February 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEX ROBINSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-515.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Skillman and Yannotti.
Defendant Alex Robinson was charged under a Hudson County indictment with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts one and five); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (counts two and six); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (counts four and eight); resisting arrest, N.J.S.A. 2C:29-2a (count nine); escape, N.J.S.A. 2C:29-5a (count ten); terroristic threats, N.J.S.A. 2C:12-3b (counts eleven, twelve, thirteen and fourteen); disarming a law enforcement officer, N.J.S.A. 2C:12-11a (count fifteen); and aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts sixteen, seventeen and eighteen). At trial, the judge dismissed counts eleven through fourteen and count seventeen. Defendant was found not guilty on counts ten, fifteen and sixteen but found guilty on counts one through nine, and on count eighteen. Defendant appeals his convictions and the sentences imposed.
We briefly summarize the evidence presented at trial. On December 8, 2004, at about 3:30 p.m., Officer William Kallert and other officers of the Jersey City Police Department (JCPD) were conducting narcotics surveillance at an apartment building at 567 Montgomery Street in Jersey City. Kallert said that the building was part of Montgomery Housing Gardens, which consists of six buildings located at 561, 563, 565, 567, 569, and 571 Montgomery Street. Kallert described the buildings as "a housing complex." Kallert said that he had received complaints from building management about criminal activity in the building.
Kallert and Detective James Wilde were in a surveillance vehicle about forty yards from the building. Officers Walter Chowonic and Duran were in the area acting as "a perimeter unit." Kallert testified that after ten minutes of surveillance, he observed defendant and another individual, who he identified as a "Mr. Galloway," standing in front of the building.
According to Kallert, a female approached. She engaged defendant in a short conversation, after which defendant reached into his right jacket pocket and removed a plastic bag that contained several pink items. Defendant handed one of the pink items to the female and, in exchange, she gave defendant what appeared to be green currency. The female walked north to the building at 565 Montgomery and entered the front door. After five or ten minutes, Kallert called for Chowonic and Duran to "form a plan" to enter the building at 567 "to secure [defendant] for an investigation." Kallert stated that, based on his experience and training, he believed that he had observed a drug transaction between defendant and the female.
Kallert, Chowonic and Duran entered the rear of 567 Montgomery while Wilde walked toward the front of the building. As Kallert and the other officers were entering the building, Wilde radioed that Galloway was running into 567 Montgomery and defendant was running toward 569 Montgomery. Kallert and Chowonic went to 569 Montgomery. They ran up to the third floor and heard Wilde shout, "stop fighting, stop resisting."
Kallert and Chowonic went to the fourth floor. Kallert said that defendant had his right hand on Wilde's gun, and Wilde was fighting with defendant. Kallert and Chowonic tried to grab defendant's legs "to take him to the ground." Kallert said that he saw defendant's jacket on the ground. Defendant refused to put his hands behind his back so that he could be handcuffed. According to Kallert, defendant "reached up and grabbed . . . Wilde's testicles."
Kallert said that the officers were "finally able to get [defendant's] hands behind his back and handcuff him." According to Kallert, as he was being handcuffed, defendant repeatedly struck his head on the floor. Defendant was arrested. Wilde recovered CDS in the pocket of defendant's jacket. The parties stipulated that the substances tested positive for heroin and cocaine. The officers brought defendant down the stairs to the rear of the building. Defendant broke free and tried to run away. The officers again apprehended defendant and he was taken to a hospital.
Chowonic testified that on December 8, 2004, he was "working narcotics" at 567 Montgomery Street with Duran, Kallert and Wilde. Chowonic said that surveillance officers Kallert and Duran "formulated a plan" to stop and detain two persons. Chowonic, Duran and Kallert encountered Galloway, who was in possession of twenty-nine bags of suspected CDS. Kallert and Wilde chased defendant into 569 Montgomery Street. Chowonic heard Wilde on a radio transmission state that he was on the fourth floor. Chowonic heard yelling and screaming.
When Chowonic arrived on the fourth floor, he saw defendant trying to grab Wilde's gun. Wilde told defendant to stop resisting. Chowonic asserted that he and Kallert grabbed defendant and tried to get him to the ground so that they could handcuff him. Chowonic said that defendant hit him in the jaw.
The officers continued to struggle with defendant. Chowonic testified that at one point, defendant grabbed Wilde's testicles. The officers were yelling at defendant to stop resisting. After several minutes, the officers were able to handcuff defendant. Chowonic stated that he did not see anyone else in the hallway at the time.
According to Chowonic, defendant went "wild" and was "banging his head against the ground." Kallert called for an ambulance. The officers took defendant downstairs to meet the ambulance. Chowonic conceded that he hit defendant with his hands. He said that it was "just a couple of punches in his ribs just to, you know, try to get his arms loose."
Sergeant Wally Wolfe of the JCPD testified that he is assigned to the Special Investigations Unit. Wolfe asserted that he is familiar with the "narcotics trade" at the Montgomery Gardens housing complex. Wolfe said that the location is a known drug market, that operated twenty-four hours a day, and he has made hundreds of arrests at that location.
Wolfe also stated that a sophisticated system of narcotics distribution exists in the area that involves numerous individuals in different roles including lookouts; people who hold money; others who hold weapons; and "runners" who seek out buyers and bring them to specific locations to buy drugs. Wolfe said that a walkie-talkie that he recovered from defendant after his arrest was associated with narcotics distribution. He stated that the amount of heroin recovered from defendant was more than an individual would possess for personal use. Wolfe also stated that the quantity of cocaine and heroin that defendant possessed, and the manner in which it was transported, suggested that defendant possessed the drugs for resale.
The parties stipulated that 567 Montgomery Street is within 1000 feet of a school, which was at the time being used for school purposes.
Defendant presented testimony from Tiffany Bell Gallemore. She is defendant's cousin, and was at her mother's apartment at 571 Montgomery Street when she heard of defendant's encounter with the police. Gallemore went outside and saw defendant placed in an ambulance. She took photographs of defendant in the ambulance. Gallemore said that defendant "was all bloody." She also took pictures on the fourth floor of 569 Montgomery Street. Gallemore stated that there was "blood all over the floor near the elevator."
In addition, defendant presented testimony from Yvonne Oliver, who was his girlfriend at the time of the incident. Oliver said that she met defendant outside of the building at 569 Montgomery and they went to her apartment on the fourth floor. Oliver stated that, as she was putting her key in the door of her apartment, a man came up the steps and said, "what the f-- are your doing?" The man spoke into a radio and disclosed his location. Oliver said that she then realized the man was a police officer.
Oliver asserted that the officer and defendant began to fight. Two other officers appeared. According to Oliver, the officers kicked defendant and hit him with their walkie-talkies. She said that "blood just started squirting out" and defendant was handcuffed. Oliver denied that defendant resisted or fought with the officers. She said that defendant was "completely submissive." Oliver asserted that defendant could not move and he was "pinned up."
On this appeal, defendant raised the following arguments for our consideration:
THE DEFENDANT'S CONVICTIONS ON COUNTS FOUR AND EIGHT ARE CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT AN ESSENTIAL ELEMENT OF THE OFFENSE, THAT THE MONTGOMERY GARDENS HOUSING COMPLEX WAS PUBLIC HOUSING. THEREFORE, THE TRIAL COURT COMMITTED CONSTITUTIONAL, REVERSIBLE ERROR IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE. U.S. CONST. AMENDS. V., XIV; N.J. CONST. (1947) ART. I., PAR. 10.
THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGIANST THE WEIGHT OF THE EVIDENCE.
THE DEFENDANT'S SENTENCE OF ELEVEN YEARS, WITH THREE AND ONE-HALF YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE, IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We first consider defendant's contention that the trial judge erred by denying his motion for acquittal on counts four and eight, which charged him with possession of a CDS within 500 feet of a "public housing facility" in violation of N.J.S.A. 2C:35-7.1. Defendant argues that the judge erred by concluding that the State produced sufficient evidence to establish that Montgomery Gardens is "a public housing facility." We agree.
A person who violates N.J.S.A. 2C:35-5a "by distributing, dispensing or possessing with intent to distribute" CDS "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." N.J.S.A. 2C:35-7.1. The term "public housing facility" is defined in N.J.S.A. 2C:35-7.1f to mean: any dwelling, complex of dwellings, accommodation, building, structure or facility and real property of any nature appurtenant thereto and used in connection therewith, which is owned by or leased to a local housing authority in accordance with the "Local Redevelopment and Housing Law," . . . for the purpose of providing living accommodations to persons of low income.
In State v. Trotman, 366 N.J. Super. 226 (App. Div. 2004), the State presented testimony from a police officer, who asserted that a particular housing complex was "a public housing facility." Id. at 229-30. The officer identified a map which depicted the area surrounding the housing complex. Id. at 230. The State also presented testimony from the executive director of the municipal housing authority, who stated that the complex in question was a low income housing facility owned by the United States Department of Housing and Urban Development. Ibid. The witness added that the building where the defendant lived, and where the drug distribution occurred, was within 500 feet of public housing. Ibid.
We concluded in Trotman that the State presented "sufficient evidence from which a jury could find beyond a reasonable doubt that defendant distributed [CDS] within 500 feet of a public housing facility." Id. at 237. We held that to support a conviction under N.J.S.A. 2C:35-7.1, the State need not show that the housing authority had valid title to the housing units. Ibid. The State only had to produce evidence that would warrant a finding that the property at issue was being used as a "public housing facility." Ibid.
In this case, the State's proofs fall short of the evidence required to establish that the Montgomery Gardens Housing Complex is a "public housing facility" as defined in N.J.S.A. 2C:35-7.1f. The State presented two witnesses who described Montgomery Gardens: Kellert and Wolfe. Kellert merely described the buildings as "a housing complex." Wolfe said that Montgomery Gardens is a "housing complex" and he asserted that it was "known drug market." Although the State's evidence was sufficient to show that Montgomery Gardens is a housing complex, the State failed to establish that the complex is a "public housing facility." N.J.S.A. 2C:35-7.1f. Therefore, we conclude that the judge erred by denying defendant's motion for acquittal on counts four and eight.
We next consider defendant's contention that the judge erred by denying his motion for a new trial. Defendant contends that the jury's verdict was against the weight of the evidence. Defendant argues that only Oliver's testimony "resonated with the ring of truth." He contends that, based on the State's evidence, a jury could not rationally find defendant guilty beyond a reasonable doubt.
A trial judge may only "set aside the verdict of the jury as against the weight of the evidence" when "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The trial judge must give "due regard to the opportunity of the jury to pass upon the credibility of the witnesses[.]" Ibid. The trial court's ruling on a motion to set aside a verdict on the ground that it was against the weight of the evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.
We are convinced from our review of the record that the trial judge correctly found that the jury's verdict in this case did not represent "a manifest denial of justice under the law."
R. 3:20-1. We reject defendant's contention that the jury's determination represents a "case of mistaken fact-finding." Although defendant maintains that the State's evidence is "incredible," it was the jury's role to weigh the credibility of the witnesses. We perceive no basis to depart from the general principle that "[c]rediblity is truly an issue for the jury." State v. Haines, 20 N.J. 438, 446 (1956). Therefore, we conclude that the judge's decision to deny defendant's motion for a new trial was not "a miscarriage of justice under the law." R. 2:10-1.
We turn to defendant's contention that his sentences are excessive.
Here, the judge granted the State's motion for imposition of extended terms pursuant to N.J.S.A. 2C:43-6f on counts three and seven (charging possession of CDS with intent to distribute within 1000 feet of school property). The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). As to count nine (resisting arrest) and count eighteen (aggravated assault), the judge found a mitigating factor under N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm), and treated defendant's remorse as a mitigating factor. The judge concluded that the aggravating factors substantially outweighed the mitigating factors.
The judge merged counts one, two and three with count four (possession of CDS with intent to distribute within 500 feet of a public housing facility) and sentenced defendant to a seven-year term of incarceration, with a three-and-one-half-year-period of parole ineligibility. The judge also merged counts five, six and seven with count eight (possession of CDS with intent to distribute within 500 feet of a public housing facility), and sentenced defendant to a concurrent seven-year term with a three-and-one-half-year-period of parole ineligibility. In addition, the judge imposed concurrent four-year terms on count nine (resisting arrest) and count eighteen (aggravated assault), and ordered that they be served consecutively to the sentences imposed on counts four and eight.
Defendant argues that the judge erred in her findings regarding the aggravating and mitigating factors. We disagree. We are satisfied that there is ample support in the record for the judge's findings of aggravating and mitigating factors, and for the judge's conclusion that the aggravating factors substantially outweighed the mitigating factors.
However, we are convinced that re-sentencing is required. We have determined that defendant's convictions on counts four and eight must be set aside. Consequently, the judge's order merging counts one, two and three with count four, and counts five, six and seven with count eight, must be vacated. Therefore, on remand, defendant shall be sentenced, after appropriate mergers, on the counts one, two and three, as well as on counts five, six and seven. See State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.) (noting that convictions merged upon sentencing are "are not extinguished"), certif. denied, 137 N.J. 313 (1994).
The State argues that even if the convictions on counts four and eight are reversed, the sentences on the remaining counts should be affirmed. The State points out that the judge could have imposed the same sentences on counts three and seven as she imposed on counts four and eight. We recognize that at sentencing the judge stated that the sentences on counts four and eight were the same sentences that would have been imposed if the judge were sentencing defendant on counts three and seven. Nevertheless, the judge did not sentence defendant on counts three and seven. Moreover, because the judge granted the State's motion for extended term sentences on counts three and seven, the sentences must be imposed in accordance with State v. Thomas, 188 N.J. 137, 154 (2006).
Therefore, we reverse defendant's convictions on counts four and eight and affirm defendant's convictions on the other counts. We vacate the merger of counts one, two and three with count four; and the merger of counts five, six and seven with count eight. We remand for re-sentencing in conformance with this opinion.
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