May 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE ALSTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1738-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Graves and Alvarez.
On January 31, 2006, a jury convicted defendant, George Alston, of third-degree possession of heroin (count one of Hudson County Indictment No. 04-10-1738); third-degree possession of heroin with intent to distribute (count two); third-degree possession of heroin with the intent to distribute within a school zone (count three); third-degree distribution of heroin (count five); and third-degree distribution of heroin within a school zone (count six). Prior to trial, counts four and seven were dismissed at the request of the prosecutor, and the jury was unable to reach a unanimous verdict on count eight, which charged defendant with resisting arrest. Count eight was subsequently dismissed on motion by the prosecutor.
On February 6, 2006, pursuant to a negotiated plea agreement, defendant pled guilty to third-degree possession of heroin with intent to distribute within a school zone (count three of Hudson County Indictment No. 05-03-0449), and third-degree aggravated assault (count nine). In return for the guilty pleas, the State agreed to request the dismissal of the remaining counts of the indictment, and to recommend an eight-year sentence with four years of parole ineligibility on count three and a four-year sentence on count nine. The State also agreed to recommend that these sentences would be concurrent with the sentence imposed on Indictment No. 04-10-1738.
At sentencing on April 13, 2006, counts one, two, three, and five of Indictment No. 04-10-1738 were merged into count six (third-degree distribution of heroin within a school zone). Because he was a repeat drug offender, defendant was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and the court imposed a ten-year prison sentence with five years of parole ineligibility on count six. On Indictment No. 05-03-0449, defendant was sentenced in accordance with the plea agreement to an eight-year concurrent term with a four-year period of parole ineligibility on count three, and a four-year concurrent term on count nine. Appropriate fees and penalties were also imposed.
On appeal, defendant makes the following arguments:
POINT I DEFENSE COUNSEL'S INEFFECTIVE AND INADEQUATE CROSS-EXAMINATION OF THE STATE'S KEY WITNESS ENABLED THE OFFICER TO GIVE HIGHLY PREJUDICIAL HEARSAY TESTIMONY, REINFORCED HIS DIRECT TESTIMONY, FAILED TO CHALLENGE THE ACCURACY OF THE OFFICER'S OBSERVATIONS, AND ENHANCED HIS CREDIBILITY AS AN EXPERT IN NARCOTICS ENFORCEMENT. ACCORDINGLY, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, WHICH DENIED HIM A FAIR TRIAL. U.S. CONST. AMEND. VI & XIV; N.J. CONST. (1947) ART. I, PAR. 10.
A. DEFENSE COUNSEL'S OPEN-ENDED QUESTIONS TO THE OFFICER ENABLED HIM TO GIVE HIGHLY PREJUDICIAL HEARSAY TESTIMONY THAT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHTS.
B. THE OFFICER'S TESTIMONY, EVEN IF RELEVANT, SHOULD HAVE BEEN EXCLUDED BECAUSE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.
C. THE OTHER DEFICIENCIES IN DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE OFFICER CONTRIBUTED TO UNDERMINING DEFENDANT'S RIGHT TO A FAIR TRIAL AND CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED DEFENDANT A FAIR TRIAL WHEN THE COURT FAILED TO, SUA SPONTE, INSTRUCT THE JURY TO DISREGARD THE OFFICER'S TESTIMONY THAT DEFENDANT HAD COMMITTED OTHER CRIMINAL ACTS.
N.J. COURT RULE 2:10-2; N.J.R.E. 404(b); U.S. CONST. AMEND. VI & XIV; N.J. CONST. (1947) ART. I, PAR. 10.
POINT III BECAUSE THE TRIAL COURT ERRONEOUSLY APPLIED AGGRAVATING FACTORS, FAILED TO FIND APPLICABLE MITIGATING FACTORS, AND IMPOSED A SENTENCE THAT SHOCKS THE JUDICIAL CONSCIENCE, THE TEN[-]YEAR SENTENCE WITH A FIVE[-]YEAR PAROLE DISQUALIFIER [THE MAXIMUM EXTENDED TERM FOR A THIRD[-]DEGREE OFFENSE] MUST BE REDUCED.
After considering these arguments in light of the record and the applicable law, we conclude defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). But a few comments are in order.
While conducting surveillance at a location known as a "high narcotics selling area" at approximately 9:00 a.m. on Monday, May 3, 2004, Jersey City Police Officer Dino Nerney testified he observed defendant sell drugs to someone who was later identified as Billy Weeks. According to Nerney, defendant walked past his location and was about fifty feet away when Nerney observed Weeks and defendant engage in a brief conversation. After Weeks handed money to the defendant, Nerney saw defendant take a "bundle of suspected CDS heroin out of his right pocket," and hand "the buyer more than one bag."
As Weeks was walking from the area, he was stopped by other police officers who advised Nerney "that the buyer was positive for two bags of heroin." Defendant was then arrested and, after "a brief struggle," was taken into custody. When searched incident to his arrest, defendant had eight bags of heroin in his right front pants pocket and currency totaling $797.
Defendant elected not to testify at his trial, and he did not call any witnesses. During his opening statement, defendant's attorney told the jury that "Mr. Alston stands before you on trial having been falsely accused of various narcotics-related offenses." He also told the jury "the credibility of the officers . . . [is] at the heart of this case," and he expected to show, through cross-examination of the police officers, "there has been continuing harassment of Mr. Alston, [since] the date of his arrest on May 3rd, 2004, almost up until the date of this trial." Thus, the trial's outcome undoubtedly depended on the jury's assessment of the testimony of Officer Nerney and the two other police officers who testified for the State.
To successfully argue trial counsel did not provide the level of assistance required under the Sixth Amendment, a "defendant must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987). In this case, based on our examination of the record, we conclude defendant has failed to satisfy both prongs of the Strickland/Fritz test.
Defendant's second point is equally without merit. During cross-examination of Officer Nerney, there was passing reference to another incident when defendant allegedly "bit one of the officers." This testimony came in response to a question from defendant's attorney and any possible prejudice was harmless beyond a reasonable doubt.
Defendant also challenges his sentence, but he does not dispute he was subject to a mandatory extended term. After thoroughly reviewing defendant's criminal history, the court found "the aggravating factors substantially preponderate over the mitigating factors. And, truly, Mr. Alston deserves the extended term in the maximum range." Based on our review of the record, we are satisfied the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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