March 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD HINTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-02-0210-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Yannotti and LeWinn.
Defendant, Ronald Hinton, was charged under a Passaic County indictment with possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count four); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count five); possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count six); and resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven). All charges were for third-degree offenses, except resisting arrest which was an offense of the fourth degree.
Defendant was tried to a jury and found guilty on all charges. At sentencing, the judge granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). On count three, the judge imposed a ten-year term, with a five-year period of parole ineligibility. On count six, the judge imposed a concurrent five-year term, with a three-year period of parole ineligibility. On count seven, defendant received a concurrent eighteen-month term. The remaining counts were merged with either counts three or six.
Defendant raises the following issues on appeal:
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNADAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM (Not Raised Below)
THE STOP OF DEFENDANT WAS NOT BASED ON ANY REASONABLE AND ARTICULATE SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPPRESSING THE EVIDENCE.
U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1 AND 10 (Not Raised Below)
BASED ON A CAREFUL SCRUTINY OF THE TOTALITY OF THE CIRCUMSTANCES, A GUILTY VERDICT ON THE CHARGE OF RESISTING ARREST WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED (Not Raised Below)
THE COURT BELOW ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED SENTENCE
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR
We have thoroughly reviewed the trial record in light of the arguments raised by defendant, and the applicable law. For the reasons that follow, we affirm defendant's convictions and the sentences imposed.
With the exception of his contention that the judge erred by denying his motion for a judgment of acquittal on the resisting arrest charge, none of defendant's claims of trial error were raised at trial. Accordingly, those contentions must be reviewed under the standard of "plain error." That standard compels us to "disregard" such errors unless we find any one or more of them "to have been clearly capable of producing an unjust result[.]" R. 2:10-2. "It is fundamental . . . that a claim of error which could have been but was not raised at trial will not be dealt with as would be a timely challenge. . . .
[E]xcept in extraordinary circumstances, a claim of error will not be entertained unless it is perfectly clear that there actually was error." State v. Macon, 57 N.J. 325, 333 (1971). With that standard of review in mind, we briefly address defendant's claims.
We first consider defendant's contention that the prosecutor, in her summation, improperly characterized the currency found on him when he was searched immediately upon his arrest. Defendant was found with $212 in cash, comprised of thirty-seven $1 bills, five $5 bills, five $10 bills and five $20 bills. Defendant contends the prosecutor improperly described this currency as evidence of drug sales.
We view the prosecutor's statements as fair comment on the evidence, particularly in light of defense counsel's argument, on summation, that "the money [defendant] had on him should not be held against him. He had been working." Under the circumstances, we do not find anything improper about the prosecutor's comments. Contrary to defendant's arguments, the assistant prosecutor did not provide the jury with an expert opinion that the denominations of currency defendant was carrying were indicative of drug distribution.
Even if we were to conclude that the prosecutor's remarks went beyond fair comment on the evidence, we are convinced that the remarks did not rise to the level of being "'so egregious that [they] deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001)(quoting State v. Frost, 158 N.J. 76, 83 (1999)).
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. [State v. Frost, supra, 158 N.J. at 83-84 (citations omitted).]
Defendant's guilt essentially depended on whether the jury believed the testimony of two police officers as to the drug transaction and ensuing behavior in which they observed defendant engage. In his charge, the judge properly instructed the jury: "Arguments, statements, remarks, openings, summations, of [c]counsel are not evidence and must not be treated as evidence. Although the attorneys may point out what they think important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial." (Emphasis added.) We believe this instruction was sufficient to mitigate any possible prejudice to defendant from the prosecutor's comments in summation.
Defendant next argues that the police did not have a reasonable suspicion to stop him, and that the stop violated his federal and state constitutional rights. Defendant contends the stop was based only upon the police officers' observations of an exchange of currency. Defendant additionally argues that he was denied the effective assistance of counsel because his attorney did not move to suppress the evidence obtained after the stop.
We agree with the State that defendant waived his right to challenge the constitutionality of the police conduct by his failure to file a timely motion to suppress. Rule 3:5-7(f) expressly provides: "If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."
Nonetheless, we conclude the record demonstrates that the police officers had probable cause to stop and arrest defendant for the drug offenses charged. The officers were conducting a daylight patrol of a neighborhood within 1000 feet of a school, known to be a high drug-trafficking area where several drug-related offenses had previously occurred. As they were driving slowly down Governor Street in their unmarked police vehicle, the officers observed defendant descend the front steps of 157 Governor Street, encounter an individual, reach into his right front pocket, withdraw "what appeared to be" a medium clear plastic bag, retrieve a small object from the bag, hand it to that individual, and receive "paper money" from that individual in exchange.
We are convinced that, under "the totality of the circumstances[,]" State v. Moore, 181 N.J. 40, 46 (2004), the police had probable cause to stop and arrest defendant, and to conduct a search incident to that arrest. They had a "'well-grounded suspicion that a crime ha[d] been or [was] being committed.'" State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).
Having thus concluded that defendant's constitutional claim is without merit, we also reject as meritless his ineffective assistance of counsel claim.
Because we conclude that the police had probable cause to arrest and search defendant, there is no merit to defendant's Fourth Amendment claim. Simply stated, a motion to suppress . . . would have failed. It is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . . Consequently, we need not address defendant's ineffective assistance of counsel argument[.] [State v. O'Neal, 190 N.J. 601, 619 (2007).]
We next consider defendant's argument that the judge erred by denying his motion for a judgment of acquittal on the resisting arrest charge.
Defendant was charged under N.J.S.A. 2C:29-2(a)(2), which provides: "[A] person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." To violate that statute, "a defendant must have reason to know that a law enforcement officer is attempting to effect the arrest[.]" State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994).
[T]he general offense of resisting arrest may be found to have been committed . . . so long as the accused has purposely sought to prevent the police officer from effecting an arrest. . . . [F]light knowingly intended to prevent a police officer from effecting an arrest of the fugitive constitutes guilt of the common-law crime of resisting arrest. [State v. Blanton, 166 N.J. Super. 62, 71 (App. Div.), certif. denied, 81 N.J. 265 (1979).]
Officer Patterson testified that, upon witnessing the transaction between defendant and another individual in front of 175 Governor Street, Officer Robinson parked their vehicle close to the curb, opened the car door and "yelled out 'police detectives.'" Defendant and the other individual ran in different directions, and both officers gave chase.
Robinson's testimony was consistent with Patterson's. Robinson testified that he pulled the car to the curb after witnessing the transaction, and stopped directly in front of the two individuals who started running as soon as the car pulled over. Both officers immediately exited the car and identified themselves as police officers. Robinson stated his badge was visible at this time. The men continued to run after Robinson and Patterson announced that they were police officers. The officers then chased and apprehended the two individuals.
Defendant contends that the police officers' failure to utter "you're under arrest" leads to the conclusion that "defendant did not, in fact, resist an arrest." This argument misses the point. No formulaic announcement is required for the police to set an arrest in motion. So long as a police officer is "engaged in the performance of his duties, . . . it is the duty of the citizen to submit[.]" State v. Mulvihill, 57 N.J. 151, 155-56 (1970). The statute is cast in terms of an individual "prevent[ing] a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2) (emphasis added). The dictionary defines the verb "effect" as "[t]o bring about" or to "make happen." See Black's Law Dictionary 533 (7th ed. 1999)
The police officers were clearly attempting to "bring about" defendant's arrest based on the transaction they had observed. The trial judge properly reached this conclusion. In denying defendant's motion for judgment of acquittal on the resisting arrest charge, the judge succinctly summarized the evidence as follows: "[The police] pulled directly in front of the two individuals. Badge was visible and police presence was announced. Both men ran. The police chased Hinton."
The "broad test for determination" of a motion for judgment of acquittal is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967)(citation removed).]
In light of the undisputed evidence of record, and the favorable inferences to be drawn therefrom, we conclude a reasonable jury could find defendant guilty of resisting arrest. Therefore, the trial judge properly denied defendant's motion for judgment of acquittal on this charge.
Defendant's next point, that the State failed to prove beyond a reasonable doubt the element of intent to distribute drugs, is "without sufficient merit to warrant discussion[.]"
R. 2:11-3(e)(2). No expert testimony was necessary "to vindicate the distribution charge[,]" as defendant contends. The State's uncontradicted evidence speaks for itself.
We turn to the arguments raised by defendant with respect to his sentence.
Defendant seeks relief from his extended-term sentence pursuant to State v. Pierce, 188 N.J. 155 (2006). However, his reliance upon that case is misplaced. Pierce concerned standards applicable to a sentencing court's imposition of a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). Defendant was sentenced to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), based upon his four prior convictions for drug-related offenses (three of which were within school zones). Therefore, appellate review of his sentence is governed by State v. Thomas, 188 N.J. 137 (2006), decided as a companion case to Pierce.
In Thomas, the Supreme Court considered and rejected a constitutional challenge to N.J.S.A. 2C:43-6(f), finding it not to be in violation of the Sixth Amendment's jury trial guarantees. Id. at 151-52.
Procedurally, when a prosecuting attorney makes application under N.J.S.A. 2C:43-6(f), the sole determination for the sentencing court is to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing. No other fact-finding, or collateral assessment of the prior convictions, takes place. The statute does not permit the court to engage in any further analysis because when the predicate prior sentences are present, enhanced sentencing must occur. Thus, the sentencing court's sole fact-finding in respect of whether a defendant meets the requirements for a mandatory enhanced-term sentence, is based on an objective determination--the existence of prior convictions. [Id. at 150-51.]
A defendant subject to a mandatory extended-term sentence under N.J.S.A. 2C:43-6(f) shall be sentenced "within the extended-term range based on aggravating and mitigating factors found to be present." Id. at 154 (emphasis added). Thus, the broader sentencing range applicable to discretionary extended-term sentences under Pierce, supra, 188 N.J. at 169*fn1 , does not apply here.
Except for the fourth-degree resisting arrest charge, for which he received a concurrent term of eighteen months, defendant faced sentencing on third-degree offenses. The extended term for a third-degree offense is between five and ten years. N.J.S.A. 2C:43-7(a)(4), (c). The trial judge sentenced defendant to a ten-year term, "based upon the Court's review of the record[.]" The judge found the following aggravating factors applicable to defendant: the need to deter (#9) and defendant's prior record (#6). N.J.S.A. 2C:44-1(a)(6) and (9). He found no mitigating factors to be applicable.
We reject as without merit defendant's argument that the sentencing judge erred in failing to apply mitigating factor #10, that he is "particularly likely to respond affirmatively to probationary treatment[.]" N.J.S.A. 2C:44-1(b)(10). Defendant has a lengthy prior record. His adult record dates back to 1982, when he received a probationary term for distribution of marijuana. In 1987, 1997, and 2002, he was sentenced to prison terms for his drug-related offenses. We find no abuse of discretion in the trial judge's decision to reject this mitigating factor. The judge's assessment of the aggravating and mitigating factors as applied to this defendant was amply supported by the record.