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State v. Simpson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARFIELD SIMPSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0377.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 23, 2008

Before Judges Cuff, Lihotz and Simonelli.

Following a jury trial, defendant Garfield Simpson was convicted of fourth degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(3) (count one); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(10) (count two); third degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); and fourth degree possession of a prohibited weapon (stun gun), N.J.S.A. 2C:39-3h (count four). After merging counts one and three with count two, defendant was sentenced to an extended term of sixteen years imprisonment with an eight-year period of parole ineligibility. On count four, defendant was sentenced to a concurrent eighteen-month term. The appropriate fees, penalties, assessments and driver license suspension were also imposed.

On October 23, 2003, Paterson Police Detective Thomas Conyers was assigned to perform surveillance of 18 Belle Avenue. At approximately 6:10 p.m., Conyers observed a woman, later identified as Jamilia Jendayi, park her car and enter the residence. Conyers relayed this information to other officers by police radio.

Shortly after 7:20 p.m., members of the Paterson Police Department executed search warrants for the second floor apartment at 18 Belle Avenue, defendant Garfield Simpson, and a maroon 2000 Toyota Camry bearing New Jersey plates NRP-24A. Police Detective Virginio Formentin, one of the entry team officers, knocked on the door. When he received no response, detectives forcibly entered the second floor apartment. The apartment consisted of a living room, a hallway leading to a bedroom, a bedroom, a bathroom and a kitchen located at the far end. On entry, police noticed defendant in the doorway to the bedroom and co-defendant Jendayi in the hallway between the bedroom and the kitchen. Three other women were in the kitchen area at the rear of the apartment.*fn1

In the apartment, detectives discovered a scale box containing fifteen Ziploc bags with loose marijuana totaling over ten pounds in the hallway, five one-pound bags of marijuana in a laundry bag next to a closet, a stun gun in the bedroom, empty plastic sandwich bags and a digital scale. The officers also found letters and bills addressed to defendant and Jendayi at the Belle Avenue address.

Detectives recovered a total of $1,068 in cash from pants belonging to defendant. Detective Ronald Altmann, who participated in the execution of the search warrant, testified at trial that he was unsure if defendant was wearing the pants when the police entered the apartment or whether the pants were discovered in the bedroom. Another participating detective testified at trial that defendant was shirtless and wearing a towel. The officers placed defendant under arrest and transported him to police headquarters where he produced a driver's license bearing the 18 Belle Avenue address.

At trial, defendant proffered a third-party guilt defense. He introduced several stipulated documents into evidence, including two criminal complaints, an arrest report, and an indictment against Lashanna King, one of the women present when the search warrants were executed. King was released by police and never charged.

In addition, defendant produced Antoine Huffin, who testified that he was a member of defendant's music group and that defendant usually paid the members in cash each night they performed. In addition, Takeeya Planno testified that defendant invited her and Dion Garvey to his apartment for dinner on October 23, 2003. She explained that defendant often cooked at home and used a scale to measure food portions. Planno also testified that Lashanna King let her into the apartment and that King was defendant's roommate.

On appeal, defendant raises the following arguments:

POINT I THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S MOTION TO PRECLUDE ANY MENTION OF THE SEARCH WARRANTS, INCLUDING THE SEARCH WARRANT FOR HIS PERSON. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).

POINT II THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MULTIPLE MOTIONS FOR A MISTRIAL BECAUSE THE PROSECUTOR VIOLATED THE TRIAL COURT'S RULING TO PRECLUDE ANY TESTIMO[NY] AS TO THE FACTS AND INVESTIGATION UNDERLYING THE ISSUANCE OF THE SEARCH WARRANTS WHICH PREJUDICE WAS NOT EFFECTIVELY CURED BY THE COURT'S LIMITING INSTRUCTIONS. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).

POINT III THE TRIAL COURT RENDERED A TOTALLY INADEQUATE JURY CHARGE WHEN (1) HE REJECTED SIMPSON'S REQUEST FOR HIS VERSION OF A THIRD-PARTY LIABILITY CHARGE AND (2) WHEN HE REJECTED SIMPSON'S REQUEST FOR A CHARGE TO AVOID PREJUDICE AGAINST HIM ON HIS POSSESSION OF MARIJUANA CHARGES BECAUSE OF HIS DREADLOCK HAIRSTYLE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10).

POINT IV THE TRIAL COURT REVERSIBLY ERRED IN DENYING SIMPSON'S REQUEST FOR AN EVIDENTIARY HEARING REGARDING HIS MOTION FOR SUPPRESSION OF THE EVIDENCE SEIZED AT 18 BELLE AVENUE AND ALLEGEDLY ON HIS PERSON AT THE FRANKS HEARING. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Para 7 and 10).

POINT V THE TRIAL COURT SUA SPONTE SHOULD HAVE DEALT WITH THE RECUSAL ISSUE AND RECUSED HIMSELF UNDER R. 1:12-1 AND UNDER THE CODE OF JUDICIAL CONDUCT CANNONS [SIC] 1, 2 AND 3 WITHOUT PREJUDICE TO HIS POSITION ON THE LACK OF MERIT IN KAREN PICHARDO'S CONTENTIONS CONCERNING THE COURT'S ASSERTED BIAS AGAINST SIMPSON ON OCTOBER 25, 2007 WHEN THE TRIAL COURT LEARNED OF THOSE CONTENTIONS FROM SIMPSON'S RETAINED COUNSEL AND BEFORE THE TRIAL STARTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT VI SIMPSONS CONSTITUTIONAL RIGHTS TO BE PRESENT AT ALL CRITICAL STAGES IN HIS TRIAL WERE VIOLATED WHEN HE WAS PRECLUDED FROM ATTENDING THE OCTOBER 25, 2005 IN CAMERA CONFERENCE REGARDING THE KAREN PICHARDO CONTENTIONS. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

POINT VII THE TRIAL COURT SUA SPONTE SHOULD HAVE DISMISSED THIS CASE AGAINST SIMPSON BECAUSE THE POLICE USED UNLAWFUL PROCEDURES TO OBTAIN THE ARREST WARRANT UNDER WHICH HE WAS ARRESTED. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10).

POINT VIII SIMPSON'S RETAINED COUNSEL AND HIS ASSIGNED COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO (1) MOVE TO RECUSE THE TRIAL COURT, (2) INVESTIGATE THE FACTS SURROUNDING THE ISSUANCE OF THE ARREST WARRANT AND TO MOVE FOR A DISMISSAL OF THE CASE ON THE GROUNDS OF AN ILLEGALLY ISSUED ARREST WARRANT, (3) ARGUE THE FLAWED RETURN OF THE INVENTORY ISSUES AS A BASIS FOR OBTAINING AN EVIDENTIARY HEARING ON THE SEARCH WARRANTS, (4) FOLLOW UP ON A MOTION TO SUPPRESS THE EVIDENCE SEIZED UNDER THE SEARCH WARRANTS AS A MATTER OF LAW, AND (5) TO INVESTIGATE THE RELATIONSHIP OF PAUL UHLIK, ESQ. TO THIS CASE. (U.S. Const. Amends. IV, VI & XIV; N.J. Const. (1947) Art. I, Paras. 7 & 10).

POINT IX SIMPSON'S SENTENCES WERE ILLEGAL AND MANIFESTLY EXCESSIVE.

In a pro se supplemental brief, defendant raises the following points:

POINT I DEFENDANT-PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF TRIAL, AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS 4th, 6th 14th AMENDMENT CONSTITUTIONAL RIGHTS.

POINT A DEFENDANT-PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT. THEREBY, FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED & REQUIRED BY NEW JERSEY RULES OF THE COURT. R. 3:3-3 (A), (B); R. 3:3-1 (A)(1); AND, NEW JERSEY'S CONSTITUTION ARTICLE I & VII.

POINT B THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.

POINT C THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR ME TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTIONS ABILITY TO CONTINUE ITS PROSECUTION.

POINT D PRE-TRIAL & TRIAL COUNSEL FAILED TO OBJECT TO THE REPRESENTATION OF MY CO-DEFENDANT BY THE FORMER PROSECUTOR OF MY INDICTMENT DURING A PLENARY HEARING FOR THE "UNWAIVABLE" WAIVER OF CONFLICT.

POINT E MY PRE-TRIAL ATTORNEY DURING THE ATTEMPTED RECUSAL OF JUDGE SUBRYAN SHOULD HAVE REQUIRED THE RECORDATION OF THE HEARING "EN CAMERA". THIS FAILURE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

I

Defendant argues that the trial judge erred in admitting testimony of the existence of search warrants for defendant and defendant's apartment. The State maintains that evidence of the search warrants was admissible to establish that the police acted properly at the time of entry.

We review decisions concerning the admissibility of evidence according to the palpable abuse of discretion standard. State v. Carter, 91 N.J. 86, 106 (1982). "Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing Carter, supra, 91 N.J. at 106).

Defendant relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992). In Milton, the defendant was charged with drug offenses based on evidence obtained from a search of a house he occupied with his parents and two brothers. Id. at 517. The defense was that the drugs found during the search belonged to one of the defendant's brothers. Id. at 518. This court concluded that the reference during the State's case to a warrant to search the house was not objectionable. Id. at 520. However, it reversed the defendant's conviction because the State also presented testimony concerning an unexecuted warrant to search the defendant's person. Id. at 519. This court concluded that such testimony was unnecessary to the presentation of the State's case and it implied that the State had presented undisclosed evidence to the issuing judge that defendant was likely to be in possession of drugs:

[T]he defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. [Id. at 520.]

The facts in Milton, however, are distinguishable from the circumstances of this case. Moreover, our Supreme Court has squarely rejected the contention that the existence of a search warrant should be withheld from the jury in all cases. In State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). The Court stated: We find [the defendant's] claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.

[Ibid.]

Here, the references to the warrants for defendant and defendant's apartment did not imply that the State had presented any evidence to the issuing judge that was not heard by the jury. Instead, the testimony with regard to the search warrants served to explain to the jury the reason that defendant was detained while police released three other individuals found on the premises, including King, the subject of defendant's third-party guilt defense.

In his reply brief, defendant argues for the first time that his right of confrontation was violated in this case. Evidence of the existence of search warrants does not constitute testimonial hearsay which triggers Confrontation Clause scrutiny. See Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed. 2d 177, 192-93 (2004) (discussing "testimonial statements" to which the Confrontation Clause applies).

The Sixth Amendment to the United States Constitution and article I, paragraph 10 of the New Jersey Constitution guarantee a defendant the right to confront the witnesses against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. However, the Confrontation Clause does not condemn all hearsay. Crawford, supra, 541 U.S. at 36, 124 S.Ct. at 1364, 158 L.Ed. 2d at 177.

It follows that the right of confrontation accommodates "'legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S.Ct. 1038, 1046, 1049, 35 L.Ed. 2d 297, 309, 313 (1973)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004).

The hearsay rule is not violated when a police officer testifies that he engaged in certain conduct based "upon information received" for the purpose of dispelling the notion that he acted in an arbitrary manner. State v. Branch, 182 N.J. 338, 350 (2005). Similarly, the mention of a search warrant for the limited purpose of explaining forced entry into an apartment is not hearsay. See Marshall, supra, 148 N.J. at 240 (stating "the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly"). Here, the evidence of the search warrants was presented to the jury for a limited purpose. Specifically, the trial judge instructed the jury that:

Testimony concerning the execution of a search warrant is only admissible to establish that the police did not act arbitrarily in conducting a search. The execution of a search warrant ha[s] no evidential relevance concerning the alleged guilt of an individual and cannot be considered in that regard during your deliberations.

Moreover, nothing in the record suggests that the jury used the information regarding the search warrants other than for the limited purpose for which it was offered, or that the information unnecessarily suggested undisclosed facts or was misleading.

II.

Defendant argues that the trial judge erred by denying his two mistrial motions based on improper testimony elicited by the prosecutor in violation of the trial court's pretrial ruling. The State maintains that defendant's claims did not warrant the extraordinary remedy of a mistrial and that the trial judge issued effective curative instructions that eliminated any risk of prejudice.

At trial, the State and Detective Altmann engaged in the following colloquy with regard to the events of October 23, 2003:

Q: Now, at some point before the execution of these search warrants, did you conduct what is known as a briefing?

A: Yes, I did.

Q: And what is a briefing?

A: Basically, you let everybody know a little bit about the investigation that was conducted, what their assignments are going to be, and as well as descriptions of persons and locations that may be involved in a location.

Defense counsel moved for a mistrial, arguing that the State had violated the trial court's pretrial ruling prohibiting testimony regarding the underlying investigation in this case. Counsel argued that the mention of the investigation and meeting in preparation for the execution of the search warrants implied to the jury that the police had obtained certain undisclosed information that implicated defendant in criminal wrongdoing. The State countered that Detective Altmann's testimony merely explained the assignments of the detectives involved and that the reference to an investigation was incidental.

The trial court agreed, stating:

[T]he police went there to execute a search warrant, which I ruled they're going to be allowed to testify to. They have -- and there's nothing improper for them to testify as to what the respective duties are of each member of the search party. There's nothing improper on that. That does not give any indication of what Mr. Simpson may or may not have been involved in prior to that time. I see nothing objectionable with that testimony.

Consequently, the trial judge denied defendant's mistrial motion, and provided the jury with the following curative instruction:

We are now ready to continue the trial. But before I do, any activities at police headquarters referred to by Detective Altmann during his testimony has no evidential value and should not be considered by you during your deliberations in the jury room. You should disregard that portion of the testimony relating to activities at police headquarters. Thank you.

A motion for mistrial is addressed to the sound discretion of the trial court. State v. Winter, 96 N.J. 640, 647 (1984) (citing State v. Witte, 13 N.J. 598 (1953)). Because the ruling on a motion for mistrial is discretionary, it will not be disturbed on appeal absent a clear showing that the trial court has abused its discretion. Ibid. Thus, only when an error or irregularity is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached," should a mistrial be granted as a matter of law. Ibid. (citing State v. Macon, 57 N.J. 325, 33 (1971)).

An appellate tribunal reviewing court must also consider whether the claimed error might have been cured by a cautionary instruction or other curative steps. State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.) (citing State v. Winter, 96 N.J. 640, 646-48 (1984)), certif. denied, 149 N.J. 142 (1997). Whether inadmissible evidence is susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is an inquiry peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting. Ibid. (citing Winter, supra, 96 N.J. at 646-47). Unless manifest injustice would result, the trial court's decision should be affirmed. Ibid. (citing State v. LaBrutto, 114 N.J. 187, 207 (1989)).

The detective's comment was innocuous. The judge issued an immediate curative instruction. In addition, the record is devoid of any evidence to suggest that the jury was confused or placed inappropriate weight on the detective's comments. The trial court properly denied defendant's motion for a mistrial.

Next, defendant argues that the trial judge should have granted his second motion for a mistrial after the jury sent a note to the judge during deliberations that asked whether "the search warrant [was] for Garfield Simpson, 18 Bell[e] Ave. or both?" Defendant based his argument on the same grounds as his previous motion. The judge provided the jury with the following limiting instruction:

Ladies and Gentleman, I received the following note from you, "Judge . . . was the search warrant for Garfield Simpson, 18 Bell[e] Ave. or both?" The answer is both. Testimony concerning the execution of a search warrant is only admissible to establish that the police did not act arbitrarily in conducting a search. The execution of a search warrant ha[s] no evidential relevance concerning the alleged guilt of an individual and cannot be considered in that regard during your deliberations.

While it may have been more appropriate to advise the jury that the inquiry had no relevance in their deliberation, we discern no error of a dimension to require a mistrial. Notably, defense counsel drafted the trial court's instruction to the jury. In addition, there is nothing to suggest that the jury disregarded the trial court's clear and unambiguous instruction and that a manifest injustice occurred.

III.

Defendant argues that the trial court's instruction to the jury regarding third-party guilt was confusing, causing it to find that the third party constructively possessed the contraband with defendant. Further, defendant claims that the trial court erred in failing to charge the jury on prejudice related to defendant's dreadlock hairstyle. The State contends that defendant's contentions are without merit as the trial court's charges were neutrally worded, favored neither party and were wholly adequate. We agree.

"Appropriate and proper charges to a jury are essential to a fair trial." State v. Green, 86 N.J. 281, 287 (1981). This requirement is most critical in criminal cases "when a person's liberty is at stake." Id. at 289. "Because of the importance of proper instructions to the right of trial by jury, erroneous instructions on matters or issues material to the jury's deliberations are presumed to be reversible error." State v. Collier, 90 N.J. 117, 122-23 (1982); State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996); State v. Whitted, 232 N.J. Super. 384, 391 (App. Div. 1989). It is essential to a defendant's right to a fair trial that jury charges be accurate and appropriate, particularly in criminal cases. Green, supra, 86 N.J. at 287, 289.

On appeal, a court should review a jury charge in its entirety, rather than just reviewing the portion alleged as error in isolation. State v. Delibero, 149 N.J. 90, 106-07 (1997); State v. Wilbely, 63 N.J. 420, 422 (1973). However, "[b]ecause proper jury instructions are essential to a fair trial, 'erroneous instructions on material points are presumed to' possess the capacity to unfairly prejudice the defendant." State v. Bunch, 180 N.J. 534, 541-42 (2004) (quoting State v. Nelson, 173 N.J. 417, 446 (2002)). Erroneous jury instructions "are almost invariably regarded as prejudicial" and are "poor candidates for rehabilitation under the harmless philosophy." State v. Vick, 117 N.J. 288, 289 (1989) (citing State v. Crisantos, 102 N.J. 265, 273 (1986); State v. Simon, 79 N.J. 191, 206 (1979)).

A third-party guilt defense includes a criminal defendant's right to introduce evidence of third-party guilt "if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Cotto, 182 N.J. 316, 332-33 (2005) (citing State v. Fortin, 178 N.J. 540, 591 (2004)); State v. Koedatich, 112 N.J. 225, 301-02 (1988); State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960).

At trial, defendant suggested that the drugs found by police during their execution of the search warrants belonged to Lashanna King, who had been recently convicted for possession of marijuana with intent to distribute. Consistent with defendant's contention, the trial court instructed the jury to consider the third-party evidence in determining whether the State proved defendant's guilt beyond a reasonable doubt. Specifically, the trial judge stated:

For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that a crime was committed by someone else or to prove the identity of that other person. You must determine therefore, not only whether the State has proved each and every element of the offenses charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that the defendant is the person who committed them.

In this case, the defendant has presented evidence, which may tend to implicate a third party, namely Lashan[n]a King, as a probable party. You must weigh the reliability and credibility of this evidence the same as you would all of the other evidence in this case.

If, after consideration of all the evidence, you determine the State has not proven beyond a reasonable doubt that the defendant was the person who committed these offenses, then you must find the defendant not guilty.

A plain reading of the charge contradicts defendant's contention. Despite defendant's notion that the word "implicate" in ordinary usage constitutes "dual constructive possession," Black's Law Dictionary defines the verb "implicate" as "to show a person to be involved in (a crime, misfeasance, etc.)" or "to be involved or affected." Black's Law Dictionary 770 (Special Deluxe 8th ed. 2004). Thus, it appears that the trial court's instruction accurately and appropriately advised the jury of its responsibility to consider the evidence presented in a manner neither advantageous nor detrimental to either side.

Furthermore, the trial judge did not err in refusing to adopt defendant's proposed jury charge. At the charge conference, the judge observed that defendant's charge was misleading in that it suggested to the jury that if it found the evidence convincing that King lived in the apartment with defendant, it should use that evidence to raise a doubt that defendant possessed the marijuana on the date in question. Such an instruction would have indeed misled the jury and ignored any potential liability of defendant under theories of joint or constructive possession. The trial court's decision to reject defendant's proposed charge was not unreasonable.

Defendant claims that the trial court erred in declining to specifically charge the jury that it should not draw any negative inference from his dreadlock hairstyle. The claim is unfounded. Defendant presumes that the jury was familiar with the "Rastafari movement and religion" and would "tend to stereotype Jamaican reggae band members with dreadlocks, with marijuana." The trial court's final instructions cautioned the jury to "weigh the evidence calmly and without prejudice or sympathy" and "to avoid speculation, conjecture and other forms of guessing." Viewed in its entirety, the charge to the jury was accurate, thorough and appropriate.

IV.

Defendant argues that the trial court erred in denying his request for an evidentiary hearing regarding the affidavits supporting the search warrants. Defendant's claims are without merit and fail to demonstrate the substantial showing necessary to justify an evidentiary hearing. "As a general rule, questions concerning the validity of a search warrant hinge upon the information contained within the four corners of the supporting affidavit." State v. Sheehan, 217 N.J. Super. 20, 24 (App. Div. 1987). However, in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed. 2d 667, 672 (1978), the Supreme Court held as a matter of constitutional law that a criminal defendant under certain circumstances must be allowed to challenge the validity of a search warrant on the basis of alleged false statements contained in a supporting affidavit. Mindful of the substantial impact that its decision would otherwise have on already over-burdened criminal trial calendars, the Court stated that a defendant must make a "substantial preliminary showing of falsity" in the affidavit in order to be entitled to a hearing. Id. at 170, 98 S.Ct. at 2684, 57 L.Ed. 2d at 681. "In keeping with the overall objective of the exclusionary rule as a judge-made device to deter insolence in office, the Court in Franks emphasized that a defendant cannot rely on allegations of unintentional falsification in a warrant affidavit." Sheehan, supra, 217 N.J. Super. at 25. Rather, he must allege "deliberate falsehood or . . . reckless disregard for the truth." Ibid. (citing Franks, supra, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed. 2d at 682). These allegations should be supported by an offer of proof, including reliable statements by witnesses, and they must be proved by a preponderance of the evidence. Ibid. Finally, the statements challenged as false must be material to the extent that when they are excised from the affidavit, whatever remains no longer establishes the requisite probable cause to support issuance of the search warrant. Ibid. (citing Franks, supra, 438 U.S. at 171-72, 98 S.Ct. at 2684, 57 L.Ed. 2d at 682).

In State v. Howery, 80 N.J. 563 (1979), cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979), our Supreme Court held that State constitutional requirements are coterminous with those of their federal counterparts. Id. at 568. Thus, "New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra." Ibid.

Further, this court has held that essentially the same factual predicate must be established in order to entitle a defendant to an evidentiary hearing. Sheehan, supra, 217 N.J. Super. at 26. Specifically, "the defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant." Ibid. Once a defendant satisfies this threshold burden, he must be afforded an evidentiary hearing. Ibid.

Applying these principles, defendant's request for an evidentiary hearing was materially deficient. At best, defendant claimed that the affidavit failed to corroborate statements of confidential informants, failed to identify the confidential informants, and failed to set forth whether the police were required to ring the doorbell before entering defendant's apartment. However, defendant never expressly alleged that the affiant, either deliberately or with reckless disregard for the truth, withheld vital information from the issuing judge, as required under Franks. Thus, an evidentiary hearing was not required.

V.

Defendant argues that the trial judge should have recused himself pursuant to Rule 1:12-1(f) upon learning through trial counsel that an unidentified woman alleged judicial misconduct. The State contends that such allegations lack merit because they were "manufactured" and "arose from a failed scheme to disqualify the judge."

Rule 1:12-1(f)1 states:

The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter . . . when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.

Recusal is a matter entrusted to the discretion of the trial judge. Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.) (citing Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978)), certif. denied, 107 N.J. 60 (1986). "It is not only unnecessary for a judge to withdraw from a case upon a mere suggestion that he is disqualified, but improper for the judge to do so unless the alleged cause of recusal is known by the judge to exist or is shown to be true in fact." Clawans v. Schakat, 49 N.J. Super. 415, 420-21 (App. Div.), certif. denied, 27 N.J. 156 (1958).

In this case, defendant asserts that on the morning of October 25, 2005, a woman revealed an intimate relationship with the trial judge and stated that the judge expressed an intention to "burn" defendant and his co-defendant. The record, however, suggests the following alternative series of events. On Tuesday, October 25, 2005, at approximately 9:00 a.m., the identified woman entered a corridor leading to the chambers of the trial judge and another judge. The woman turned towards the other judge's chambers and told a sheriff's officer that she knew the judge "personally." However, according to this judge, it was clear that the woman knew neither judge:

The sheriff's officer said to me, 'Do you want me to tell [the woman] you can't see her or do you want me to let her in.' Ironically, on September 3rd of 2005 I had gotten a phone call from someone named Karen Guizio . . . . When [the sheriff's officer] said . . . the name Karen, for some reason I thought it was the same person who made the phone call to me who had gotten tired of waiting for my return call and instead came down [to the courthouse]. I recall Karen Guizio as the daughter of a former client of mine.

I went to my outer office and asked [the sheriff's officer] to escort the woman in, but I told him not to leave me alone with her until I saw what it was all about. [The sheriff's officer] brought in a young black female, and I immediately knew she was not the person who called me.

Although I didn't remember exactly what the Karen who called me looked like, I knew and remembered her to be white. So I said to the [young black female], 'What would you like, how can I help you,' because I noticed that I did not know her.

She said she was a student and had been following my career as a judge for the past six months, which seemed odd to me, because I have never seen her before. I had never seen her in my courtroom. She implied that she was there on some sort of school matter and was writing a report.

She said she was a student in the Dominican Republic and she wanted to ask me questions. I was very suspicious of her and in fact started to realize that she seemed to be mentally disturbed. She was very animated and very loud in the way she was speaking and acting somewhat bizarre.

I said to her I'm not really sure what you mean. I set forth, 'Okay, what do you mean you want to ask me questions.' I told her that as a judge I'm not allowed to answer certain types of questions that are presented to me.

She said I want to ask you how judges make their decisions. She said, 'What do you think about when you decide a case.' Then she started to ramble on about how she wants to know how taxes are levied and why taxes must be paid to maintain the streets.

She also said something about how she also followed the career of a Mr. Clark. I asked 'Are you referring to Judge Clark.'

She said no, Mr. Clark. Again, I thought she was rather bizarre. I simply said to her I cannot answer any of your questions.

At that point I asked [the sheriff's officer] to escort her out.

Defendant was evidently unaware of the extent of this exchange because he thereafter told defense counsel that the trial judge had engaged in misconduct with this woman. Counsel advised the judge of the allegation.

The trial judge contacted the acting assignment judge, who conferenced the matter with the attorneys. Defense counsel requested that the matter be adjourned due to a "witness problem." The acting assignment judge decided that the trial should be adjourned until November 14, 2005, to bring the matter to the attention of the vacationing assignment judge. It was also decided that the reason for the adjournment would not be placed on the record.

A recusal motion was never made to the trial judge. Rather, the judge granted defense counsel's motion to be relieved as counsel and newly retained counsel expressly declined to pursue a recusal motion when trial commenced on the adjourned date. Neither defendant nor his attorney addressed the issue until defendant submitted a pro se application for bail pending appeal.

While the better course would have been to squarely address the purported misconduct on the day it was advanced, the record developed at the post-judgment motion clearly establishes the bogus nature of the alleged misconduct. Simply stated, there was no basis to require recusal of the trial judge.

VI.

Defendant argues that his right to be present at trial was violated. Specifically, defendant contends that his exclusion from the October 25, 2005, in camera conference between the judges and defense counsel violated his federal and state constitutional rights to be present at every critical stage of his case. Further, defendant alleges that had he been afforded the opportunity to be present at the conference, he could have moved to recuse the trial judge. The State asserts that defendant's argument is unpersuasive, as he had ample opportunity to move to disqualify the trial judge throughout the proceedings but simply chose not to do so.

A criminal defendant has a constitutional right to confront the witnesses against him. U.S. Const. amend. VI. An essential element of this right is presence in the courtroom at every stage of the proceeding. State v. Whaley, 168 N.J. 94, 99 (2001) (citing Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed. 2d 353, 356 (1970)); State v. Hudson, 119 N.J. 165, 171 (1990); State v. Smith, 29 N.J. 561, 578, cert. denied, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed. 2d 103 (1959). A criminal defendant's right to be present at trial is also required by the Due Process Clause of the Fourteenth Amendment to the extent that a defendant's absence would hinder a fair and just hearing. Hudson, supra, 119 N.J. at 171 (citing Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679 (1934), overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491 (1968)). However, that right is not absolute, Whaley, supra, 168 N.J. at 99, and "extends not to every aspect of the proceeding but rather only to critical stages of the trial."

State v. Trent, 157 N.J. Super. 231, 241 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979).

The right to be present includes jury selection. State v. Smith, 346 N.J. Super. 233, 236-37 (App. Div. 2002) (citing State v. Dishon, 297 N.J. Super. 254, 267 (App. Div.), certif. denied, 149 N.J. 144 (1997)). Jury selection includes the ability to participate in the voir dire process and to meaningfully consult with counsel in the exercise of peremptory challenges, which includes presence at sidebar conferences during jury selection. State v. W.A., 184 N.J. 45, 59 (2005).

The State correctly argues that the conference that took place in the acting assignment judge's chambers was not a critical stage of the trial. It did not involve the presentation of evidence, arguments or substantive applications to the court. It did not involve selection of the jury that would decide defendant's fate. The only consequence of the conference was the adjournment of the matter until November 14, 2005. Notably, too, defense counsel initiated the conference by approaching the trial judge in chambers. Defendant's absence from the conference neither violated his constitutional rights nor deprived him of the opportunity to move to disqualify the trial judge. In fact, on two occasions prior to commencement of the adjourned trial, defendant stated that he had no intention of moving to disqualify the assigned trial judge. For these reasons, defendant's contention must fail.

VII.

Defendant argues that the complaint-warrant charging him in this case was issued unlawfully, thus, entitling him to dismissal of the criminal charges against him. This contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VIII.

Defendant argues that trial counsel was ineffective. Specifically, defendant alleges defense counsel's (1) failure to move to recuse the trial judge; (2) failure to investigate the facts surrounding the issuance of the arrest warrant and to move for a dismissal on the grounds of an illegally issued arrest warrant; (3) failure to argue the flawed return of the inventory lists as a basis for obtaining an evidentiary hearing on the search warrants; (4) failure to follow up on a motion to suppress the search warrants as a matter of law; and (5) failure to investigate the relationship of co-defendant's counsel, Paul Uhlik, to this case. The State asserts that defendant's claims should not be considered on their merits given the "general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We agree.

Claims of ineffective assistance of counsel are usually reserved for a post-conviction relief proceeding. Ibid. Usually such claims require development of a record beyond the trial record. Ibid. This appears to be such a case. We specifically reserve the opportunity for defendant to present this issue in a petition for post-conviction relief.

IX.

Defendant argues that his sentence is illegal and/or manifestly excessive because the trial court double-counted his prior drug conviction as the predicate for a mandatory extended term and also as the basis for determining the length of the base term. The State asserts that defendant's multiple prior indictable convictions warranted a sentence in the upper range of the extended term range and was an appropriate exercise of the trial court's discretion.

Appellate review of a sentence must be "careful and vigorous," though this court shall not substitute its judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). However, this court must insure that the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "competent credible evidence in the record," and that the sentence is not "clearly unreasonable so as to shock the judicial conscience." Id. at 501 (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).

Defendant received a sixteen-year mandatory extended period of incarceration with an eight-year period of parole ineligibility and a concurrent eighteen-month term. The judge found aggravating factors three (the risk that the defendant will commit another offense), six (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and nine (the need for deterring the defendant and others from violating the law), and no mitigating factors. The judge noted that the aggravating factors substantially outweighed the nonexistent mitigating factors.

Defendant does not dispute that he was subject to a mandatory extended term due to a 1990 CDS conviction. He also does not dispute a 1998 aggravated assault with a deadly weapon conviction, two disorderly persons offenses and a conditional discharge. Such circumstances support the trial judge's finding of aggravating factor six in his sentence determination.

Defendant's reliance on State v. Vasquez, 374 N.J. Super. 252 (App. Div. 2005) is misplaced. In Vasquez, the judge relied on the defendant's single prior conviction to serve as the predicate for an extended term and to also justify the maximum allowable sentence. Id. at 267. Here, defendant had two prior convictions. One served as the predicate for the mandatory extended term, the other served as an appropriate factor to impose a base term only one year beyond the mid-range of the permissible extended term. This sentence is unremarkable and does not shock the conscience.

Affirmed.


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