October 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HARRY G. ZAMOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, 01-11-01342-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Weissbard and Baxter.
Defendant, Harry Zamor, appeals from his conviction by a jury of possession of cocaine, N.J.S.A. 2C:35-10(a)(1), possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and possession of cocaine with intent to distribute within five hundred feet of a public park, N.J.S.A. 2C:35-7.1. At sentencing on November 8, 2002, the judge granted the State's motion to sentence defendant to an extended term, both as a persistent offender, N.J.S.A. 2C:44-3(a), which is discretionary, and as a repeat drug offender, N.J.S.A. 2C:43-6(f), which is mandatory. On the second-degree public park charge defendant was sentenced to seventeen years in prison with seven years of parole ineligibility. The other charges were merged. The sentence was ordered to run consecutive to sentences previously imposed on unrelated charges.
On appeal defendant presents the following arguments:
POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF CREDIBILITY
POINT II: THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION
POINT III: THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC PARK CONTROLLED BY A LOCAL GOVERNMENT UNIT) BEYOND A REASONABLE DOUBT
POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT
POINT V: THE STATE'S USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE NEW JERSEY COMMON LAW
PONT VI: THE SENTENCE IS EXCESSIVE
A. THE TRIAL COURT ERRED WHEN IMPOSING THE EXTENDED TERM
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS
On August 10, 2001, at approximately midnight, Elizabeth Police Officers Raul Delaprida and Franklin Idrovo were on duty in the area of Jefferson Park in Elizabeth. Jefferson Park is known as a high-narcotics area; police had received numerous complaints from citizens regarding ongoing narcotics sales in that area. Due to those complaints, the officers conducted surveillance of Jefferson Park and specifically an apartment building located at 471 Madison Avenue.
The officers were in plain clothes, and observed the apartment building from across the street while inside Jefferson Park. The officers saw defendant have a brief conversation with an individual, who then handed defendant money. Defendant then looked around, walked to the side of an alley at 471 Madison Avenue, bent down, picked up a white object, walked back to the individual and handed over the object. The person then left the area. The officers observed this sequence of events approximately four times that night.
The officers were approximately forty to sixty feet from defendant when he retrieved the object from the alleyway. There were security lights on outside the apartment building, and nothing obstructed the officers' view of defendant. The officer testified that they were using binoculars to aid in their observations. Using a map marked for identification, Officer Delaprida also testified that the alleyway next to 471 Madison Avenue was within 500 feet of a public park, specifically, Jefferson Park.
Based on the observed transactions, the officers called Officers Diaz and Mattos. When those officers approached defendant in their patrol car he ran to 530 Madison Avenue. Eventually, Diaz and Mattos arrested defendant inside that building. Delaprida then went to the alleyway next to 471 Madison Avenue and recovered 113 vials of cocaine from the area where defendant had gone to retrieve the objects the officers had seen him exchange with various individuals.
Delaprida also testified that another person was selling narcotics in that area; this person was stashing his drugs in the hallway inside 471 Madison Avenue. This second dealer, later identified as co-defendant Henriot Jean-Marie, was arrested by Officers Mayer and McCann before defendant was arrested.
Union County Prosecutor's Office Detective Keith Franklin testified as an expert in the area of possession, distribution and packaging of illegal narcotics. Detective Franklin testified that in his expert opinion, whoever possessed the 113 vials of cocaine that Delaprida seized from the alleyway on August 10, 2001 possessed those vials with the intent to distribute them.
Defendant testified on his own behalf. He denied being outside 471 Madison Avenue on August 10, 2001. Rather, he testified that he was on the sidewalk in front of 530 Madison Avenue. He testified that he saw police officers driving around, and that officers asked him some questions when he was outside of 530 Madison Avenue. According to defendant, he then went inside the building; one of the officers followed him and asked him to "come here." Defendant testified that he said "I ain't got nothing to tell you." He testified that he kept walking inside the house and the officer kicked open the door and arrested him. Defendant admitted to two prior third-degree offense convictions in 1995 and 2001.
Defendant contends that the judge's credibility instruction was erroneous and prejudicial. In its entirety, the challenged portion of the instruction is as follows:
You all had to make decisions before, whether with family member, or friend, or co-worker, where you sit down with a person and you know the first time you see them, talk to them and in your gut, your heart, sometimes you say, well, I believe him or her. On the other hand, you can say something is not right, something smells, I don't believe him. If you have those feelings here, you have a right to respond to those feelings and discuss those feelings with each other and determine who you believe and don't believe, and anything else necessary in your view to highlight credibility. [emphasis added.]
Prior to this portion, the judge had provided the Model Charge on Credibility of Witnesses.
Defendant argues that the quoted portion of the charge, and in particular the emphasized words, not only permitted but invited the jurors to use "any method" to assess credibility, including "such pernicious means as race and profiling." We disagree. While the judge should have adhered to the Model Charge and not "ad-libbed," we fail to discern any inherent prejudice. Defendant's examples of impermissible considerations are, in our view, far-fetched. The jury's credibility assessment here was straightforward. Defendant's testimony had to be weighed against that of the officers. The fact that the police were white and defendant was African-American does not lead to a presumption that race played a role in deciding which version of events was more believable.
We find no reversible error.
Defendant claims that Delaprida's testimony that the surveillance resulted from complaints of drug dealing in the area constituted impermissible hearsay evidence that could have led the jury to infer that he "was the drug dealer who had prompted the complaints." Defendant analogizes his case to State v. Bankston, 63 N.J. 263 (1973). However, Bankston involved a situation where the anonymous information pointed directly to the defendant, a point emphasized by the prosecutor in summation. Id. at 266-267. See also, State v. Branch, 182 N.J. 338, 347-53 (2005). That was not so here. Indeed, defendant elicited from the officers that another individual was seen selling drugs in the same area at the same time that defendant's activity was observed, thereby diluting any possible inference that defendant was the reason for the anonymous complaints.
Here again, defendant's argument is utterly speculative and presents no basis for our intervention.
Defendant contends that the State failed to prove that Jefferson Park was a public park, an essential element of N.J.S.A. 2C:35-7.1f. Given defendant's stipulation to the map demonstrating the Park's location as within 500 feet of his activity, and the admission of the ordinance approving the map, N.J.S.A. 2C:35-7.1e, as well as the lack of objection, we consider this contention to lack any merit. It does not warrant additional discussion. R. 2:11-3(e)(2).
Defendant argues that the prosecutor's reference in summation to the "people who live in that area" as "the victims of these crimes," was so prejudicial as to require reversal of his conviction. As the State points out, the prosecutor's comment was immediately preceded by a discussion of defendant's testimony in which he sought to paint himself as the victim of the officers' conduct. Again, we are not persuaded by defendant's argument.
The prosecutor's single comment was not the type of "call to arms" that we have condemned, State v. Neal, 361 N.J. Super. 522, 537 (2003), and was, in context, a fair response to defendant's summation. We do not view the remark as likely to cause prejudice to defendant.
Defendant's final argument concerning his trial is that the prosecutor improperly commented in summation on his silence when approached by the police. The prosecutor, in discussing defendant's testimony, stated that when approached by the officers defendant "had nothing to say to them so [he] walked away. . . ." However, the prosecutor was merely quoting what defendant himself had volunteered in response to a question from his own counsel on direct examination. Defendant testified, "I said, 'I ain't got nothing to tell you'" and then continued walking into his house. This snippet of repetition of defendant's own words could not reasonably be seen as a prohibited comment on defendant's silence. See State v. Brown, 190 N.J. 144, 155-59 (2007).
Finally, defendant attacks his sentence, arguing that it is excessive and that an extended term was improperly imposed.
Concerning the extended term, defendant's reliance on State v. Pierce, 188 N.J. 155 (2006), is misplaced. Pierce involved a discretionary extended term. Here, the judge found that defendant was eligible for extended term sentencing as a matter of mandate, N.J.S.A. 2C:43-6f, and as a matter of discretion, N.J.S.A. 2C:44-3(a). A mandatory extended term does not violate the Sixth Amendment principles upon which defendant relies. State v. Thomas, 188 N.J. 137, 151-52 (2006).
Turning to defendants excessiveness claim, we likewise find no error. Contrary to defendant's argument, the judge's findings of several aggravating factors and no mitigating factors was supported by the record, with the exception of N.J.S.A. 2C:44-1a(11), which was improperly applied here. State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002). The later factor, in our view had no impact on the sentence imposed and does not require a remand. The sentence does not "shock [our] judicial conscience". State v. Roth, 95 N.J. 334, 365 (1984).
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