May 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0494.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2008
Before Judges Lintner and Graves.
Following a trial by jury, defendant, Mark Rodriguez, was convicted on September 13, 2006, of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Two); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). The judge merged the first and second count convictions with the third count conviction. Defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-6f, of nine years with four and one-half years of parole ineligibility. Defendant appeals and we affirm.
On November 22, 2005, Daniel Vautier, a plain-clothes Camden Police Officer, was on surveillance duty in an unmarked police vehicle at the corner of 25th and Federal Streets, an area where numerous homicides and armed robberies have occurred. Vautier chose the location because he observed a man, later identified as defendant, wearing a bright blue heavy jacket and standing on an empty lot beside a vacant house at 11 North 25th Street, known to be frequented by drug users to "get high in." Vautier parked his vehicle on the corner directly opposite where defendant was located, "facing right at him."
Despite the cold, rainy weather, defendant did not seek shelter, even when the rain came down hard. Vautier watched as defendant participated in "a hand-to-hand transaction" with an unknown individual. Vautier saw the individual approach defendant, money in hand, then make an exchange, after which defendant appeared to be fumbling in his jacket pockets while the two men walked and talked together. They then separated and defendant returned to his original position at 11 North 25th Street.
Vautier did not move in to arrest defendant in the hopes he would observe defendant using "a stash location" to store his drug supply. After observing defendant engage in four more "hand-to-hand transactions" over the course of thirty to thirty-five minutes, Vautier determined that defendant kept the drugs on his person rather than at a stash location. At 10:13 a.m., Vautier radioed police units standing by to move in and arrest defendant. To avoid having his car identified as a police undercover vehicle, Vautier left the scene and did not participate in defendant's arrest. Two bags of cocaine, weighing .06 grams, and one bag of heroin, weighing .07 grams, were recovered from defendant. Defendant also possessed $618 in the following denominations: one $50 bill, eighteen $20 bills, ten $10 bills, fifteen $5 bills, and thirty-three $1 bills.
On appeal, defendant's counsel raises the following points:
I. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING OFFICER VAUTIER TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM, DUE PROCESS, A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL. (Partially Raised Below.)
II. THE DEFENDANT'S MANDATORY EXTENDED-TERM SENTENCE OF 9 YEARS WITH 4 1/2 YEARS OF PAROLE INELIGIBILITY FOR POSSESSION OF CDS WITHIN 1000' OF A SCHOOL IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
In a pro se supplemental brief, defendant raises the following additional arguments:
I. DEFENDANT, MARK RODRIGUEZ'S CONVICTION FOR COUNT TWO POSSESSION [WITH INTENT] TO DISTRIBUTE, AND COUNT THREE, [POSSESSION WITH INTENT] TO DISTRIBUTE WITHIN A 1,000 FEET, OF THE INDICTMENT SHOULD BE REVERSED ON THE GROUNDS THAT HIS REPRESENTATION AT TRIAL WAS INEFFECTIVE, CONSTITUTING A VIOLATION OF HIS RIGHT TO COUNSEL AS GUARANTEED UNDER THE NEW JERSEY AND THE UNITED STATES CONSTITUTIONS.
A. TRIAL COUNSEL FAILED TO PRESENT AND PURSUE A VIABLE DEFENSE ON BEHALF OF THE DEFENDANT UNDER 2C:2-8, INTOXICATION TO REFUTE THE EXISTENCE OF A PARTICULAR STATE OF MIND, AS WOULD AFFORD A DEFENSE TO A CHARGE OF CRIMINAL FINALITY.
B. TRIAL COUNSEL WAS INEFFECTIVE IN THAT SHE FAILED TO SUBMIT A MOTION TO SUPPRESS THE EVIDENCE BASED UPON THE CHAIN OF CUSTODY STANDARD AFTER ARRESTING THE DEFENDANT, AND THE FAILURE OF THE ARRESTING OFFICERS TO TAKE THE DEFENDANT AND EVIDENCE FORTHWITH INTO CUSTODY TO THE CAMDEN POLICE DEPARTMENT.
II. DEFENDANT/APPELLANT MARK RODRIGUEZ'S CONVICTION FOR COUNT TWO, POSSESSION [WITH INTENT] TO DISTRIBUTE, AND COUNT THREE, [POSSESSION WITH INTENT] TO DISTRIBUTE WITHIN A 1,000 FEET, OF THE INDICTMENT SHOULD BE REVERSED ON THE GROUNDS THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND THAT PROOF OF THE ESSENTIAL REQUIRED ELEMENTS OF THE CRIMES, WERE NOT SATISFIED.
During direct examination, there was limited inquiry into Vautier's experience and training with respect to narcotics investigations. It was established that he was trained at the police academy in a number of areas, ranging from patrol and traffic to narcotics and domestics. The academy's narcotics training covered identification, packaging, distribution, sales, and use of narcotics. Vautier's training included the identification of street-level narcotics sales. He testified that he had seen "[h]undreds" of such sales during his nine years as a police officer.
During cross-examination, the defense questioned Vautier on his narcotics training, establishing that Vautier was familiar with the identification, packaging, distribution, and street-level buying and selling of narcotics. Later in the cross-examination, defense counsel asked, over the prosecutor's objection, whether, based on Vautier's experience with narcotics in Camden, most drug dealers in the city are Camden residents. Vautier responded that, though there are exceptions, most dealers are Camden residents and that it is "very common" for buyers from the suburbs to come into Camden to buy drugs. Defendant is not a Camden resident.
On appeal, defendant challenges the following testimony as expert testimony exceeding the bounds of a proper lay opinion.
[Prosecutor]: Okay. What, if anything did you observe?
[Vautier]: We observed individuals would approach this gentleman. He would stand near the vacant lot. He was wearing a blue--it was a heavy jacket. As I said, it was raining and cold. They would approach him, engage in a hand-to-hand transaction, and then they would go on their separate ways. He would remain there until another person would come. He would get approached again and engage in a hand-to-hand transaction and the people would leave.
[Prosecutor]: When you say engage in a hand-to-hand transaction, can you describe that for me?
[Vautier]: Yes, walk around, get on the corners, look around, make sure there's no officers.
See, thing is, in Camden, they get juveniles on bikes. They get two-way -- the Nextels, [B]oost . . . [M]obiles and stuff -[Defense counsel]: Objection. I don't believe that has relevance to this particular case.
[The court]: Sustained. Confine yourself to responding to the particular question asked.
[Vautier]: Anyway, they go around and make sure there's no officers around. They look for a person in the area and they approach them. They have money in their hand. You can see it sticking out the back of the hand. They engage, hand the money over. They dig in their pockets. After they engage in this transaction they separate. We can't -- go to the next one. I'll leave it like that.
[Prosecutor]: On this day, November 22nd, did you see conduct consistent with what you just described?
[Vautier]: Yes, ma'am, about five of 'em.
[Prosecutor]: Five different exchanges?
Defendant asserts that the above testimony, when combined with Vautier's experience as a police officer in drug related crimes, amounted to improper expert opinion from a fact witness, that defendant's actions were "consistent" with drug distributions Vautier had seen on other occasions. The State counters, asserting that Vautier's testimony was properly elicited as factual evidence and also appropriate as a lay opinion, N.J.R.E. 701.
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (1) is rationally based on the perception of the witness and (b) will assist in understanding the witness'[s] testimony or in determining a fact in issue.
Vautier's testimony concerning the transactions was based upon his observations, made in an area known for drug use, which provided him with a reasonable belief that a drug transaction had occurred. As such, the testimony was founded upon his actual perceptions. Vautier's description concerning the manner in which the exchanges took place was served to paint a full picture of the criminal event, thus aiding the jury in understanding his factual testimony. Contrary to defendant's contention, Vautier's testimony regarding the "consistency" of the exchanges dealt with the manner in which they took place, rather than being consistent with drug distribution.
To be sure, Vautier's explanation of why they waited until defendant had engaged in five transactions before effectuating the arrest in the hopes of locating a stash, amounted to implicit testimony of his belief that he had observed a drug transaction. It was properly permitted to establish that, as a reasonable police officer in a high drug area, he had a belief that the first exchange was a drug transaction, thus providing him with probable cause for his continued observations. Vautier's testimony set the context in which the criminal activity took place. See State v. O'Neal, 190 N.J. 601, 613-15 (2007); State v. Moore, 181 N.J. 40, 47 (2004) (based on police officer's experience, a neighborhood known for heavy drug trafficking, and observations of the exchange of money for small objects, it was reasonable for the officer to believe he witnessed a drug transaction).
In our view, Vautier was not testifying as an expert but rather as a fact witness concerning his perception at the time. He described defendant's conduct as observed by him based upon his specialized knowledge as a police officer. Indeed, the Court has noted that an expert is not needed to explain transactions such as the one here where each "defendant was observed directly handing something to the alleged purchaser and receiving what appeared to be payment in return." State v. Nesbitt, 185 N.J. 504, 516 (2006); see, e.g., Trentacost v. Brussel, 164 N.J. Super. 9 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (a detective's testimony that a neighborhood is a high crime area is admissible as a lay opinion). We see no reason to intervene.
We next consider defendant's contention that the sentence imposed was excessive. The trial judge found aggravating factors N.J.S.A. 2C:44-1a(2), (3), (6), (9), and (11). He found no mitigating factors, N.J.S.A. 2C:44-1b, and sentenced defendant to an extended term of nine years pursuant to N.J.S.A. 2C:43-6f, which requires mandatory extended terms for repeat drug offenders.
The State concedes that the judge erroneously considered aggravating factor (11), "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices."
N.J.S.A. 2C:44-1a(11). Defendant correctly points out that factor 11 is not applicable "unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005).
Defendant argues that it was also improper for the judge to consider aggravating factor (2), "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable . . . or was for any other reason substantially incapable of exercising normal physical or mental power of resistance." N.J.S.A. 2C:44-a1(2). "In general, a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989).
In considering aggravating factor (2), the judge pointed out that "[t]hose willing to distribute drugs are willing to prey on the user of controlled dangerous substances. Those who use controlled dangerous substances are unable to resist and [their] craving[s] only get worse." Although not specifically mentioned by the judge, the evidence established that defendant was selling drugs adjacent to a vacant house used by drug addicts to get high. Accordingly, we are satisfied, under the circumstances, that the judge correctly applied aggravating factor (2).
Defendant also contends that the judge effectively double counted by considering defendant's extensive criminal record in imposing the mandatory extended term and then weighing the aggravating factors to arrive at a nine-year sentence.*fn1 Again, we disagree. Once a prosecutor makes application for a mandatory extended term under N.J.S.A. 2C:43-6f, the sentencing judge has no discretion and the only determination that needs to be made by the court is "to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing." State v. Thomas, 188 N.J. 137, 151 (2006). Indeed, "[n]o other fact-finding, or collateral assessment of the prior convictions, takes place." Id. at 150. Thus, the court's consideration of defendant's extensive criminal record in determining the aggravating factors was appropriate.
We are satisfied from our review of the entire record, notwithstanding his mistaken reliance on aggravating factor (11), that the judge reasonably weighed the remaining aggravating and mitigating factors and the sentence should not be disturbed. State v. Megargel, 143 N.J. 484, 494 (1996); State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); State v. Murray, 240 N.J. Super. 378, 403 (App. Div.), certif. denied, 122 N.J. 334 (1990). In our view, the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. O'Donnell, supra, 117 N.J. at 215-16; State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
In his pro se supplemental brief, defendant asserts that he received ineffective assistance of counsel, claiming defense counsel failed to (1) present a defense based upon his being intoxicated at the time of the offense and (2) move to suppress the evidence based upon a broken chain of custody. Allegations respecting advice obtained from counsel that involve assertions and evidence beyond the trial record are best addressed on an application for post conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, decline to consider defendant's contentions at this time.
Finally, defendant contends that the jury verdict was against the weight of the evidence. Defendant's failure to move for new trial generally precludes us from determining whether the verdict was against the weight of the evidence. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Notwithstanding the procedural bar, we conclude that defendant's claim that the verdict was against the weight of the evidence is without merit. We are satisfied, from our review of the entire record that "viewing the State's evidence in its entirety," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). Had a motion to acquit been made based upon insufficiency of the evidence, it would have been denied.