December 18, 2007
STATE OF NEW JERSEY PLAINTIFF-RESPONDENT,
HASSAN CROMER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1420; 04-12-3713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2007
Before Judges Weissbard and S.L. Reisner.
A jury convicted defendant Hassan Cromer of the following crimes: two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin), N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of a controlled dangerous substance (cocaine and heroin) with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and b(3); three counts of third-degree "school-zone" drug offenses, N.J.S.A. 2C:35-7; and three counts of second-degree possession of drugs with the intent to distribute and distribution of narcotics within a public property zone, N.J.S.A. 2C:35-7.1. He appeals from the conviction, and from the aggregate sentence of eight years in prison with four years of parole disqualification.*fn1 We affirm the conviction and the sentence.
The following evidence was presented at a hearing on defendant's motion to suppress evidence. According to Detective Jason West, a member of the Newark Narcotics Enforcement Task Force, at about 8:00 a.m. on September 20, 2004, he and his partner Officer Turzani were conducting a surveillance operation at the James Baxter Terrace housing complex, in response to citizen complaints about drug activity. The complex consists of a series of multi-family dwellings arranged around courtyards.
From a distance of eighty to eighty-five feet away, West observed defendant standing in the courtyard of one of the buildings, at 192 Orange Street. He saw defendant waving to passersby, as though indicating that he had something to sell. West observed a man later identified as John McDonald enter the courtyard and speak to defendant. He then saw McDonald give defendant money. Defendant went up the steps of 192 Orange Street, opened the front door, turned around and reached up toward the top of the inside door frame. Defendant withdrew a small black box, took something out of the box and handed it to McDonald, and then replaced the box in the top of the door frame.
West alerted backup officers, who arrested McDonald, searched him and found an envelope of heroin marked with the name "Rough Riders." Based on this finding, the police then immediately arrested defendant. West then went to the front door of 192 Orange Street, opened the unlocked front door which led to a publicly-accessible entryway and stairs leading up to the apartments, and reached up to the top of the door frame. There, in a space between the door frame and the wall, he found two small black key holder boxes and several vials of cocaine. In the boxes he found several envelopes of heroin marked "Rough Riders" and some with a different label.
Based on this testimony, Judge Fullilove denied defendant's motion to suppress the evidence, concluding that the boxes and the cocaine vials were abandoned in a public place. He also concluded that defendant had no reasonable expectation of privacy in the public entryway of the multiple dwelling at 192 Orange Street. The judge further reasoned that "based on the observations of Detective West, the interaction between McDonald, [and] the finding of [the drugs on McDonald]," there was probable cause to detain defendant "and to . . . go to the location that this defendant was seen going to."
The matter then proceeded to trial. In his initial instructions to the jury, Judge Fullilove told them that the attorneys' opening statements and summations were not evidence.
West's trial testimony was consistent with his testimony at the suppression motion. He told the jury that he observed defendant "flagging down people in the area" or "calling people over to him." He saw McDonald hand defendant "paper currency" and saw defendant enter the apartment building and retrieve "a black object from the top of the door," remove items, and replace the black box. After McDonald was arrested, West searched the door frame and found the black boxes and the vials of cocaine. West also testified that the location where defendant was arrested was within 1000 feet of a "working, operating elementary school," and that the Baxter Terrace complex was public housing.
Officer Martin testified that he arrested McDonald and found him to be in possession of a bag of heroin marked "Rough Riders." After he arrested McDonald, Martin detained defendant, "while Detective West recovered the drugs" from the door frame of the apartment building. He testified that the drugs Detective West recovered from the door frame were also marked "Rough Riders." On cross-examination, Martin admitted that he did not personally observe West recovering the drugs from the door frame, because Martin was busy detaining defendant.
After Detective Martin testified, the State moved into evidence the key holders, the heroin packets retrieved from the key holders, the heroin packet recovered from McDonald and the vials of cocaine. Without defense objection, the State also moved into evidence the Forensic Laboratory Certificate of Analysis for the drugs. The State then rested.
Before making a motion for a directed verdict of acquittal at the close of the State's case, defense counsel thanked the trial judge "for your courtesy with my hearing problem." In his motion, defense counsel conceded that he would not challenge the State's evidence that the location of the alleged sale was within a school zone and a public housing zone. Rather, he contended that the police arrested the wrong person.
The trial judge denied the motion in an oral opinion placed on the record on August 11, 2005. He concluded that there was sufficient direct and circumstantial evidence that defendant sold drugs to McDonald in a school and public housing zone, "that defendant was in constructive possession of the items found over the door," and that he possessed the drugs with intent to distribute.
The defense presented testimony from John McDonald. He admitted buying a $10 bag of "Rough Rider" heroin at the Baxter Terrace complex on September 20, 2004. However, he claimed he bought the drugs from a woman. On cross-examination, McDonald testified that he habitually bought drugs from the same person every day, and that the seller was a woman who "kind of looks like a man."
The prosecutor then cross-examined McDonald concerning McDonald's plea bargain, in which he was permitted to plead to a charge of "wandering." The prosecutor questioned McDonald about an alleged prior inconsistent statement that McDonald had communicated to the prosecutor through McDonald's defense counsel during plea negotiations, to the effect that McDonald was not sure who the seller was. McDonald's response was that he "didn't know the seller's name." McDonald also admitted that he did buy drugs from "multiple people," that he had been an addict for fifteen years, and that it affected his memory. On redirect examination, McDonald testified that he never bought drugs from defendant. The defense did not request any limiting instruction or other jury charge concerning McDonald's testimony.
The mother of defendant's girlfriend testified that defendant was at her house in Jersey City at 7:20 a.m. or 7:30 a.m. on the morning of September 20, 2004. She also contended she received a call from the police asking about defendant's whereabouts and when he left her house.
Another witness, Yolanda Ortiz, testified that she visited her mother at 180 Baxter Terrace on the morning of September 20, 2004, that she arrived at about 6:45 a.m., and that she saw defendant and two police officers "in the building right in the lobby." She testified that the doors to the building were not always locked. On this morning, she saw several police officers "checking on people's doors with some keys," essentially searching through the building from 6:45 to 8:30 a.m. She also saw the police bringing defendant out of 180 Baxter Terrace in handcuffs a few minutes after 8:30 a.m.
During their summations, each attorney made statements as to which there was no testimony in the record, and the judge admonished each of them that they could not testify. The thrust of defense counsel's closing was that the police were not credible. He also told the jury that McDonald, "despite having been prosecuted and convicted by way of a plea, still came into court today, because he cares about the truth." He also reminded the jury that when McDonald pled guilty, he "was not asked who he bought drugs from" and that, at the trial, McDonald testified that he never bought drugs from defendant. Again, defense counsel emphasized in his closing that "I don't know who Mr. McDonald bought drugs from. He must have bought drugs. He pled guilty to buying drugs. You've got to give him credit for fessing up. Right? He didn't buy them from Hassan [Cromer]. . . . He said he bought them from a woman."
In his summation, the prosecutor focused first on the evidence in the State's case. However, he also contended that McDonald was not credible, reminding the jury that McDonald first said he bought drugs from a woman and then contended that the woman looked like a man. The prosecutor then stated that "I submit to you that Mr. McDonald doesn't even remember the plea offer that I gave him. He barely remembers the day that he pled. And the State knew that he didn't know who the [seller] was, . . . and that's why I allowed him to plea. I was the prosecutor in that case. I knew he didn't know who the seller was, and that's why I didn't ask for an identification - -." At this point, the judge interrupted the prosecutor and told him "you can't testify either."
Defense counsel did not object to the prosecutor's comments or request a curative instruction. In the jury charge, which came immediately after the prosecutor's summation, the judge reminded the jurors that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence." He also instructed them that "the mere fact that an attorney asks a question and inserts facts or comments or opinions in that question in no way proves the existence of those facts. You will only consider such facts which, in your judgment, have been proven by the testimony of witnesses or from exhibits admitted into evidence." He further instructed the jurors that McDonald's prior criminal conviction could only be used in weighing McDonald's credibility. The jury convicted defendant on all counts of the indictment.
Following a lengthy and cogent analysis of the applicable sentencing factors, including defendant's considerable prior criminal record, Judge Fullilove sentenced defendant to three concurrent terms of eight years, or one year higher than the former presumptive sentence of seven years.
On this appeal, defendant raises the following points for our consideration:
POINT I: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE PRODUCED NO EVIDENCE THAT DEFENDANT ABANDONED THE NARCOTICS SEIZED, REQUIRING REVERSAL. (Raised Below).
POINT II: REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR TOLD THE JURY THAT HE KNEW FROM PLEA NEGOTIATIONS THAT MCDONALD DID NOT KNOW WHO SOLD HIM THE HEROIN. N.J.R.E. 410; N.J.R.E. 803. (Raised Below).
POINT III: THE TRIAL JUDGE WAS REQUIRED TO INSTRUCT THE JURY THAT THEY WERE NOT TO CONSIDER EVIDENCE OF MCDONALD'S PLEA TO THE CHARGE OF WANDERING AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT, AND TO DISREGARD THE PROSECUTOR'S STATEMENTS THAT MCDONALD RECEIVED A FAVORABLE PLEA BECAUSE HE COULD NOT REMEMBER WHO SOLD HIM THE NARCOTICS. (Partially Raised Below).
POINT IV: THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THE PROOFS WERE INSUFFICIENT TO SUSTAIN A CONVICTION.
R. 3:18-1. (Raised Below).
POINT V: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO A CLEAR INDICATION ON THE RECORD THAT DEFENSE COUNSEL'S HEARING WAS IMPAIRED. (Not Raised Below).
POINT VI: DEFENDANT'S SENTENCE WAS EXCESSIVE AND INCONSISTENT WITH THE SENTENCING GUIDELINES.
Having reviewed the entire record, we find no indication that any hearing problem from which defense counsel may have been suffering on the day of trial in any way prevented him from presenting a thorough and zealous defense. Nonetheless, we will not adjudicate defendant's claim of ineffective assistance without prejudice to his raising the claim in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Except as discussed below, defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We agree with the trial judge that defendant had no reasonable expectation of privacy with respect to the unlocked public entryway of the apartment building. "'[W]hen the police come onto private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.'" State v. Johnson, 171 N.J. 192, 209 (2002) (citations omitted); see also United States v. Acosta, 965 F.2d 1248, 1252-53 (3d Cir. 1992)(no Fourth Amendment right of privacy in the common area of a multi- family dwelling); State v. Nunez, 333 N.J. Super. 42, 52 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001)(no requirement to knock before police enter the unlocked door to the common area of a multi-family dwelling). Moreover, having left the contraband in a common area, where the police or anyone else could have found them, defendant could not claim a reasonable expectation of privacy in his drug stash. See State v. Burgos, 185 N.J. Super. 424, 426 (App. Div. 1982).
Defendant also urges reversal based on the prosecutor's questioning of McDonald about statements made in connection with McDonald's plea agreement, and the prosecutor's comments in summation. Since McDonald testified that he bought the drugs from a woman, the prosecutor was entitled to question him about a prior inconsistent statement that McDonald did not know who the seller was. This was, however, a non-issue. McDonald agreed that he said that he did not know who the seller was, but explained that by that statement he meant that he did not know the seller's name.
While the prosecutor was entitled to question McDonald about a possible prior inconsistent statement, we agree that the prosecutor improperly sought to interject his own knowledge about the plea agreement in summation. On the other hand, the judge promptly cut the prosecutor off, told him in front of the jury that he could not testify, and shortly thereafter charged the jury that none of the statements made by either counsel were evidence. In light of the entire record, we find no possibility that the prosecutor's statement could have caused the jury to reach a verdict they might not otherwise have reached. See State v. Macon, 57 N.J. 325, 338 (1971).
We find no error in the trial court's failure to charge the jury that it could not consider McDonald's guilty plea as proof of defendant's guilt. First, absent a showing of plain error, defendant waived his right to assert this issue by failing to request such a charge. See R. 1:7-2. Second, unlike the situation in State v. Stefanelli, 78 N.J. 418, 430 (1979), on which defendant relies, the State did not attempt to use McDonald's guilty plea as evidence of defendant's guilt. The plea deal was simply the context in which McDonald allegedly made the statement that he did not know who the seller was. Moreover, defendant did not contest that McDonald bought drugs from someone. The only issue was whether he bought them from defendant. McDonald's plea allocution did not incriminate defendant and, unlike State v. Murphy, 376 N.J. Super. 114, 123-24 (App. Div. 2005), his trial testimony exculpated rather than incriminated defendant.
We find no error in the trial judge's well-reasoned decision to deny the motion for a directed verdict of acquittal. The State's evidence could fairly be described as overwhelming.
Finally, we find no grounds to disturb the sentence, which we affirm for the reasons stated in Judge Fullilove's oral opinion placed on the record on October 14, 2005. We find no error in his well-justified decision to sentence defendant to one year higher than the middle of the sentencing range. See State v. Natale II, 184 N.J. 458, 488 (2005); State v. Roth, 95 N.J. 369 (1984). We also find no merit in defendant's merger argument. See State v. Williams, 229 N.J. Super. 179, 183-84 (App. Div. 1988); State v. Jordan, 235 N.J. Super. 517, 520-22 (App. Div. 1989).