February 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRICK A. (ALEX) MICKENS, A/K/A TYRICK MARTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges S.L. Reisner, Gilroy and King.
Defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7, and CDS distribution, N.J.S.A. 2C:35-5(b)(3). The trial court granted the prosecutor's application to impose an extended sentence, and sentenced defendant to eight years in prison with three and one-half years of parole ineligibility. Defendant appeals from the conviction and the sentence.
We affirm the conviction. However, because the term of imprisonment imposed was in excess of the then-presumptive sentence for a second-degree crime, we must remand the sentence for reconsideration pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006). In fairness to the trial judge, we note that these cases were decided after the sentence was imposed.
Defendant and his co-defendant Jameel Matthews were tried jointly for allegedly selling cocaine to an undercover police officer. On July 13, 2004, the first day of trial, defendant's counsel advised the trial judge that his client had just informed him that he wanted to present three alibi witnesses. The attorney asked for an adjournment so that he could interview the alleged witnesses.
The judge refused the adjournment on the grounds that the defense had not served an alibi notice in response to the prosecutor's written demand, as required by Rule 3:12-2(a), and the judge doubted the good faith of the claim. The judge specifically noted that it was not until the day of trial, after defendant indicated that he wanted to discharge his attorney and was not permitted to do so, that defendant sought to delay the trial by claiming that he had alibi witnesses. Defense counsel did not indicate where defendant claimed to have been at the time of the alleged offense, as required by Rule 3:12-2(a), or what testimony the alleged alibi witnesses were expected to provide.
Following defendant's conviction, the court's denial of the adjournment request was the subject of a new trial motion heard in October 2004. However, even after having several months to interview the witnesses, two of whom were identified as defendant's father and grandmother, the defense still did not specify where defendant claimed to have been at the time of the offense or what testimony the witnesses allegedly would have provided at trial.
At the trial, the State presented testimony from Detective Kenneth Mikolajczyk, who observed defendant engaging in what appeared to be a drug transaction with Detective Keith Johnson, who was working undercover. Detective Johnson testified that he approached defendant's accomplice, Jameel Matthews, and indicated he wanted to buy $50 worth of cocaine. Matthews took the money and gestured to defendant, who then approached Johnson and handed him five vials of a white substance that proved to be cocaine. Although Johnson did not know Matthews, he was well-acquainted with defendant. Johnson testified that he was "positive" that defendant was the person who handed him the cocaine. Mikolajczyk also knew defendant and positively identified him as the person he saw making the transaction with Johnson.*fn1
Shortly after beginning their deliberations, the jury asked for a read-back of all of the police testimony identifying the defendants. They also indicated that they were having some difficulty with the State's evidence and might have trouble reaching a verdict. The judge had the court reporter provide the read-back and then directed the jurors to continue deliberating. Defense counsel did not object. The judge subsequently asked the jurors if they wanted to continue deliberating or if they wanted to return the next day. They indicated that they wished to continue deliberating and, in fact, three jurors sent out a note asking the judge to have his staff contact their families to tell them that they would be home late. Again, counsel did not object to the jurors continuing to deliberate into the evening. After several hours of deliberation, the jury acquitted Matthews and convicted defendant.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT'S RULING PRECLUDING EXCULPATORY ALIBI WITNESSES FROM TESTIFYING BECAUSE OF DEFENSE COUNSEL'S FAILURE TO TIMELY PROVIDE DISCOVERY, DENIED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS, TO PRESENT EXCULPATORY EVIDENCE, TO DUE PROCESS OF LAW AND TO A FAIR TRIAL (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARS 1, 9 AND 10).
POINT II: THE TRIAL COURT COERCED A VERDICT BY HAVING THE JURY CONTINUE DELIBERATIONS PAST 6:00 PM OF THE DAY DELIBERATIONS COMMENCED. (NOT RAISED BELOW).
POINT III: THE SENTENCE SHOULD BE REMANDED BECAUSE IT IS IN EXCESS OF THE PRESUMPTIVE SENTENCE, IN ACCORDANCE WITH STATE V. NATALE.
The State concedes defendant's Point III, agreeing that the sentence must be remanded for reconsideration. Having read the trial transcript we conclude that, except to the extent discussed below, Points I and II are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
We find no abuse of the judge's discretion in denying defendant's last-minute request for a trial adjournment, to permit defense counsel to interview alleged alibi witnesses whose existence defendant revealed for the first time on the morning of the trial. Within ten days after receiving the State's demand, a defendant must "furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi." R. 3:12-2(a). If defendant fails to furnish the alibi notice, "the court may refuse to allow [defendant] to present witnesses at trial" concerning the alibi. R. 3:12-2(b). Alternatively, the court may grant an adjournment or a delay during the trial "as the interest of justice requires." Ibid.
The rule is intended to prevent unfair surprise and disruption of scheduled trials:
The purpose of a notice of alibi is "to avoid surprise at trial by the sudden introduction of a factual claim [that] cannot be investigated unless the trial is recessed to that end." State v. Garvin, 44 N.J. 268, 272-73 (1965). The sanction for noncompliance with the Rule is that the defaulting party may be precluded from presenting witnesses at trial regarding defendant's absence from or presence at the scene of the alleged offense. [State v. Irving, 114 N.J. 427, 433 (1989).]
We review a trial judge's decision to bar alibi witness testimony under Rule 3:12-2(b) for abuse of discretion. See State v. Harris, 117 N.J. Super. 83, 91-92 (App. Div. 1971), certif. denied, 63 N.J. 557 (1973).
The State properly served defendant on November 18, 2003, with a demand for a notice of alibi. Defendant did not indicate that he had alibi witnesses until the first day of trial on July 13, 2004. His counsel provided no explanation as to why defendant did not provide the names of these witnesses sooner, in compliance with Rule. 3:12-2(a). More significantly, he provided no indication as to their expected testimony or where defendant claimed to be at the time of the alleged offense. Ibid.
The cases on which defendant relies are not on point. In State v. Dimitrov, 325 N.J. Super. 506 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), defense counsel provided a reasonable explanation for the late notice and gave the prosecutor a statement from the proposed witness. Id. at 509. In State v. Caffee, 220 N.J. Super. 34 (App. Div. 1987), the alibi notice was sent to the prosecutor a month in advance of trial, and the defendant disclosed his alleged location at the time of the alleged offense. Id. at 36-37.
State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000), did not involve an alibi witness at all. We held there that defendant was entitled to an adjournment to investigate a witness whose existence was first revealed by a prosecution witness shortly before defendant's trial. Id. at 378. Likewise, in State v. Volpone, 150 N.J. Super. 524 (App. Div.), certif. denied, 75 N.J. 543 (1977), defense counsel gave the prosecutor a statement from a proposed witness who was prepared to testify that defendant did not participate in the crime. We held that this was not alibi testimony, and that in any event it was error for the trial judge to preclude defendant from presenting this clearly exculpatory testimony. Id. at 529.
On the facts of this case, we find no abuse of discretion, nor any deprivation of defendant's constitutional rights, in the trial judge's decision to deny defense counsel's application for an adjournment to interview alleged alibi witnesses. See Taylor v. Illinois, 484 U.S. 400, 414, 108 S.Ct. 646, 655, 98 L.Ed. 2d 798, 813 (1988). Given the State's overwhelmingly strong case, we decline to speculate that the testimony (as to the substance of which there is still no proffer) of the alleged alibi witnesses would have led the jury to reach a different verdict.
Finally, we find no evidence whatsoever that the judge coerced the jury into reaching a verdict by allowing them to deliberate into the evening. We consider this argument under the plain error rule, because it was not raised in the trial court. See R. 1:7-2; R. 2:10-2. The judge gave the jury the choice of stopping their deliberations for the day if they wanted to do so. They chose to continue deliberating. We find no error, much less plain error, in the judge's decision to allow the jury to continue their deliberations. See State v. Tarlowe, 370 N.J. Super. 224, 238 (App. Div. 2004).
We affirm the conviction and remand the sentence for reconsideration.