March 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER L. DAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 93-08-1195-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 9, 2008
Before Judges Wefing, R. B. Coleman, and Lyons.
Tried to a jury, defendant was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 5(b)(1); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant was arrested in 1993, and his trial took place in 1995. Defendant did not appear for his trial, and he was tried in absentia. Defendant was not sentenced until 2005. At defendant's sentencing, the trial court granted the State's motion to impose a mandatory extended sentence. It merged defendant's conviction for possession of cocaine into the conviction for possession of cocaine with intent to distribute and sentenced defendant to twenty years in prison, with a sixand-two-third-year period of parole ineligibility. It also imposed a concurrent sentence of eighteen months for resisting arrest. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was arrested on the afternoon of January 21, 1993, in the vicinity of the George Washington Bridge. Officer Michael Buchholz of the Port Authority Police Department was on routine patrol driving westbound on the bridge when he saw a Ford Mustang several car lengths in front of him zigzagging between lanes, including a lane on the far right side that was closed due to construction. Buchholz signaled the driver of the Mustang to pull over in an area off the bridge. Two men were in the car; defendant was the driver and Robert Irving the passenger. Buchholz asked defendant for his license, registration and insurance card. In response, defendant produced only a rental agreement for the car. Buchholz asked defendant to get out of the car, and he did so. Buchholz observed that defendant appeared to be unsteady on his feet and that he was constantly moving and acted in an antagonistic fashion. Defendant's speech was slurred and his eyes watery and bloodshot. Based upon those observations, Buchholz concluded that defendant was under the influence of a controlled dangerous substance. Buchholz told defendant he was under arrest and instructed him to place his hands on the car roof. Buchholz placed his hands on defendant's back in order to frisk him and felt a lump in the back of defendant's jacket. He then told defendant to place his hands behind his back to be cuffed. Defendant turned around, pushed Officer Buchholz, slipped out of the jacket and fled. Officer Buchholz pursued him while another officer remained behind with Irving and the car. Buchholz chased defendant across a number of lanes of traffic, up a flight of stairs and through an intersection until finally apprehending him. Other officers arrived to assist. Defendant was searched after he was finally apprehended. The search turned up a plastic bag and a small foil packet, both of which contained a white powder.
Buchholz returned to the car while defendant was taken to headquarters. Buchholz searched the jacket defendant had discarded and found several other plastic bags containing a white powder. A search of the car turned up one more plastic bag with white powder that had been placed under the front passenger seat. Irving was placed under arrest. A search of his person turned up $582 in cash in his pocket.
At headquarters, Buchholz placed all of the plastic bags and the foil packet into an evidence bag and filled out a request for laboratory analysis of the contents. The cash that had been recovered from Irving was placed in a safe at headquarters.
When Officer Buchholz filled out the lab request, he indicated he was submitting six plastic bags for testing, but he identified them as "2" through "6." He testified this was a labeling error on his part. The lab discovered the mistake when it opened the sealed evidence bag; it renumbered the fifth and sixth bags "6-1" and "6-2."
Defendant and his passenger were both African-Americans and the car defendant was driving had a Virginia license tag. Defendant brought a motion to suppress, based in part on his contention that the stop of his car represented selective enforcement. His efforts to obtain access to the records containing information about the arrests made by Officer Buchholz were unsuccessful, and he served a subpoena on the personnel director of the Port Authority Police Department for Buchholz's overtime records for the years 1992 and 1993. The trial court granted the State's motion to quash the subpoena, noting both that the procedure was incorrect and that any application for such records should have been made well in advance of the hearing on the suppression motion. After hearing the testimony of Officer Buchholz and the argument of counsel, the trial court denied the motion to suppress.
At trial, the State presented the testimony of Officer Buchholz; one of the officers who assisted him in arresting defendant; Investigator Erik Baum, who qualified as an expert in the field of narcotics trafficking; and Ajit Tungare, the technical director of the State Police laboratory where the plastic bags were sent to have their contents tested. Mr. Tungare testified because the chemist who performed the actual testing procedures was unavailable due to illness and her supervisor was on vacation. His testimony was based upon a review of the laboratory report, the notes of the chemist, data generated from the test procedures and conversation with the chemist. Defendant did not present any witnesses.
In addition to the offenses of which defendant was convicted, he was originally charged with possession of cocaine within one thousand feet of school property, N.J.S.A. 2C:35-7; aggravated assault, N.J.S.A. 2C:12-1(b)(5); and an additional count of resisting arrest, N.J.S.A. 2C:29-2. The trial court dismissed the school zone charge and one count of resisting arrest. The jury found defendant not guilty of aggravated assault.
On appeal, defendant raises the following arguments.
THE TRIAL COURT ERRED IN ADMITTING THE MISLEADING LABORATORY REPORT WHICH INCORRECTLY STATED THAT THE SUBSTANCES IN ALL OF THE PLASTIC BAGS HAD BEEN TESTED AND WERE POSITIVE FOR COCAINE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PRE-TRIAL MOTION TO PERMIT INSPECTION OF ARREST RECORDS OF OFFICER BUCHHOLZ.
THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANT ACCESS TO POLICE RECORDS DETAILING OVERTIME OF OFFICER BUCHHOLZ.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE OF EVIDENCE.
DEFENDANT'S SENTENCE SHOULD BE VACATED AND REMANDED FOR RE-SENTENCING PURSUANT TO THE DECISION IN STATE V. NATALE II.
Mr. Tungare testified that when the laboratory receives multiple items in connection with the same matter it does not test all of those items but engages in random sampling. He described the procedure in the following manner:
The normal procedure is to receive evidence and make observations as to what the specimens are, and make sure that the specimens that are selected for random selection appear to be the same, have the same characteristics, there's no differences between the packaging, there's no differences between the texture of the material, and so on, and once that is done you select samples at random, minimum two, and . . . up to ten percent.
Mr. Tungare testified that in the instant matter, three of the six bags were chemically tested for cocaine. Each of the three was weighed; one weighed 27.91 grams, one 28.21 grams and one 28.00 grams, for a total weight of 84.12 grams, or just under three ounces. The six bags had a combined weight of 167.30 grams or 5.90 ounces; the foil packet recovered from defendant contained .99 grams, or .035 ounces.
In conjunction with Mr. Tungare's testimony, the trial court admitted into evidence the certified laboratory report prepared by the chemist who had conducted the actual testing. This report listed in two separate categories the tin foil packet and the plastic bags and referred to the latter as specimen 2 through 6 with a total weight of 167.30 grams. The report showed each category being positive for cocaine.
Defendant argues on appeal that the trial court erred when it admitted into evidence the certified laboratory report. The basis of defendant's objection is that the report erroneously indicates that all of the samples submitted to the laboratory were chemically tested to detect cocaine when in fact only three of the six bags were tested. Admission of the report, defendant contends, had the capacity to mislead the jury.
We disagree. Mr. Tungare was questioned extensively before the jury as to the laboratory's random sampling procedure, and defense counsel stressed that procedure in summation, attempting to persuade the jury that the random procedure did not allow it to determine beyond a reasonable doubt that all of the bags contained cocaine. The jury could not have been misled in this regard.
Defendant also contends that the admission of this report was erroneous and harmful because the State did not supply to defendants twenty days in advance of trial a copy of the certified laboratory report and all reports related to the analysis performed, in particular, the notes of the chemist that Mr. Tungare utilized in the course of his testimony. N.J.S.A. 2C:35-19. We do not consider it reversible error in the context of this matter.
We note first that defendants did not make a timely objection to use of the laboratory report. Further, when the existence of the notes prepared by the chemist became known, the trial court conducted an extensive Rule 104 proceeding to afford defense counsel the opportunity to question Mr. Tungare about these notes and any other reports which might exist. Finally, this matter was tried in 1993. State v. Simbara, 175 N.J. 37 (2002), which clarified the parties' respective responsibilities under N.J.S.A. 2C:35-19, was not issued until more than seven years after defendant's trial.
Defendant also challenges the denial of his pre-trial motion seeking to inspect the records relating to arrests made by Officer Buchholz. Defendant sought those records in connection with pursuing a claim of selective enforcement on the basis of race or out-of-state residence.
A defendant has a right to such discovery "if he can show that he has a 'colorable basis' for a selective prosecution claim." State v. Kennedy, 247 N.J. Super. 21, 31 (App. Div. 1991). Thus, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Id. at 32 (quoting United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974)).
Here, defendant presented the following material in support of his motion: the indictment, a copy of the grand jury transcript, an excerpt from the original complaint against him that Buchholz issued, a list of arrests made by Buchholz, a letter from his investigator detailing his efforts to review Buchholz's arrest records, and a copy of a newspaper article referring to the amount of overtime hours Buchholz had accumulated as a result of his having made a large number of arrests. We agree with the trial court that this was far too slim a reed to justify granting defendant's motion. Defendant's assertion that a review of these arrest records would demonstrate a pattern of selective enforcement on the part of Officer Buchholz rests entirely on speculation.
Defendant argues that he was entitled to review these arrest reports under the Right to Know Law, N.J.S.A. 47:1A-1 to -4. At the time of defendant's trial, this statute defined public records in the following manner:
[R]ecords which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof (each of which is hereinafter referred to as the "custodian" thereof) shall, for the purposes of this act, be deemed to be public records. [N.J.S.A. 47:1A-2.]
This statute grants to members of the general public a broad right of access to public documents. The courts strictly construe the requirement that a document is "required by law to be made, maintained or kept on file" to constitute a public document. Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 43-44 (1995). We reject defendant's argument that the uniform crime reporting system established under N.J.S.A. 52:17B-5.1 is sufficient to infuse an arrest report with the qualities of a public record for purposes of the right to know statute. That statute requires law enforcement agencies to submit certain statistical information to the Attorney General on a monthly basis; it does not require those agencies to maintain or keep arrest records on file.
Defendant's next contention is that the trial court erred when it quashed the subpoena he issued seeking records dealing with the amount of overtime hours Officer Buchholz worked. We see no error, for several reasons. First, the subpoena was served unreasonably late, particularly in light of the fact that defendant knew for almost one year in advance that his motion to inspect the arrest records had been denied. Further, as the trial court pointed out, defendant was free to cross-examine Officer Buchholz on that issue and to call the author of the newspaper article. There is no showing how the outcome might have been affected if the trial court had left the subpoena in place.
We also reject defendant's next argument--that the trial court erred in denying his motion to suppress. "A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002). Here, Officer Buchholz testified at the motion to suppress as to the observations he made of the manner in which defendant was driving his vehicle, zigzagging across three different lanes. Those observations clearly gave Officer Buchholz a reasonable, articulable suspicion to stop defendant. Defendant's argument on appeal, stripped to its essence, is a challenge to the credibility of the testimony given by Officer Buchholz during the motion hearing. We may not, however, revisit on appeal the credibility determinations of the trial court. State v. Locurto, 157 N.J. 463, 474 (1999).
Defendant's final argument relates to his sentence. He relies upon the principles enunciated by the Supreme Court in State v. Natale, 184 N.J. 458 (2005). As State v. Thomas subsequently explained, however, the constitutional problems addressed in Natale do not adhere to a mandatory sentence imposed under N.J.S.A. 2C:43-6(f). 188 N.J. 137, 151-52 (2006).
Defendant's convictions and sentence are affirmed.
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