April 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNEST GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 99-09-1213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2008
Before Judges Lintner and Alvarez.
On January 11, 2001, a jury convicted defendant, Ernest Green, of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3), and second-degree distribution of cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Defendant qualified for a mandatory extended term, N.J.S.A. 2C:43-6f, and, on June 1, 2001, he was sentenced to eighteen years imprisonment with eight years of parole ineligibility on the second-degree conviction.*fn1 A concurrent five-year term with two years of parole ineligibility was imposed on the third-degree offense. On April 1, 2003, in an unreported per curium opinion, we affirmed the conviction but vacated the sentence on the third-degree offense, noting that the third-degree conviction should be merged with the second-degree offense. We determined, however, that the sentence imposed on the second-degree offense did not constitute an abuse of discretion nor was it manifestly excessive or unduly punitive. Defendant's Petition for Certification was denied on July 21, 2003. State v. Green, 177 N.J. 496 (2003).
On October 10, 2003, defendant filed a pro se motion for post conviction relief (PCR). A letter brief, dated May 19, 2005, amending defendant's PCR motion was filed by counsel, challenging the admission of testimony of the drug expert called by the State based on ineffective assistance, asserting counsel failed to object to the expert's qualifications. Defendant also challenged the sentence, claiming it was (1) violative of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) and (2) excessive when compared to the recommended sentence provided by the State's final plea offer.
On May 9, 2006, Judge Malone rendered a written opinion denying defendant's motion. Addressing defendant's Blakely contentions, the judge noted that defendant was not entitled to retroactive application because his case was not on direct appeal at the time of the decision in State v. Natale (Natale II), 184 N.J. 458, 495-096 (2005). Rejecting defendant's assertion that his sentence was excessive, Judge Malone pointed out that on direct appeal defendant raised, and the appellate panel rejected, defendant's argument that his sentence was excessive. Declining to consider defendant's claim of disparity between the sentence imposed and his rejected plea offer, Judge Malone determined that the issue was procedurally barred because it should have been raised on direct appeal. Finally, rejecting his claim of ineffective assistance of counsel, Judge Malone pointed out that the trial record reflected that defense counsel objected to the State's expert witness on qualification, relevancy, and repetitive grounds. Judge Malone also concluded that the issue of admissibility of the expert's opinion was also barred from being raised on PCR because it was not raised on appeal.
Defendant appeals, raising the same arguments, specifically:
POINT ONE THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (NOT RAISED BELOW.)
POINT TWO DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED, BY THE U.S. CONST., AMENDS. VI XIV; N.J. CONST. ART. I PAR. 10, WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE SCOPE OF THE EXPERT TESTIMONY AND WHEN APPELLATE COUNSEL FAILED TO RAISE THE ISSUE ON DIRECT APPEAL.
POINT THREE THE COURT COMMITTED ERROR IN APPLYING R. 2:22-3 AS A PROCEDURAL BAR TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT FOUR THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
We reject defendant's contentions and affirm substantially for the reasons expressed by Judge Malone in his letter opinion of May 9, 2006.
We focus first on defendant's Point One and Point Two contentions challenging the testimony of the State's narcotics experts. Ordinarily PCR cannot be used to circumvent issues that could have, but were not raised on appeal. State v. Afanador, 151 N.J. 41, 50 (1997); R. 3:22-4. However, a court may grant relief from that procedural bar if enforcement of the bar would result in a fundamental injustice. R. 3:22-4. Defendant asserts that the judge erred in determining that admission of the expert's opinion was procedurally barred because it amounted to a fundamental injustice. He maintains that the State's expert impermissibly infringed upon the jury's function by testifying as to how dealers avoid being caught possessing drugs and money. He also contends that he received ineffective assistance of trial and appellate counsel because they failed to raise the issue on his behalf. We address those issues by first reciting the relevant facts.
Sergeant Michael Richards of the Plainfield Police Department, while conducting a drug surveillance in a high narcotics area in Plainfield with Special Agent Morgan Young of the Drug Enforcement Agency (DEA), observed a group of three African-American men, acting in concert, participate in what appeared to be multiple drug transactions for money, the last transaction occurring between defendant and Avery Williams. During those transactions, defendant left the area for a short time with co-defendant Antonio Frazier and then reappeared. Richards saw defendant exchange money for a small object that Richards suspected was drugs with an unidentified Caucasian male who had walked into the area, while the third African American participant, Damon Spencer, looked up and down the street, apparently keeping watch. Defendant then walked over to Frazier and handed Frazier what appeared to be money.
In a subsequent transaction, Richards saw Avery Williams hand defendant money in return for a small object while Spencer kept watch by glancing around the area. Defendant again walked over to Frazier and then walked to an area beyond Richards' view. Williams was apprehended with two bags of cocaine on his person. Although defendant had no drugs or money in his possession, $138 was recovered from Frazier.
The State called Detective Michael Burns of the Union County Prosecutor's Office Narcotic Strike Force as an expert. Burns attended two eighty-hour courses offered by the DEA and two forty-hour courses given at John Jay College by the High Intensity Drug Trafficking Areas Task Force. He also attended a forty-hour and two sixteen-hour courses in narcotics investigation given by the Statewide Commanders Association. He is a member of the Narcotics Enforcement Officers Association and, as of the time of his testimony, had been involved in narcotics investigations for the Strike Force for six and one-half years. Burns testified essentially to the mechanics of drug transactions, explaining to the jury the use of multiple persons and a stash area to insure that, when arrested, a dealer is not in possession of either drugs or money.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. In fact, opinion testimony may be permitted even if it embraces the ultimate issue to be determined by the trier of fact.
N.J.R.E. 704. Whether such testimony is admissible rests in the trial court's discretion. State v. Summers, 176 N.J. 306, 312 (2003).
Generally, courts agree that expert testimony about drug-trade practices is admissible given that most jurors are unschooled in the practices of drug dealers, although the extent and nature of such testimony may differ depending on the circumstances of the cases. See, e.g., State v. Berry, 140 N.J. 280, 293-95 (1995). Indeed, information regarding the practices of drug dealers has been considered specialized knowledge for which an expert opinion may be sought to assist a jury. State v. Odom, 116 N.J. 65, 73 (1989). An expert may be asked to give an opinion, based on the facts in evidence, whether the drugs were possessed for distribution or personal consumption. Summers, supra, 176 N.J. at 314. "His or her opinion can be 'expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute,' but it cannot contain an explicit statement that 'the defendant is guilty of the crime charged under the statute.'" Id. at 314-15 (quoting Odom, supra, 116 N.J. at 80-81).
The record reflects that Burns was qualified as an expert and his testimony did not include a specific opinion as to defendant's guilt. It did not impermissibly infringe on the jury's function nor suffer the infirmities we found existed in State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Accordingly, had trial counsel raised the specific objection raised now on appeal, it would have been unavailing. Contrary to defendant's contention, Burns' testimony did not result in a fundamental injustice sufficient to afford relief from the procedural bar. R. 3:22-4. Beyond that, as Judge Malone noted, trial counsel objected to Burns' testimony on qualifications and substantive grounds. The judge properly rejected defendant's assertion that he received ineffective assistance of both trial and appellate counsel.
Ordinarily, an excessive "'sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction.'" State v. Flores, 228 N.J. Super. 586, 592 (App. Div. 1988) (quoting State v. Clark, 65 N.J. 426, 437 (1974)), certif. denied, 115 N.J. 78 (1989). Moreover, PCR is precluded where the issue is substantially equivalent to that previously decided on direct appeal. R. 3:22-5; Afanador, supra, 151 N.J. at 51.
Although excessive sentence normally can be raised only on direct appeal from the conviction, that rule may be, and has been, relaxed in certain egregious circumstances. Clark, supra, 65 N.J. at 437 (1974). To be sure, any rule may be relaxed if adherence to it would result in an injustice. R. 1:1-2. We see no reason to relax the rule here. Simply stated, defendant's contentions respecting the extent of his sentence is "substantially equivalent" to the issue adjudicated on its merits in defendant's direct appeal. State v. McQuaid, 147 N.J. 464, 484 (1997) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed. 2d 438, 444 (1971)). Our previous determination is dispositive of the issues defendant raises in Points Three and Four of his appellate brief. Accordingly, Judge Malone correctly found that defendant was foreclosed from reasserting them on PCR. R. 3:22-5.