June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAVOUN WILLIAMS, A/K/A JESSE WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-10-2366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2008
Before Judges Grall and Chambers.
Defendant Javoun Williams appeals from a final judgment of conviction and sentence. The grand jurors for Essex County charged defendant with the following crimes involving possession of a controlled dangerous substance on March 10, 2005: second-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:5-2 (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count four); and second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count five). The jury found defendant guilty of all charges. The judgment of conviction reflects that the court merged defendant's conviction on counts one through four into his conviction for the second-degree crime charged in count five of the indictment and sentenced defendant to a seven-year term of incarceration, three and one-half years to be served without possibility of parole.*fn1
The judge also suspended defendant's driver's license for six months and imposed a $50 VCCB assessment, a $75 SNSF assessment, a $30 LEOTEF penalty, a $50 lab fee, and a $2000 DEDR penalty.
Defendant presents the following issues on appeal:
I. THE COURT ERRONEOUSLY ADMITTED AN EXTRA-JUDICIAL STATEMENT FROM A NON-TESTIFYING ACCOMPLICE WHICH INCULPATED DEFENDANT, CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION. (Not Raised Below).
II. TESTIMONY CONCERNING THE CONTENTS OF [THE] CITIZENS' COMPLAINTS TO THE POLICE WERE PRECLUDED BY THE HEARSAY RULE AND THUS WERE ERRONEOUSLY ADMITTED. (Not Raised Below).
III. THE JURY INSTRUCTIONS ON POSSESSION WITH INTENT TO DISTRIBUTE DRUGS WITHIN 500 FEET OF A PUBLIC HOUSING COMPLEX WERE CLEARLY DEFICIENT. (Not Raised Below).
IV. IF THIS COURT DOES NOT REVERSE DEFENDANT'S CONVICTIONS IN THEIR ENTIRETY, THE COURT MUST REQUIRE THAT THE JUDGMENT OF CONVICTION BE AMENDED TO ENTER A CONVICTION FOR THIRD DEGREE CONSPIRACY. (Not Raised Below).
V. DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
VI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
For the reasons stated below, we conclude that the judgment of conviction should be amended to reflect a conviction for conspiracy in the third degree but otherwise affirm defendant's conviction and the sentence imposed.
The following evidence was presented at trial. At 7:45 a.m. Detectives Turzani, Cabrera and Rivera of the Newark Police Department went to the Baxter Terrace Housing Projects to investigate complaints about drug dealing in the courtyard and hallways of the complex. The detectives were not in uniform. Turzani went into the courtyard and Cabrera and Rivera followed at a distance in order to provide any assistance Turzani might need.
Eddy Williams, who was standing in the doorway of one of the buildings, motioned to Turzani. Turzani approached. When Turzani reached the doorway, Eddy Williams said, "We got that diesel." Understanding Eddy Williams to mean that he had heroin, Turzani said, "Let me get one." Eddy Williams shouted, "Yo!" There was no one else in the hallway at the time, but seconds later, defendant appeared on the landing above and walked down the stairway. He was holding a clear plastic bag that contained smaller glassine envelopes.
Turzani waived to Rivera and Cabrera for assistance. When the detectives arrived and identified themselves as police officers, defendant tossed the plastic bag on the floor and walked back up the steps. Cabrera arrested him. Turzani retrieved the plastic bag, which held fourteen envelopes that contained a substance later determined to be heroin. The hallway in which these events took place is within 1000 feet of a school and 500 feet of a public housing complex.
Eddy Williams did not testify at trial, and defendant did not testify or present any witnesses. His attorney argued that the State had not proven defendant's intent to distribute the drugs he carried down the stairs.
We begin with a discussion of defendant's objection to the adequacy of the jury instruction on possession of heroin with intent to distribute in a public housing zone, which was the only crime charged in count five of the indictment. Although the initial charge was not correct, we have no doubt that the instruction, read as whole, adequately described the elements of the crime charged and was not capable of leading the jury to a result it would not have reached if the initial charge had been proper. See State v. Brims, 168 N.J. 297, 306 (2004) (stating the standard for plain error under Rule 2:10-2 in the context of error in a jury charge on the elements of a crime and considering the instruction as a whole).
Our conclusion that the jury charge as a whole properly informed the jurors of the material elements of the crime charged in count five of the indictment is based on the facts set forth below.
No count in the indictment included an allegation that defendant distributed a controlled dangerous substance. All of the charges were based on simple possession or possession with intent to distribute. The court's initial instruction to the jurors included a thorough description of the elements of possession of a controlled dangerous substance with intent to distribute, which was charged in count three of the indictment, and possession of a controlled dangerous substance with intent to distribute in a school zone, which was charged in count four of the indictment. In instructing the jurors on count five of the indictment, however, the court initially detailed the elements of distribution of a controlled dangerous substance within 500 feet of a public housing facility. The verdict sheet prepared by the court included a similar error; it erroneously referenced the charges in both counts four and five as distribution with intent to distribute in a school zone and distribution within 500 feet of a public housing complex.
The court corrected the verdict sheet during deliberations. The jurors were told that the "titles" on count four and five were a "mistake" and that the verdict sheet should read "possession of a controlled dangerous substance with intent to distribute within  1000 feet of a school" and "possession of a controlled dangerous substance within 500 feet of a public housing facility." The court explained, "So the title is wrong. Its not very significant, but I wanted to bring it to your attention." The jurors were then given a verdict sheet that correctly listed the charges included in counts four and five of the indictment.
The jurors subsequently asked for a pertinent clarification of the court's instruction. In their note, the jurors succinctly stated the issue: "Definition of intent to distribute as it applies to this case versus completed transaction." In response, the court, with the agreement of counsel, repeated the instruction on possession of a controlled dangerous substance with intent to distribute that the court had given on count three of the indictment.
Viewed in this context, we have no doubt that the initial error in the jury instruction was incapable of leading the jury to a result it would not otherwise have reached. The jury had a complete instruction on the elements of the crimes charged in the indictment and supported by the evidence. Accordingly, we reject the argument raised in Point III of defendant's brief.
Defendant contends that his judgment of conviction must be amended to reflect a conviction for conspiracy in the third degree because the indictment alleged nothing more than a conspiracy "to possess a controlled dangerous substance and possess with intent to distribute a controlled dangerous substance." Defendant is correct. A "conspiracy is a crime of the same degree as the most serious crime which is the object of the conspiracy." N.J.S.A. 2C:5-4a. This indictment did not include any allegation that would elevate the object crime of possession or possession with intent to distribute to a crime of the second degree. See, e.g., N.J.S.A. 2C:35-7.1 (based on commission within a public housing zone); N.J.S.A. 2C:35-5b(2) (based on quantity). It is well-settled, that a defendant may not be convicted of a crime not properly alleged in the indictment. See State v. Wein, 80 N.J. 491, 497, (1979) (discussing notice that must be included in an indictment). Accordingly, the judgment of conviction must be corrected.
The arguments raised in Points I, II and VI lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we provide only a brief explanation of our reasons for reaching that conclusion on each of those issues.
The claim presented in Point I is based on the declaration that Eddy Williams made to Turzani -- "We got the diesel." Eddy Williams's simple declaration of joint possession with an unnamed person did not inculpate defendant. For that reason, defendant was not deprived of the right to confront a witness against him when Turzani repeated Eddy Williams's declaration when testifying about their encounter. See State v. Benitez, 360 N.J. Super. 101, 123-24 (App. Div. 2003) (concluding that admission of a hearsay statement made by a confederate did not violate the defendant's right to confront a witness against him because the confederate's statement did not inculpate the defendant); cf. State v. Rivera, 351 N.J. Super. 93, 98 (App. Div. 2002) (concluding that admission of a non-testifying co-defendant's excited utterance, which implicated defendant in the crime, deprived the defendant of the right to confront his co-defendant), aff'd o.b. 175 N.J. 612 (2003). Nothing Eddy Williams said identified defendant as a participant in a drug transaction. It was defendant's appearance in response to Eddy Williams's call of "Yo!" that implicated him as the person who held the drugs.
The argument defendant raises in Point II is based on the detectives' testimony about complaints of drug dealing in the courtyard and hallways of the housing project. That testimony was offered to explain why the officers dressed in plain clothes in an effort to purchase drugs and arrest the sellers. This testimony did not violate defendant's right of confrontation, because it did not suggest or permit the jurors to infer that the detectives had information about the identity of any person involved in the reported transactions. See State v. Bankston, 63 N.J. 263, 266-72 (1973) (holding that officers violate a defendant's right of confrontation when they give testimony that suggests they have information from a non-testifying witness about the defendant's involvement in criminal activity).
Defendant's claim that his sentence is manifestly excessive is based primarily on his objection to the imposition of a "discretionary" period of parole ineligibility. The period of parole ineligibility was not discretionary. A term of parole ineligibility was required by N.J.S.A. 2C:35-7 and properly imposed even though that conviction merged with his conviction for possession with intent to distribute within 500 feet of a public housing zone. See State v. Dillihay, 127 N.J. 42, 45 (1992) (discussing the consequences of merger of a conviction for third-degree possession with intent to distribute in a school zone with a crime of the second degree based on possession of the same drugs). To the extent that defendant objects to the duration of his sentence and the term of parole ineligibility, we cannot conclude that the trial court erred in identifying or balancing the aggravating and mitigating factors that were supported by competent credible evidence in the record. State v. O'Donnell, 117 N.J. 210, 215 (1989).
We decline to consider defendant's claim that he did not have effective assistance of counsel. See State v. Preciose, 129 N.J. 451, 459-60 (1992). He may raise the allegations presented in Point V of his brief by way of petition for post-conviction relief.
The matter is remanded for amendment of the judgment of conviction to reflect a conviction for conspiracy in the third degree on count one, and the judgment and sentence are otherwise affirmed.