May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NORMAN SYLVESTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1480.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2008
Before Judges Skillman and Yannotti.
Defendant Norman Sylvester was charged under Essex County Indictment No. 05-06-1480 with conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 (count one); possession of CDS, N.J.S.A. 2C:35-10a(1) (count two); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) (count three); distribution, dispensing or possessing CDS with intent to distribute while on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); distributing, dispensing or possessing CDS with intent to distribute while in, on or within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 (count five); possession of CDS, N.J.S.A. 2C:35-10a(1) (count six); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) (count seven); distributing, dispensing or possessing CDS with intent to distribute while on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count eight); and distributing, dispensing or possessing CDS with intent to distribute while in, on or within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 (count nine).
Defendant was tried to a jury, which found him guilty on all counts. At sentencing, the judge merged counts one, two, three and four with count five and sentenced defendant on count five to a fifteen-year term of incarceration, with a seven-andone-half year period of parole ineligibility. The judge merged counts six, seven and eight with count nine and sentenced defendant to a term of fifteen years, with a seven-and-one-half year period of parole ineligibility. The judge ordered that the sentence on count nine be served concurrently with the sentence on count five, and further ordered that the sentence on count five be served consecutively to a sentence imposed in Mercer County on Accusation No. 06-04-0359. The judge also ordered a twenty-four month suspension of defendant's driving privileges, and imposed appropriate penalties and fees.
Defendant appeals from the judgment of conviction entered on August 7, 2006, and raises the following arguments for our consideration:
THE FAILURE OF THE TRIAL COURT TO EITHER GRANT A REASONABLE ADJOURNMENT TO ALLOW DEFENDANT AN OPPORTUNITY TO REVIEW THE EXPERT REPORT OF DETECTIVE LIPET OR BARRING THE REPORT ALTOGETHER DEPRIVED THE DEFENDANT OF THE RIGHT TO A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO DISMISS ALL COUNTS OF THE INDICTMENT AT THE END OF THE STATE'S CASE BECAUSE THE EVIDENCE PRESENTED DID NOT ESTABLISH THAT THE DEFENDANT IN ANY WAY POSSESSED CDS, DISTRIBUTED CDS OR WAS INVOLVED IN A CONSPIRACY TO DO SO.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO DISMISS THE COUNTS OF THE INDICTMENT RELATED TO INTENT TO DISTRIBUTE CDS IN A SCHOOL ZONE WAS AN ABUSE OF DISCRETION WHICH RESULTED IN DEPRIVING THE DEFENDANT OF THE RIGHT TO A FAIR TRIAL.
THE SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY EXCESSIVE AND IS AN IMPROPER APPLICATION OF THE SENTENCING GUIDELINES.
A. THE COURT COMMITTED REVERSIBLE ERROR BY SENTENCING THE DEFENDANT TO TWO FIFTEEN YEAR TERMS FOR 2nd POSSESSION WITH INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF PUBLIC HOUSING TO RUN CONSECUTIVELY TO THE TERM IMPOSED BY MERCER COUNTY.
B. THE COURT COMMITTED REVERSIBLE ERROR IN ITS APPLICATION OF MITIGATING FACTORS.
C. THE TRIAL COURT ERRED IN ITS APPLICATION OF AGGRAVATING FACTORS.
1. PRIOR RECORD
D. THE TRIAL COURT ERRED IN ITS FAILURE TO CONSIDER MITIGATINGS FACTORS
1. IMPRISONMENT WOULD CAUSE SUBSTANTIAL HARDSHIP [N.J.S.A. 2C:44-1b](11)
2. THE COURT ERRED WHEN IT FAILED TO CONSIDER DEFENDANT'S RELATIVE YOUNG AGE WITH RESPECT TO HIS PRIOR RECORD AND DEFENDANT'S AGE ON THE DATE OF THE ALLEGED OFFENSE.
We begin our consideration of these contentions with a brief summary of the evidence presented at trial. On March 1, 2005, at around 1:30 p.m., Detectives Michael Alexandre, Lisa Rodriguez, and Michael Santiago of the Newark Police Department were conducting surveillance on Grafton Avenue in the area near the Riverside Housing Complex. Alexandre testified that it was a cold, bright and sunny day. He said that the officers responded to that location because they were engaged in an ongoing investigation of narcotics complaints received from the residents of the housing complex.
Alexandre asserted that the officers were using an unmarked, blue van, and they had an unobstructed view of the housing complex. Alexandre was seated in the vehicle and he used binoculars "to get a better view of the whole strip of the complex that sits on Grafton Avenue."
Alexandre observed defendant and co-defendant Al-Jalil Smith on the sidewalk. Alexandre saw Smith approach a vehicle, engage in conversation, reach into his coat pocket, and make an exchange of an unknown object. Alexandre also observed defendant approach a vehicle and engage in conversation with the passenger. The passenger gave defendant currency. Defendant reached into his coat pocket and handed the individual an unknown object.
Alexandre additionally observed Smith go to the entrance area of one of the buildings in the housing complex, reach into the snow, pick up something out of the snow, and hand it to defendant. He then saw defendant walk westbound on Grafton Avenue and approach a female who was walking eastbound. According to Alexandre, defendant and the female had a brief conversation and an item was exchanged. The female walked away, and defendant entered a grocery store on Grafton Avenue.
Alexandre entered the store and detained defendant, while Rodriguez and Santiago detained Smith. Alexandre searched defendant. Defendant was in possession of $476 in currency but no drugs. Rodriguez recovered seventeen vials of cocaine and eighteen envelopes of heroin from the "stash location" in the snow. Smith and defendant were arrested and transported to police headquarters.
Alexandre testified that the narcotics were recovered near the entrance to 9 Grafton Avenue, which was "right in" the Riverside Court public housing complex. He also stated that, from his experience, the location was within 1000 feet of the Broadway Elementary School. A certified map was admitted into evidence. Alexandre stated that, according to the map, the place where the incident occurred was within 500 feet of a public housing complex and 1000 feet of a school.
The State also presented testimony from Detective Rodriguez, who stated that on March 1, 2005, at around 1:30 p.m., she was working with Alexandre and Santiago responding to drug complaints in the area of Grafton Avenue and Riverside Court. Rodriguez said that they observed "drug activity going on." Rodgriguez observed three transactions. Two of the transactions were with persons in cars, and one with a white female. Rodriguez asserted that from time to time, one of the two men would go back to another location, search for something, come back, and hand an object to a person.
After the third transaction, the officers approached the individuals involved. Alexandre went to the grocery store and apprehended defendant. Rodriguez arrested the other man, and found the narcotics in a black bag that was covered with "a little bit of snow[.]"
On cross-examination, Rodriguez conceded that only Alexandre was using binoculars during the surveillance. She stated that she could not see the items that were being passed hand to hand, but she could see "that something was [being] given back and forth to each other."
Defendant argues that he was deprived of his right to a fair trial because the trial judge failed to either grant an adjournment to allow defendant to review the expert report of the State's expert or bar the report altogether. We disagree.
Detective Robert Lipet was employed in the Bureau of Narcotics in the Office of the Essex County Sheriff. Lipet was called by the State to testify as an expert in the field of narcotics investigations. He has been involved in about 2,200 investigations of illegal narcotics activity, which had resulted in approximately 2,000 arrests. Lipet testified that street level drug dealers at times use "stash locations." He also stated that sometimes buyers of illegal narcotics are apprehended and sometimes they are not.
Before Lipet testified, defendant moved to preclude his testimony because the State had not produced his report until one week before the trial. The assistant prosecutor explained that, during ongoing plea negotiations, the State had not prepared the case for trial. When the plea negotiations failed, the State expedited its preparation for trial and had the expert report prepared. Lipet's report was provided to defense counsel shortly after it was completed. The assistant prosecutor stated that the report merely recited the facts in the incident report and set forth "the normal standard conclusion[s]" of narcotics experts.
The judge placed his decision on the record. The judge observed that, if defendant's attorney had informed him that he had consulted an expert and the expert was not available for a certain period of time, he would have considered adjourning the matter. The judge stated:
But you did not ask for a continuance even to consult with an expert. So . . . it seems to me that under the circumstances, preclusion is too drastic a remedy. You're not requesting an adjournment. You have no intention of even seeking a consultation with another expert, so your [m]otion is denied.
The judge added that defense counsel was a very experienced attorney, who had handled numerous matters involving the possession of narcotics with intent to distribute and reviewed "many, many, many of the same kinds of reports[.]" The judge asked defense counsel whether he was surprised by "any of the revelations" in Lipet's report, and counsel replied that he was only surprised that it had not been prepared by someone else.
Where, as here, the State fails to provide defense counsel with the report of its expert witness in a timely manner, the appropriate remedy is left to the sound discretion of the trial judge. State v. Labrutto, 114 N.J. 187, 205 (1989). In determining whether the expert should be permitted to testify, the judge should consider "'(1) the absence of any design to mislead, (2) the absence of the element of surprise if the evidence is admitted, and (3) the absence of prejudice which would result from the admission of evidence.'" Ibid. (quoting Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985)).
As the judge found, the State provided a reasonable explanation for its late submission of the expert's report. Thus, there was no design to mislead. Moreover, the conclusions reached by Lipet and the limited nature of his testimony were typical of the sort of testimony given by experts in the field of narcotics investigations. Thus, counsel could not have been surprised by Lipet's testimony. Furthermore, defense counsel made clear that he had not consulted an expert to counter Lipet's opinions, and counsel did not seek additional time to do so. In short, defendant was not prejudiced by the late receipt of the report. Therefore, we conclude that the judge did not abuse his discretion by permitting Lipet to testify concerning the opinions stated in his report.
We next consider defendant's contention that the judge erred by denying his motion for a judgment of acquittal on all counts of the indictment. Defendant contends that the motion should have been granted because the State failed to establish that defendant possessed CDS, distributed CDS, or engaged in a conspiracy to do so. Defendant also argues that the judge should have dismissed the school zone charges because, although the State presented evidence that the drug possession and distribution occurred within 1000 feet of the Broadway Elementary School, the State failed to establish that the school property was being used at the time for school purposes.
As we stated previously, the judge merged counts one, two, three, and four with count five, in which defendant was charged with distributing, dispensing or possessing CDS with intent to distribute in, on or within 500 feet of a public housing facility. In addition, the judge merged counts six, seven, and eight with count nine, in which defendant also was charged with distributing, dispensing or possessing CDS with intent to distribute in, on or within 500 feet of a public housing.
We are convinced that the trial judge correctly denied defendant's motion to dismiss counts five and nine. When a defendant seeks a judgment of acquittal pursuant to Rule 3:18-1, the trial judge must determine 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).]
We are satisfied from our review of the record that, based on the testimony of Alexandre, Rodriguez, and Lipet, a reasonable jury could find defendant guilty of the charges in counts five and nine.
We decline to address defendant's arguments as to the sufficiency of the State's proofs on the other counts because the convictions on those charges were merged when defendant was sentenced. It is well estaablished that "[c]onvictions merged for the purpose of sentencing are not extinguished." State v. Pennington, 273 N.J. Super. 289, 295 (App. Div. 1994).
Therefore, when an appellate court reverses a conviction for an offense into which a lesser offense has been merged, the State may request that the trial court "unmerge" the lesser offense and sentence defendant on that conviction. Ibid. If a sentence is imposed on an "unmerged" offense, the defendant may challenge the conviction in an appeal from the judgment imposing the sentence. Id. at 295-96.
In Pennington, we noted that if a defendant "wants to avoid the possibility of having to take a second appeal, he can raise in [the] original appeal whatever issues could result in a reversal of his conviction for the merged lesser offense." Id. at 296. Although defendant may raise the issues regarding the validity of the merged convictions, we are not required to address those issues.
Here, we have concluded that there was sufficient evidence to support defendant's convictions on counts five and nine. Consequently, there is little likelihood that the convictions on the merged offenses will be "unmerged" and sentences imposed on those convictions. Accordingly, we see no need to determine whether the trial judge erred by denying defendant's motion for acquittal on the charges that resulted in the convictions that were merged for sentencing purposes.
We turn to defendant's arguments concerning the sentences imposed. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3)(risk of re-offense), N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. As stated previously, the judge imposed two concurrent fifteen-year sentences, each with seven-and-one-half-year periods of parole ineligibility. The judge ordered that these sentences be served consecutively to a sentence imposed in Mercer County.
Defendant argues that the judge erred in his findings of aggravating factors and should have found a mitigating factor under N.J.S.A. 2C:44-1b(11) (imprisonment of defendant will case excessive hardship to defendant or his dependents). Defendant also argues that the judge should have considered his "relative young age" as a non-statutory mitigating factor. Defendant further argues that the resulting sentence is excessive. He also contends that the judge abused his sentencing discretion by requiring that his sentences be served consecutively to the Mercer County sentence.
We are convinced that these contentions are without sufficient merit to warrant discussion in this opinion. R. 2:11- 3(e)(2). We are satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
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