October 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESSIE D. CHAMBERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-10-1261-I.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Skillman*fn1, Winkelstein and Yannotti.
In this appeal, one of the issues we are called upon to decide is whether a museum falls within the definition of a public building under N.J.S.A. 2C:35-7.1, thus elevating a third-degree crime of possession with the intent to distribute a controlled dangerous substance to a second-degree offense when the offense is committed within 500 feet of a public building, if the museum does not have regular and consistent hours and is only open to the public upon request. We conclude that under such circumstances a museum nevertheless qualifies as a public building.
In October 2003, a Middlesex County grand jury indicted defendant Jessie Chambers, charging him with the following crimes: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public building, a museum, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count four).
On November 30, 2004, a jury convicted defendant of all charges. At sentencing, the court merged counts one and two into count three, and on count three, the court imposed a six-year, six-month prison term with three years and three months of parole ineligibility. On count four, the court imposed a five-year prison term, concurrent with the sentence on count three.
On appeal, defendant raises the following legal points for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS THAT THE TESTIMONY PRESENTED BY THE STATE THROUGH INVESTIGATOR KEVIN MORTON EXCEEDED THE PERMISSIBLE SCOPE OF EXPERT TESTIMONY. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS COUNT IV SINCE THE STATE FAILED TO DEMONSTRATE THAT THE ALLEGED DRUG ACTIVITY TOOK PLACE WITHIN 500 FEET OF [A] PUBLIC BUILDING SINCE THE BUILDING IN QUESTION DID NOT CONSTITUTE A PUBLIC BUILDING.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE WITHIN A SCHOOL ZONE INTO COUNT IV CHARGING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE WITHIN 500 FEET OF CERTAIN PUBLIC PROPERTY. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find no merit to defendant's arguments in points one, two, three and five. We agree with his position in point four that the court should have merged counts three and four. Consequently, we vacate the sentence on count four and remand to the Law Division to merge the convictions on counts three and four and amend the judgment of conviction. Otherwise, we affirm defendant's conviction and sentence.
We glean the following facts from the trial record. On August 8, 2003, New Brunswick Police Officer Michael Yurkovic, Detective Michael Sutton and Lieutenant Paul Schuster were patrolling the Remsen Avenue area of New Brunswick in plain clothes in an unmarked mini-van. Shortly after midnight, as they approached the intersection of Remsen Avenue and Seaman Street, which was within 1000 feet of the Paul Robeson School and within 500 feet of the New Brunswick Fire Museum (the Museum), they observed defendant with another man, later identified as Eugene Napolitano. The pair were engaged in what appeared to be a drug transaction.
Defendant had his right hand cupped and extended in front of him. Napolitano looked toward defendant's palm, while handing him money. As the officers turned onto Seaman Street, defendant glanced in the direction of their vehicle. Napolitano pulled his hand back and dropped the money. Defendant dropped the contents of his cupped hand. Napolitano turned and walked up Seaman Street away from the intersection. Defendant turned and walked in the opposite direction, toward the intersection of Remsen and Seaman.
Yurkovic and Sutton got out of the mini-van. Yurkovic caught defendant and arrested him, and he took defendant back to the scene of the transaction, where Yurkovic recovered nine individually-wrapped clear plastic bags containing crack cocaine from the sidewalk. His search of defendant's pants pocket yielded $196, consisting of four twenty-dollar bills, seven ten-dollar bills, four five-dollar bills, and twenty-six one-dollar bills.
Sutton caught Napolitano and asked him to open his hands. Napolitano complied, and Sutton removed five quarters from his hand. Schuster collected nine dollars off the sidewalk.
At trial, the State offered the testimony of Investigator Kevin Morton, as an expert in narcotics offenses. To establish that defendant possessed the cocaine with the intent to distribute it, the assistant prosecutor asked Morton a hypothetical question that mirrored the facts of the case. After providing the hypothetical, the prosecutor asked Morton if he could render an opinion whether the cocaine found at the scene was possessed for personal use or possessed with the intent to distribute. Morton replied:
A: Based on the hypothetical, you just presented to me, it appears that the bags of suspected cocaine, that are in front of me, [were] used as a sale. This was not a personal use. These bags don't appear to be used for personal use. The hypothetical that you just gave me, and that in conjunction with police observations, and the money that is seized from the defendant in this case, I would say, in my professional opinion, this was a possession with intent to distribute transaction.
Q: What specifically about the money adds to your opinion?
A: The denominations of the money on the person that was arrested at this point, it has been my experience to seize money like that from individuals after the observations have been made, and the arrest has gone forth, it is a business. And this is the way the money is broken down. A person comes to make a purchase, and he makes a purchase from somebody who sells him CDS. And usually, with my experience, this is what happens. The money has been seized from the person selling and the bags also.
Q: Anything about the specific denominations of the money?
A: Well, it seems here the money was broken down, separated. I would take that to be, you know, it's odd amounts on the street. A lot of times there are odd amounts. A lot of times there are drug users who don't deal in straight zeros. So, that would explain the 196, you know.
Q: What about the fact that an individual, who is seen, who dropped nine dollars, and had five quarters in his hand? Anything about the five quarters and the nine dollars?
A: Well, it would appear to me, they were trying to make an even ten. On the street, ten dollars for a bag of cocaine, that is not uncommon.
Q: Now, what's marked, what's there in front of you, based on your experience, how much the drugs, the little bags of crack cocaine, would sell for on the streets of New Brunswick? What's your experience as to how much that would be for one of those?
A: My experience, looking at these bags here, they would be ten dollar bags.
In support of the charge that defendant was selling cocaine within 500 feet of a public building, the Museum, the State offered the testimony of Deputy Fire Chief William Bradley. Bradley testified that the Museum is owned and maintained by the City of New Brunswick. Though the Museum does not have regular operating hours, the public is provided tours of the Museum by appointment, and several groups have taken the tour. The State introduced a map showing the location of the building and designating the building as a public building.
Against this factual background, we first turn to defendant's argument that Investigator Morton's characterization of the transaction as a "possession with intent to distribute transaction" exceeded the proper scope of his testimony. In other words, defendant claims Morton improperly commented on his guilt. Though defendant raised this issue in his motion for a new trial, he did not object at the time Morton testified. Consequently, we address this issue under the plain error standard; we will not reverse unless defendant demonstrates that the error was "clearly capable of producing an unjust result."
R. 2:10-2. The effect of the error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We find no error.
The determination of facts to establish the guilt of a defendant is "a function reserved exclusively to the jury." State v. Odom, 116 N.J. 65, 77 (1989). Thus, "an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper." Ibid. Nonetheless, testimony concerning drug distribution may be "reasonably required to assist the jury in understanding the evidence and determining the facts." Id. at 81. Even if the opinion is expressed in terms of ultimate issues of fact, that is, "whether drugs were possessed with the intent to distribute," an expert's opinion is appropriate as long as it does not express a view that the defendant was guilty of the crime charged. Ibid. Furthermore, "an expert opinion that the drugs were held for distribution, even though expressed in words that are similar to the statutory definition of the offense, does not rise to the level of an assertion that the defendant committed the crime charged or is guilty of the statutory offense." Ibid. As the New Jersey Supreme Court explained in State v. Nesbitt, 185 N.J. 504, 515 (2006), the Court in Odom provided the State with flexibility to educate jurors on the latest tactics designed by drug dealers to shield themselves from responsibility for their illegal actions. Expert testimony, including opinions that embrace ultimate issues, is permitted when the testimony has value in assisting the jury's understanding of facts and their significance, and when the trial court finds that that testimony is not unduly prejudicial.
Here, applying these legal standards to the facts, we conclude that the court did not err in admitting Morton's testimony. Morton explained the significance of the evidence to the jury. Though his comments on whether the cocaine was possessed with the intent to distribute may have embraced the ultimate issue to be decided by the jury, he expressed his opinion in response to a hypothetical question containing evidence that paralleled the facts of the case. His testimony, based on his special knowledge and experience and "about the characteristics that served to identify drugs that are being held for sale or distribution," was of assistance to the jury. Odom, supra, 116 N.J. at 80-81. Morton tied the money the officers found directly to the sales price of cocaine and to the manner in which cocaine is normally distributed on the streets. This testimony was beyond the jurors' common knowledge. His answer to the hypothetical question was not an expression of his opinion of defendant's guilt.
Next, we address whether the Museum falls within the definition of a public building so as to satisfy a critical element of N.J.S.A. 2C:35-7.1, that defendant possessed a controlled dangerous substance within 500 feet of a public building with the intent to distribute. The pertinent portion of the statute reads as follows:
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance . . . while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana. [N.J.S.A. 2C:35-7.1a.]
A public building is defined as "any publicly owned or leased library or museum." N.J.S.A. 2C:35-7.1f.
Here, the State presented evidence that the transaction observed by the officers occurred within 500 feet of the Museum. Defendant claims that the State's proofs fail because the Museum does not maintain regular and consistent hours of operation. The State argues that simply because the Museum has hours "by appointment only" does not make it any less a museum for purposes of the statute. The trial judge agreed with the State and so do we.
Whether the Museum qualifies as a museum within the parameters of N.J.S.A. 2C:35-7.1, which elevates a third-degree crime of possession with the intent to distribute to a second-degree crime, is a question of law. State v. Drury, 190 N.J. 197, 209 (2007). Our goal when interpreting a statute's meaning is to discern and implement the legislature's intent. Ibid. As a starting point, we look to the statute's plain meaning and "'[i]f the meaning of the text is clear and unambiguous on its face, [we] enforce that meaning.'" Ibid. (quoting State v. Reiner, 180 N.J. 307, 311 (2004)). If, however, the meaning of the text is ambiguous, we construe a criminal statute in favor of the defendant. Reiner, supra, 180 N.J. at 311. Nevertheless, in interpreting a criminal statute, rules of construction are "subordinate to the goal of effectuating the legislative plan as it may be gathered . . . 'when read in the full light of its history, purpose and context.'" State v. Lewis, 185 N.J. 363, 369 (2005) (quoting State v. Gill, 47 N.J. 441, 444 (1966)); see also N.J.S.A. 2C:1-2c (provisions of criminal code "construed according to the fair import of their terms").
N.J.S.A. 2C:35-7.1 was enacted as part of the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to -36A-1. In enacting that legislation, "the Legislature declared its 'intention . . . to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders' stating '[i]t is also the policy of this State to afford special protection to children from the perils of drug trafficking.'" Lewis, supra, 185 N.J. at 370 (quoting N.J.S.A. 2C:35-1.1c).
Though the statute defines a public building to include a museum, it does not define museum. No case law has interpreted the term "museum" under the statute. Defendant urges that we should be informed by the case law that construes N.J.S.A. 2C:35-7, which applies when a defendant is accused of possessing a controlled dangerous substance with the intent to distribute "while on any school property used for school purposes" or within 1000 feet of such school property. N.J.S.A. 2C:35-7. In construing that language, the Supreme Court of New Jersey has held that when the use of a school is not "self-evident," the State must present evidence that the property is "regularly, consistently, and actually" used for school purposes. State v. Thomas, 132 N.J. 247, 258-59 (1993) (citing State v. Ivory, 124 N.J. 582, 592 (1991)); see also State v. Belnavis, 311 N.J. Super. 195, 198 (App. Div. 1998) (same).
Based on the plain language of N.J.S.A. 2C:35-7.1, we decline to take that approach. We find no support in either the statute's legislative history or its plain language that a museum must be open to the public with regular, consistent hours to qualify as a public building. Public building is simply defined as a publicly owned or leased library or museum. We perceive that "the plain language of [the] statute is the best indicator of legislative intent." R.A.C. v. P.J.S., Jr., 192 N.J. 81, 95 (2007).
Here, that the Museum is publicly owned is not disputed. While it does not have regular hours, it is open to the public upon request. Public groups have visited the Museum, and they may schedule appointments either online or by telephoning the fire department. The State suggests, and we agree, that municipal budgets may not provide for the staffing of a museum during regular, consistent hours. That is substantially different from the common use of school property, where education is mandatory, N.J.S.A. 18A:38-25 (children between ages of six and sixteen required to attend school or receive equivalent instruction), and schools are required to be open 180 days per year, N.J.S.A. 18A:7F-9 (state aid conditioned upon districts providing public school facilities for at least 180 days); Atty. Gen. F.O., 1975, No. 19 (public schools must be open for instruction "at least 180 days each school year"). We decline to draw a parallel between the statutes that prohibit the sale of a controlled dangerous substance within 1000 feet of a school and within 500 feet of a public building. Accordingly, we find no merit to defendant's argument on this issue.
Finally, we turn to defendant's sentence. Defendant claims, and the State agrees, that the trial court should have merged count three into count four. Consequently, we vacate the sentence on count four and remand for merger and amendment of defendant's judgment of conviction. Otherwise, we reject defendant's sentencing claims.
Based on defendant's extensive prior record, he was subject to a mandatory extended term. N.J.S.A. 2C:43-6(f); see also State v. Thomas, 188 N.J. 137, 149-50 (2006). "[T]he sole determination for the sentencing court is to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing. No other fact-finding, or collateral assessment of the prior convictions, takes place." Id. at 150. The trial judge properly concluded that the State was entitled to an extended term as a matter of law. Defendant had prior drug convictions dating back to 1996, including convictions for possession of controlled dangerous substances with the intent to distribute.
The trial judge followed the sentencing guidelines, determined the findings on aggravating and mitigating factors based on the evidence, and defendant has failed to demonstrate "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). The extended term was manifestly appropriate under the circumstances.
We affirm defendant's convictions. We vacate defendant's sentence under count four and remand for merger of count three and count four and amendment of defendant's judgment of conviction.
Affirmed in part, reversed in part and remanded.