June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILFREDO GUZMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, No. 95-08-0834.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 11, 2008
Before Judges Wefing and Collester.
Tried to a jury, defendant was convicted of one count of distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(a)(1), -(b)(3), and distribution of a controlled dangerous substance, cocaine, within one thousand feet of school property, N.J.S.A. 2C:35-7. After the jury retired to deliberate, but before it returned its verdict, defendant absconded and was not apprehended for more than nine years. At sentencing, which took place nearly ten years after defendant's trial, his conviction for distribution was merged into the school zone conviction, and the trial court sentenced defendant to five years in prison, with a three-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm but remand for entry of a corrected judgment of conviction.
Defendant raises the following arguments on appeal:
UNION COUNTY INDICTMENT NO. 95-08-0834 IS FATALLY DEFECTIVE
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
THE PROSECUTOR'S COMMENTS DURING SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL
THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF SEARCHES AND SEIZURES UNRELATED TO THE CASE AT BAR
Defendant's first argument does not require extended discussion. First, defendant did not move prior to trial to challenge the indictment. R. 3:10-2. Further, he cites no authority for the proposition that the State must present to the grand jury evidence as to the particular school, its address or location to support an indictment on a school zone charge. Police Officer Rodney Sanders of the Plainfield Police Department testified before the grand jury that the particular transaction at issue occurred within one thousand feet "of property owned by or leased to an elementary or secondary school or school board and which [was] used for school purposes." This testimony was a sufficient statement for purposes of charging an offense under N.J.S.A. 2C:35-7. Finally, he makes no assertion that his defense at trial was in some way hampered by the lack of specificity before the grand jury.
Defendant was arrested on the evening of November 28, 1995, after Officer Sanders and his partner Officer Leslie Hudson, who were on routine patrol in an area that they knew was plagued with drug trafficking, observed defendant engage in a hand-to-hand transaction they, based upon their experience, considered to be a narcotics transaction. In sum, they observed defendant hand to Robert Parker an object they could not identify and Parker in turn hand to defendant green paper they believed to be currency. Defendant put the currency in his jacket pocket. The two men started to walk away when the two officers approached them. Defendant was found to have $243 in cash and Parker a vial of suspected cocaine. Both men were placed under arrest.
Prior to the trial getting under way, defendant filed a motion to suppress. Officer Sanders testified at the motion and the trial court, at the conclusion of the hearing, put its findings and conclusions on the record in support of its decision to deny the motion. Defendant now argues that the trial court erred in this regard. We do not agree.
Initially, we note the limited scope of our review. We must defer to the trial court's factual findings based upon the testimony it heard at the motion. State v. Locurto, 157 N.J. 463, 471-72 (1999). We may not disregard those findings simply because we might, if we had heard the testimony, have come to a different conclusion.
Defendant contends that the officers lacked probable cause for their actions. We disagree. Both officers were experienced and had made a number of narcotics-related arrests. Their training and experience were sufficient to permit them to recognize a probable drug sale taking place in front of them; there was no necessity that they actually observe the item which defendant passed to Parker.
This case is distinguishable from State v. Pineiro, 181 N.J. 13 (2004), in which the police observed one individual pass a cigarette pack to another. The Supreme Court concluded in that case that the fact that the police knew that drug dealers may choose to transfer their wares in a cigarette pack did not give rise to probable cause to search the cigarette pack or even justify a pat-down. Id. at 28.
Here, the trial court cited the totality of the circumstances which confronted the officers. These included the observed exchange of currency for a small object, that the area in which the exchange took place was known for drug trafficking, and that the officers knew that complaints had been received that defendant was selling drugs from this location. Defendant's assertion that the trial court based its decision largely on this latter factor is not supported by the record.
We reject so much of defendant's argument as contends that the officers' knowledge of the anonymous telephone call reporting that defendant was engaged in the drug trade tainted this search. In support of that position, defendant refers to the Supreme Court's opinion in State v. Golotta, 178 N.J. 205 (2003), which dealt a motor vehicle stop after a motorist made a 9-1-1 call to describe the vehicle's erratic operation. In the course of its opinion, the Court gave the following caveat:
For example, an anonymous call to 9-1-1 reporting that an individual possessed illegal narcotics in his car or home would not, absent other factors, lend itself to the kind of reduced corroboration permitted in this case. [Id. at 220.]
That caveat would have pertinence to the present matter if the officers' actions had been based purely upon the 9-1-1 calls that had been placed about defendant's activities. But that is not what occurred. The officers approached defendant based upon their own observations of defendant's conduct, informed by their experience on the job.
Defendant also complains of certain remarks by the prosecutor in summation and contends that they were unfair and deprived him of a fair trial. Having reviewed the summation of both counsel, we do not agree. Certain of the remarks were in response to comments by defense counsel in her summation. Others were entirely proper comments on the evidence presented during trial. And, for the two remarks the trial court held to be improper, it gave a clear and forceful limiting instruction to the jury, telling it to disregard those comments in their entirety. The prosecutor's summation in this case provides no basis to reverse defendant's conviction.
Defendant's final argument is that the trial court improperly permitted the officers to testify about the results of other narcotic-related arrests they had made, and in particular their discovery of narcotics on those occasions. Apart from the fact that there was no abuse of the court's wide discretion in the reception of evidence, In re Commitment of G.D., 358 N.J. Super. 310, 316 (App. Div. 2003) ("A trial court's decision whether or not to exclude evidence will not be disturbed unless it is so wide of the mark that a manifest denial of justice resulted."), much of the material of which defendant now complains was also elicited by defense counsel in cross-examination.
Defendant's conviction is affirmed. The judgment of conviction, however, incorrectly reflects that the matter was concluded by a plea of guilty when in fact it was tried to conclusion before a jury. We thus remand the matter for entry of a corrected judgment of conviction.
Affirmed; remanded for entry of a corrected judgment of conviction.
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