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State v. McCrary

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RASOOL MCCRARY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, 05-02-0167-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges A. A. Rodríguez and Collester.

Tried to a jury, defendant Rasool McCrary was convicted of third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); third-degree possession of cocaine within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count three); and second-degree possession of cocaine within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 (count four). On December 16, 2005, Judge Marianne Espinosa granted the State's motion for an extended term under N.J.S.A. 2C:46-6(f) and sentenced defendant on count three to a mandatory extended term of eight years with four years of parole ineligibility.

The court then merged counts one, two and four into count three. The court imposed a $5,000 DEDR penalty, $50 lab fee, $50 VCCB penalty, $75 SSCP penalty, $30 LEOTF fine, and suspended defendant's driver's license for six months.

The pertinent testimony at trial was as follows. At approximately 6 p.m. on September 28, 2004, Elizabeth Police Officer James Diorio was sitting in a parked unmarked police car and conducting drug surveillance in the area of 3rd and Court Streets. The weather was overcast and raining when Diorio arrived and saw defendant standing alone on the corner under an umbrella. After about two minutes a man walked into the area, and defendant went to meet him. Following a brief conversation which Diorio could not overhear, the defendant walked to a lower basement window at 255 Court Street, about forty or fifty feet away from Officer Diorio. The defendant reached into the window frame and picked up a plastic bag. Diorio saw him remove a small item from the bag and put it back in the window frame. Defendant walked back to the other man. The man gave defendant money, and the defendant handed him a small object.

A second transaction took place a short time later when another male approached and talked to the defendant, who then walked past a laundromat and out of sight. Co-defendant Fowler then entered the scene and spoke to the man. They walked down the street, and the man handed Fowler what appeared to be United States currency. Fowler walked to some nearby garages and reached into the frame above a garage door to retrieve something. He then returned and handed the man some small objects.

Diorio drove out of the area and called for back-up to meet him three blocks away. Officers Flatley and Mikros responded. They got into Diorio's car, drove to the corner of 3rd and Court Streets, and saw defendant standing in front of a bail bond agency on the corner and Fowler standing in the door of the nearby laundromat. Both men were arrested. Defendant was searched, and $267 was found on him. Fowler was also searched but only one penny was found on him.

While Flatley and Mikros detained defendant and Fowler, Diorio searched the first lower basement window frame at 255 Court Street where he had seen the defendant earlier remove something. Diorio recovered a plastic bag containing thirteen small glass vials of cocaine. When the searched the top of the middle of three garage doors between the laundromat and 253-55 Court Street where he had seen Fowler earlier, Diorio recovered twelve glassine envelopes of heroin. Diorio testified that both transactions were within 1,000 feet of St. Patrick's School and within 500 feet of Jackson Park.

After Diorio's testimony, Union County Prosecutor's Office Detective Kevin Sicola was called as an expert witness on the identification, packaging, use and sale of narcotics. His qualifications were stipulated. Sicola responded to a hypothetical question by the trial prosecutor that the thirteen vials of cocaine possessed by the defendant and the twelve envelopes of heroin possessed by Fowler were possessed with the intent to distribute. He based his opinion on the quantity of cocaine and heroin, the packaging, the money seized from defendant, the use of a "stash," and the nature of the area where high drug activity had previously been observed.

Finally, the State introduced results of laboratory testing indicating a positive result for cocaine as to the substance possessed by defendant and heroin for the drugs held by Fowler. After the State rested, neither defendant nor Fowler testified nor called any witnesses.

Defendant raises the following arguments for consideration on appeal:

POINT I -- THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER DEFENDANTS.

POINT II -- THE TRIAL COURT ERRED BY NOT ENTERING A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE WHICH WAS PLAIN ERROR. (Not Raised Below.)

POINT III -- THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (Not Raised Below.)

POINT IV -- THE TRIAL COURT ERRED BY ADMITTING THE TESTIMONY OF THE EXPERT WITNESS. (Not Raised Below.)

POINT V -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

McCrary moved prior to trial to sever his case from the prosecution of Fowler. The court denied the motion. Defendant argues this ruling constituted reversible error because the State's evidence was of two separate drug transactions from two separate alleged sellers to two different buyers with no connection except the same general location. He further points out there was no conspiracy count in the indictment and asserts there was no proof of a common scheme or plan between defendant and Fowler.

Severance of a joint trial of multiple defendants may be granted when the defendants have allegedly participated "in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." R. 3:7-7.

If the evidence against multiple defendants is largely the same, a joint trial is preferable. State v. Sanchez, 143 N.J. 273, 281-82 (1996); State v. Brown, 118 N.J. 595, 605 (1990). A trial judge has broad discretion in granting or denying a motion to sever, and that determination will be upheld absent a clear abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997).

Neither defendant nor Fowler gave a prior out-of-court statement so that Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968) is not implicated. The defenses presented were not irreconcilable, mutually exclusive or antagonistic. State v. Brown, 170 N.J. 138, 160-62 (2001). There was no showing by defendant that any substantially exculpatory testimony would have been forthcoming if the motion to sever was granted. Sanchez, supra, 143 N.J. at 295. Defendant and Fowler were engaged in the same drug activity in the same area using the same method of placing a stash nearby. Moreover, an inference could be drawn of a common scheme because the defendant apparently referred the second buyer to Fowler for the purpose of heroin rather than the cocaine defendant was distributing. In short, we find no abuse of discretion in denying defendant's motion to sever.

The defendant next argues that he was entitled to an acquittal based upon insufficient evidence is totally without merit. We note initially that there was no motion for judgment of acquittal after the State rested its case so that our standard of review is "plain error." See R. 1:7-2.

Defendant next asserts that the trial judge should have dismissed the case sua sponte because the State produced no evidence that Jackson Park was a public park. Once again defendant did not raise the issue at trial so that our standard of review is plain error. R. 2:10-2. Officer Diorio testified with the aid of a map showing an overhead view of the area within the 500 foot radius of Jackson park and the place where he saw the drug transactions. The map was then introduced into evidence without objection. Obviously, it was conceded by defendant at trial that Jackson Park was a public park. Moreover, the trial judge properly instructed the jury that one of the elements of the offense was that the transaction took place within 500 feet of a public park and that the meaning of "public park" is "a park, recreation facility, or area or playground owned or controlled by a state, county or local government unit." Clearly, the reasonable inference could be drawn by the jury that the activity in question took place within the requisite radius of a public park. See State v. Trotman, 366 N.J. Super. 226, 232-36 (App. Div. 2004).

In asserting that there was insufficient proof that the substances involved in the transaction were cocaine and heroin, defendant argues that there was inadequate proof of the chain of custody of the substances, that Officer Diorio's testimony that the seized substances tested positive for heroin and cocaine was hearsay, and that a laboratory report was not introduced. As to the latter point, under N.J.S.A. 3C:35-19(c), a failure to file a timely notice of objection to a laboratory certificate proffered by the prosecution constitutes a waiver of any objection to its admission into evidence. The record is barren as to any such notice of objection, and in fact, the laboratory certificate indicating that the seized substance possessed by defendant was cocaine was admitted into evidence without objection. Similarly, there was no objection to Officer Diorio's testimony or to the evidentiary chain of custody. We find there was sufficient evidence of a reasonable probability that no tampering with the substances took place. See State v. Brown, 99 N.J. Super. 22, 27-28 (App. Div.), certif. denied, 51 N.J. 468 (1968), cert. denied, 532 U.S. 931 (2001).

Defendant next argues for the first time that although the court properly charged the jury on expert witnesses prior to the testimony of Detective Sicola, the court erred by not re-charging the jury on expert witnesses at the end of the case. There is no merit to the argument. In State v. Sharpless, 314 N.J. Super. 440, 456 (App. Div. (1998), the same argument was made, and we held there was no error and that the failure to request such a charge led to the conclusion that the defendant considered the general credibility charge given by the judge to be sufficient.

Defendant's final argument relating to his conviction focuses on the prosecutor's summation and asserts that some of the prosecutor's remarks were so egregious as to deprive him of a fair trial and mandate reversal. We find that the trial prosecutor's comments generally reflected a fair commentary on the evidence. The only objectional comment was the statement that Fowler may have given any money he received from the drug transaction to defendant. An objection was made, and the court properly gave a curative instruction appropriate for the circumstances.

Finally, as to defendant's sentence, we find that trial judge properly sentenced the defendant to an extended term pursuant to N.J.S.A. 2C:43-6(F). However, since the sentence was above the then presumptive term, we must remand to insure compliance with State v. Thomas, 188 N.J. 137, 153-54 (2006) and State v. Natale, 184 N.J. 458 (2005).

Affirmed as to convictions. Remand for re-sentencing.

20080225

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