December 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES EDWARD RICHARDSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Axelrad and Payne.
Defendant, James Richardson, appeals from his conviction on third-degree charges of possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1); possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and possession of CDS with the intent to distribute it within 1,000 feet of a school, N.J.S.A. 2C:35-7. He appeals as well from his extended-term sentence of ten years in custody with a four-year period of parole ineligibility, imposed pursuant to N.J.S.A. 2C:43-6(f).
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE FAILED TO ADEQUATELY EXPLAIN THE LOITERING STATUTE AND THE DEFENDANT WAS SEVERELY PREJUDICED THEREBY. U.S. CONST. Amends. VI, XIV; N.J. CONST. (1947), Art. 1, pars. 9, 10. (Not Raised Below.)
THE DEFENDANT WAS SEVERELY PREJUDICED BY THE TESTIMONY ELICITED BY THE STATE THAT THE UNDERCOVER OFFICER KNEW THE DEFENDANT. U.S. CONST. Amends. V, VI and XIV; N.J. CONST. (1947), Art. 1, pars. 1, 9 and 10. (Not Raised Below.)
THE DEFENDANT'S SENTENCE IS EXCESSIVE AND IN VIOLATION OF NATALE II AND THOMAS. U.S. CONST. Amends. VI, XIV; N.J. CONST. (1947), Art. 1, pars. 9, 10. (Not Raised Below.)
We affirm defendant's conviction and remand the matter for resentencing.
The record provides evidence sufficient for a jury to conclude that Elizabeth police officer Athanasios Mikros, while in plain clothes, was approached by defendant in a high-crime location and asked what he was looking for. When Mikros responded "Diesel," meaning a brand of heroin, defendant asked how many he needed. Mikros responded, "two." Defendant then put his hand in his pocket but, after noticing the police's presence some distance away, instead of offering the drug as expected, defendant told Mikros to come with him. Realizing that his partner and a police car were approaching, Mikros arrested defendant before price was discussed, and before the drug transaction was finalized. A post-arrest search of defendant's pockets disclosed two folds of heroin and a total of $172 in cash.
Defendant did not testify on his own behalf. However, his counsel argued that defendant was just a user, and that he merely intended to take Mikros down the street to a seller. In support of this claim, the defense argued, among other things, that the officer had requested "Diesel" and the heroin possessed by defendant was marked "Drip" and "Black Ink." Mikros refused to concede that the two folds could have been for personal use, stating that some dealers do not carry significant quantities of drugs on their person, but instead use a stash.
During trial, Mikros was asked if he recognized the person who was soliciting him, and he stated: "I know him from the area, James Richardson." This aspect of the officer's testimony was noted by the prosecutor during closing argument, when he stated that Mikros had testified that he knew defendant "from the area" and "from the neighborhood." No objection to the officer's testimony or the prosecutor's repetition of it during his summation was made, but on appeal, defendant claims that the admission of the statements constituted plain error. We disagree, finding that neither the testimony nor the prosecutor's comment was clearly capable of producing an unjust result, since neither implied that Mikros knew defendant because of prior criminal activity, but merely that defendant was a person who was known to Mikros because of his knowledge of the area, resulting from his service as a police officer. R. 2:10-2; State v. Timmendequas, 161 N.J. 515, 575-76 (1999); State v. Macon, 57 N.J. 325, 341 (1971). The testimony by Mikros appears to have been elicited to strengthen the identification of defendant by the officer. Its content and use by the prosecutor did not deprive defendant of a fair trial and thus result in reversible error.
Defendant argues additionally that the trial judge erred when instructing the jury with respect to the lesser-included disorderly persons offense of wandering, remaining in or prowling a public place with the purpose of obtaining or selling CDS, N.J.S.A. 2C:33-2.1. That statute provides in relevant part:
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.
c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog includes, but is not limited to, conduct such as the following:
(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;
(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;
d. The element of the offense described in paragraph (1) of subsection b, of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.
Defendant argues on appeal that the judge's instruction was inadequate, because defendant's intent in possessing heroin was a crucial element of the case, and yet the judge failed in his instructions to distinguish between the State's version of defendant's intent -- that defendant intended to sell Mikros the two bags of heroin that he held in his pocket -- and the defense's version -- that defendant intended to use the two bags, which he stipulated that he possessed, and that he intended to direct Mikros to another to fulfill his request to purchase "Diesel," which, after all, defendant did not have. Thus, under the State's theory, only one supply of drugs existed, that found on defendant's person, whereas under the defense's theory, there were two supplies of drugs, defendant's and the supply kept by the seller to which defendant attempted to direct Mikros. The judge did not explain these distinctions nor, according to the defense, did he adequately explain how the offense of wandering differed from the offense of possession with the intent to distribute, set forth in Count Two of the indictment.
We find no plain error to have occurred, regardless of the content of the judge's instructions on this lesser-included offense, because we do not find the elements of the offense to have been established by the proofs adduced at trial. In State v. Kazanes, 318 N.J. Super. 421 (App. Div. 1999), we discussed at length the meaning of "wandering, remaining in or prowling" as used by the Legislature in adopting N.J.S.A. 2C:33-2.1. We concluded that:
The wandering element of section b(1), as well as the other verbs, to remain, to prowl, require more than the mere going from point A to point B, engaging in a drug transaction and leaving. The statute requires some sense of hanging about or lingering in an attempt to make a drug connection. [Id. at 426.]
As in Kazanes, we do not regard the evidence produced in this case to be sufficient to satisfy section b(1). In that regard, Officer Mikros testified that he had just returned to the area following an unsuccessful investigation concerning another drug dealer twenty minutes earlier. He then stated: "Once I reached the corner . . . a male approached me walking east towards me, stopped approximately 3 feet away from me and came to a stop." Mikros continued: "As soon as he reached me he goes, [']what are you looking for?[']" Mikros responded "Diesel," and after Mikros replied to a question as to quantity, defendant "placed his right hand in his right front pocket of his jeans and something drew his attention, he looked south where the police cars was, and he said [']the cops are down there, come with me.[']" After Mikros identified himself as a police officer, defendant stated that he "was just going to take him down to South Park Street to buy the Diesel." According to Mikros, defendant stated that he was a user, not a seller. Mikros confirmed that defendant was in no way involved in the prior investigation taking place at that location, and that he had not seen defendant in the area at that time.
On cross-examination, the following exchange occurred:
Q: Okay. Well, you stated before that the defendant approached you on the corner.
Q: Did you see where he was coming from?
A: Once I reached the corner he was just walking towards me. He was walking east on south Park Street towards me.
Q: All right. So he hadn't been stopped anywhere or come from anywhere particular that you know of?
A: That I know of, no.
As in Kazanes, all that was established by Mikros's testimony was that there was a meeting and, in the present matter, an aborted exchange. Thus the charge given pursuant to N.J.S.A. 2C:33-2.1 was inapplicable to the case, and any error in that charge does not constitute reversible error, since no conviction could have resulted if the charge had been provided in the fashion that defendant contends was correct. N.J.S.A. 2C:1-8e (a judge shall not charge a lesser included offense unless there is a rational basis for conviction); R. 3:18-1 (requiring acquittal on motion if evidence is insufficient for conviction); State v. Reyes, 50 N.J. 454, 458-59 (1967) (implementing Rule); State v. Hock, 54 N.J. 526, 538 (1969) (articulating plain error standard), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
Although we affirm defendant's convictions, finding no plain error to have occurred, we remand the matter to the trial court for resentencing. In rendering a sentence at the top of the extended term range, the judge stated:
You probably do sadly have a drug problem, but the court is also mindful that our Supreme Court recently came down with a case called State v. Natale, and in that case the Supreme Court directed that the presumptive term, meaning the in-between number, is no longer applicable but a judge must sentence a defendant to the higher range of the degree when there is an extensive criminal record. As a result the court has no choice in the matter.
We view the judge's reasoning, which failed to adequately weigh the aggravating factors that the judge had found*fn1 against the permissible range of sentences that he could impose, to reflect a mistaken understanding of State v. Natale, 184 N.J. 458 (2005) and the Court's later-decided opinion in State v. Thomas, 188 N.J. 137 (2006), which directly concerns the considerations applicable to extended-term sentences. As the Court stated in Thomas,
[I]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment that we want and expect the court to make. A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.
. . . Our Natale remedy will continue to permit such qualitative assessments by sentencing courts in finding aggravating factors (3), (6), and (9) going forward. [Id. at 153-54.]
Because a qualitative assessment is lacking in this case, a remand is required to remedy this defect.
Defendant's conviction is affirmed; the matter is remanded for resentencing.