October 4, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID FORBES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-08-0040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Coburn, Fuentes and Grall.
Defendant, David Forbes, was tried before a jury on an indictment returned by a state grand jury. He was found guilty of second degree conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2; and third degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1), and received a prison term of seven years. On appeal, he makes the following arguments:
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A DRIVER HEARING REGARDING ADMISSION OF AUDIO TAPES.
THE JUDGE ERRED BY ALLOWING TRANSCRIPTS TO BE USED TO AID THE JURY IN UNDERSTANDING THE AUDIOTAPES.
DEFENSE COUNSEL'S FAILURE TO MAKE A TIMELY MOTION TO SUPPRESS THE SURVEILLANCE AUDIOTAPES DENIED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (Not raised below).
A. DEFENSE COUNSEL'S FAILURE TO MAKE A SEVERANCE MOTION DENIED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; (Not raised below).
B. THE COURT ERRED IN NOT SEVERING THE DEFENDANTS (Not raised below).
PROSECUTOR MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below).
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
THE FACT FINDING OF THE JURY WITH RESPECT TO CONSPIRACY AND DISTRIBUTION OF CDS WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not raised below).
THE TRIAL JUDGE ERRED IN OVERRULING OBJECTIONS TO ADMISSION INTO EVIDENCE OF
A. S-12 A-E (AUTHORIZATION RECORDS)
B. S-16 C-F (CALL DETAIL RECORD)
THE SENTENCE WAS EXCESSIVE.
After carefully considering the record and briefs, we are satisfied that all of the defendant's arguments are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). Nevertheless, we add the following comments. The State Police conducted this investigation into a national marijuana distribution conspiracy from May to August 2001. Over 400 intercepted telephone calls concerned the sale of marijuana. Defendant, a native Jamaican, was overheard speaking on numerous occasions with a number of different people about the sale and purchase of substantial quantities of marijuana. For example, toward the end of the investigation he was recorded having the following conversations: on July 31, he told a man that he had marijuana for sale; on August 1, he called his wife looking for several bags of marijuana he had left in their bedroom, and later called a man asking about the availability of three pounds of marijuana that he wanted to buy; on August 5, he spoke to a man who wanted to buy four pounds of marijuana; on August 6, he agreed to meet to purchase some marijuana; and on August 7, he received a call from a woman who wanted to purchase marijuana, and later arranged for delivery of the drug to the woman's house, and spoke to another woman, agreeing that he would bring marijuana to the first woman.
On August 9, the State Police executed a search warrant at defendant's Irvington house, finding, among other things, a handgun and loaded magazine; $1,000 in cash, and about three pounds of marijuana, all located in defendant's bedroom. Defendant admitted to the police that he had received the marijuana from a man he identified as "Puppy."
Respecting the arguments in defendant's first point, we affirm substantially for the reasons expressed by Judge Casale. In short, defense counsel did not request a hearing on the admissibility of the sound records until the trial was underway, which was too late, R. 3:9-1(d), and resulted in a waiver of defendant's right. State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987). Furthermore, defendant's claim that the tapes should have been excluded because of partial inaudibility is contrary to law. State v. Dye, 60 N.J. 518, 531 (1972). While some of the tapes were inaudible, the audible portions clearly showed defendant's guilt, and the inaudible portions could not possibly have caused any prejudice. R. 2:10-2.
Under his second point, defendant contends that the judge erred in allowing the jury to use transcripts of the recorded conversations while they listened in court, but that approach has been endorsed heretofore. State v. Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div. 1975), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed. 2d 120 (1973). Furthermore, the judge did not let the jury take the transcripts into the jury room during deliberation, and he firmly instructed that their conclusions about the conversations had to be based on what they heard on the tapes.
Under his third point, defendant claims his counsel was ineffective for not having made a timely motion for Driver hearing. Given the evidence against defendant apart from the tapes, and the obvious admissibility of the tapes themselves, we are satisfied that defense counsel did not err. Even if he did, the error had no effect on the outcome of the case. State v. Preciose, 129 N.J. 451, 463-64 (1992).
Under his fourth point, defendant argues that his trial should have been severed from that of his two co-conspirators, essentially because a disproportionate amount of the evidence was directed against them, and the case was complex. State v. Brown, 118 N.J. 595 (1990), is the controlling precedent, and this trial was clearly consistent with that case. Indeed, this is precisely the kind of case where a joint trial is preferable because the crimes arose from the same series of acts, and much of the same evidence is needed to prosecute each defendant. Id. at 605.
Under his fifth point, defendant complains about the prosecutor asking questions to the lead detective as if he had qualified as an expert in Jamaican Patois. But the judge corrected the prosecutor, and appropriately charged the jury on this point, and so no possible prejudice could have arisen. Nor do we accept defendant's claim that the prosecutor's express desire to play a particular tape if defendant testified caused any prejudice. First, the judge did not definitively rule that the tape would be admissible; second, the defendant never testified during the trial, and there is no evidence that he made that decision because of any fear about the playing of the tape.
Defendant's sixth point, that he was entitled to a judgment of acquittal, relies on his contention that the admission of the tapes and transcripts was error. Since we have rejected the underlying arguments, we need not comment further on this point.
Defendant's seventh point, that he was entitled to a new trial, is utterly unsupported by the record and the law.
Defendant's last point is that his sentence was excessive. Given the substantial nature of this conspiracy, the quantity of drugs found in defendant's house, and the extent of his involvement, we can see no basis for saying that the sentence, which was in the middle of the range for the second degree offense, constituted an abuse of discretion. Our duty is to affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
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