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State v. Philway

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RYAN PHILWAY, DEFENDANT-APPELLANT.

On appeal from the State of New Jersey, Law Division, Essex County, Indictment No. 04-06-2256.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2008

Before Judges Lintner and Alvarez.

Following a jury trial, defendant, Ryan Philway, was convicted of a third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine with intent to distribute within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); and a disorderly persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), a lesser included of the third-degree resisting arrest originally charged (count six). He was sentenced to seven years imprisonment subject to a three-year term of parole ineligibility on count four. Counts one, two, and three were merged into count four, and a concurrent six-month jail term imposed on count six. Appropriate fees and penalties were also imposed. Defendant appeals and we affirm, but remand for reconsideration of the sentence pursuant to State v. Natale (Natale II), 184 N.J. 458 (2005).

According to the State's proofs at trial, Alan Knight, an off-duty Newark police officer, stopped at a neighborhood grocery store at 8:45 a.m. on December 5, 2003, to buy a soda. He noticed a crowd in front of the store, which dispersed as he approached the door. Defendant, the only person who remained, asked him, "what do you need?" Knight, assuming defendant was attempting to sell illegal drugs, then answered, "what do you have?" Defendant responded "cookies," which Knight knew to be a street term for cocaine. Knight told defendant he would "take ten," and defendant told Knight to wait for him in the store. When defendant returned, he removed ten vials from a plastic bag in his pocket and placed the vials on a grocery store counter. Knight proceeded to identify himself as a police officer, and showed defendant his badge. Defendant threw the vials and told Knight, "[h]ell no, one officer cannot arrest me." Knight told defendant he was under arrest, and as Knight tried to grab him, defendant punched Knight in the chest and the the two men began to wrestle. Knight called out to the store owner to phone the police. Other officers arrived, and cuffed defendant. Defendant was taken to a nearby hospital, as he lost consciousness during the incident. While there, defendant was treated under the name Ryan Hunter. A plastic bag recovered from defendant's pocket proved to have twenty-three additional vials of crack cocaine.

During the trial, the State proffered the testimony of Detective Reginald Holloway, of the Essex County Sheriff's Department, as an expert in street level narcotics transactions. He opined that defendant's conduct was consistent with an individual who kept his drugs at a location separate from where he actually made sales. He further testified that by tossing away the vials he initially placed on the counter, defendant was attempting to distract Knight so that defendant could escape and sell his remaining crack cocaine at a later point in time. Holloway also said, "it is also my opinion that the recovered narcotics in said bag . . . [were] possessed with the intent to further distribute."

On appeal, defendant raises the following points for our consideration:

POINT I THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER AN OPINION ON THE ULTIMATE ISSUE BEFORE THE JURY THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT II THE TRIAL COURT ERRED IN ADMITTING "OTHER BAD ACTS" TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT III THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER EVIDENCE THAT DEFENDANT USED AN ALIAS THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT IV CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT V THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)

We consider defendant's first point, that the admission of the State's expert testimony prejudiced the outcome of his trial, subject to the plain error rule, Rule 2:10-2. In order to prevail, defendant must establish that the error was capable of producing an unjust result. In other words, defendant must show there is a reasonable doubt that the error may have denied him "a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). In support of his position, defendant contends that the circumstances presented the jury with a "close case," because the State relied so heavily upon Knight's version of events and that the expert's testimony could well have unfairly tipped the balance against defendant.

The admissibility of expert testimony is generally left to the sound discretion of the trial court. State v. Berry, 140 N.J. 280, 293 (1995). Defendant cites to State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), for the proposition that the testimony in this case exceeded the bounds of a reasonable exercise in discretion by the trial court. Defendant asserts the testimony was inadmissible because it addressed the ultimate issue in the case. In Baskerville, the expert was asked if whether the activities observed by surveillance officers were actual drug transactions, and the expert responded in the affirmative. Id. at 255. That testimony went to the ultimate issue by "characterizing the interaction between defendant and others[,] . . . usurping the jury's function." Id. at 258.

In this case, speculation about defendant's activity in throwing the vials over the counter and attempting to flee with the additional drugs in his pocket was mere window dressing. If the jury believed Knight's testimony, the statutory elements of the possession with intent offenses as well as the resisting arrest charge were satisfied prior to the expert's testimony. Knight was an actual participant in the transactions and the struggle, not a mere observer, in contrast to the officers in Baskerville. Id. at 250-53. Moreover, the jurors did not need expert testimony to enable them to understand that a suspect possessing contraband might attempt to flee with the goods. That is obvious. We therefore conclude no error occurred in the admission of the testimony. If error, it was certainly harmless in light of the State's proofs, which are more accurately described as overwhelming.

Defendant also maintains that the following testimony by Knight constituted impermissible presentation of other bad acts within the meaning of N.J.R.E. 404(b):

[Prosecutor] Officer, after the defendant was arrested, did you see him again?

[Knight] No. I didn't.

[Prosecutor] When was the next time you saw the defendant?

[Knight] Umm, we checked the same location maybe a month or week later, I believe, he was there at that location.

No comment was made either by the State or defense counsel about the testimony at any time.

Testimony regarding defendant's presence at the grocery store is not proof of other bad acts. Essentially, defendant now complains, by proffering the testimony, the State implied that defendant was again selling drugs. As no comment was made about the testimony by either attorney or by the court, it is sheer speculation on defendant's part as to the conclusion the jury would have drawn given the universe of all other possible explanations for his presence. Even when considered in light of the expert's testimony, the admission of Knight's sighting of defendant at the grocery store on a second occasion was not plain error. Again, if believed, Knight established all that was necessary for the State to prove its case to the point in his testimony when back-up officers arrived. If error, it was harmless.

Defendant also contends that it was prejudicial error for the jury to hear that defendant was treated at the hospital, under the name Ryan Hunter, after being taken into custody. The attending emergency room physician who testified as to the use of the name was called by defendant. "'The principal objection to the use of an alias in a criminal proceeding is that an alias implies that the defendant belongs to the criminal class and thereby prejudices the jury.'" State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.) (quoting State v. Muniz, 622 P.2d 1035, 1037 (N.M. 1981)), certif. denied, 111 N.J. 609 (1988). "[T]he majority of decisions involving this issue hold that the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Ibid.

Defendant believed it was important to present to the jury the extent of the injuries inflicted upon him when he and Knight struggled, although this evidence was not relevant to the issues in the case. He assumed the risk of the inadvertent disclosure of the alias, as actually occurred. Trial defense counsel did not take any remedial steps when the name was mentioned. In any event, no prejudice has been identified from the disclosure. The use of an alias in the context of a hospital admission is different from the use of an alias in a law enforcement setting. The treating physician's brief mention of the alias was simply not clearly capable of producing an unjust result, as is required under the plain error rule. It was no error at all.

Defendant additionally maintains that the cumulative effect of the trial errors deprived him of a fair trial under State v. Orecchio, 16 N.J. 125 (1954). The minimal weight of two possible harmless errors cannot be said to have deprived him of a fair trial. The doctrine does not apply.

Defendant was sentenced two months prior to the decision date in Natale II, supra, 184 N.J. 458. In the absence of mitigating factors, and given defendant's significant prior criminal history, it may well be that even when the matter is reconsidered, the sentence will be the same. Nonetheless, defendant is entitled to consideration of "whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 496.

Affirmed.

20080514

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