilty."
The trial court denied the motion stating, "[a]s far as the evidence, it spoke for itself and there certainly was enough to convict . . . Mr. Atkinson and Mr. Thomas. Though, Mr. Brown was more or less a victim of [Atkinson and Thomas] some elder people who used him in this scheme."
In this appeal, Thomas argues "that the evidence was insufficient to establish the requisite elements of an agreement to commit a crime or an overt act." We have carefully considered the record in light of Thomas's argument and we are satisfied that it lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Nevertheless, we add the following comments. A person may be convicted of conspiracy to commit a crime if he intended to promote or facilitate the commission of that crime. State v. Bridges, 133 N.J. 447, 466-67 (1993). With respect to a conspiracy charge, "[a]ttention is directed . . . to each individual's culpability by framing the definition [of conspiracy] in terms of the conduct that suffices to establish the liability of any given actor, rather than the conduct of a group of which he is charged to be a part." State v. Del Fino, 100 N.J. 154, 160 (1985). In other words, the evidence of each defendant's conduct, along with evidence that they were working in concert, was sufficient to sustain conspiracy convictions against each of them, irrespective of Brown's acquittal on the charge.
With respect to Thomas's sentencing argument, we agree that the matter must be remanded for resentencing in accordance with Natale and Thomas.
To summarize our decision in these back-to-back cases, we affirm the convictions for both Atkinson and Thomas. We reverse and remand both matters for resentencing in accordance with Natale and Thomas.
Affirmed in part; reversed and remanded in part.
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