On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-06-0841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Parrillo.
Tried by a jury, defendant, Darrell Harper, was convicted of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count Three), and third-degree distribution within 1000 feet of a school, N.J.S.A. 2C:35-5a and -7 (Count Five). He was acquitted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Count One), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count Two), and third-degree possession of heroin with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-5a and -7 (Count Four).
The State's motion for a mandatory extended term, N.J.S.A. 2C:43-6f, was granted. The judge merged the Count Three and Count Five convictions, and imposed a six-year term with three years of parole ineligibility. Defendant appeals and raises the following points:
A REMAND IS NECESSARY FOR A HEARING ON WHETHER, UNKNOWN TO DEFENSE COUNSEL, THE STATE PROMISED LENIENCY IN EXCHANGE FOR THE BUYER'S TESTIMONY.
IT [IS] REVERSIBLE ERROR TO ALLOW THE STATE TO ELICIT EXPERT TESTIMONY FROM A NON-EXPERT ABOUT THE HABITS OF DRUG DEALERS, THE "GOING RATE" FOR DRUGS, AND BY PRESENTING A HYPOTHETICAL QUESTION REGARDING MR. STEARN BEING A "WELL-KNOWN BUYER" TO THE DEFENDANT. (NOT RAISED BELOW.)
BEING FOUND NOT GUILTY OF POSSESSION, BUT GUILTY OF DISTRIBUTION IS TOO INCONSISTENT TO SUSTAIN THE VERDICT. (NOT RAISED BELOW.)
UNDER THE CIRCUMSTANCES, IMPOSING SIX YEARS IN PRISON IS EXCESSIVE FOR ALLEGEDLY SELLING $6 OF DRUGS WEIGHING 0.36 GRAMS. (NOT RAISED BELOW.)
We reject defendant's contentions and affirm.
On May 8, 2003, three New Brunswick police officers, Detective Sam Hillyer, Detective Victor DeFilippo, and Officer Christopher Plowucha, observed a suspected drug transaction between defendant and Richard Stearn in front of 130 Redmond Street. At the time, they were on plainclothes patrol in an unmarked police van with Hillyer driving, DeFilippo in the front passenger seat, and Plowucha in the back seat. After observing the transaction, the officers moved in and placed both defendant and Stearn under arrest.
Stearn was indicted along with defendant and charged with one count of possession. Defendant's case was severed from Stearn's for trial. After defendant was convicted, the State dismissed the possession charge against Stearn.
Stearn, a heroin addict since 1999, appeared without his attorney under subpoena for the State. According to Stearn, defendant approached him and asked him if he wanted to purchase his last bag of heroin. Stearn placed the time of the transaction at between ten and eleven a.m. Stearn only had six or seven dollars on him, but told defendant that he would be needing more later and would get the remaining money for the bag to defendant later that day. Defendant agreed to sell Stearn a small bag of heroin for six dollars and Stearn could give him the remaining money later that day because he needed to "re-up"*fn1 anyway and it was his last bag. Stearn testified that the exchange of money for drugs occurred near a bodega in view of the police, who were turning the corner approximately 200 feet away. After he exchanged money for the drugs, Stearn stated that he went into the nearby bodega, then walked out and was arrested by the police.
Stearn also recounted his criminal record for possession of narcotics, for which he had been sentenced to probation after failing to complete pretrial intervention (PTI). At the time of the transaction, Stearn had been using approximately five to six bags of heroin a day, and he paid about fifteen dollars per bag. On cross-examination, Stearn admitted that he had been arrested and indicted for possession of heroin based on that transaction, and that he was represented by counsel and awaiting trial on those charges. However, he had yet to be given a court date even though it had been nearly two years since his arrest. His attorney was not present with him in court on the day of his testimony and he had not been given immunity by the prosecutor in exchange for his testimony. Although vigorously questioned about the circumstances of his attendance at trial, Stearn maintained that he was there solely because he had been subpoenaed, and that he was telling the truth for its own sake and not in exchange for a deal.
Hillyer, Plowucha, and DeFilippo each saw defendant hand Stearn the packet of drugs in exchange for money. Hillyer knew Stearn from prior arrests. Hillyer testified that, when they approached the suspects, Stearn froze in response to their command, while defendant put the cash in his pocket and turned to walk away from the scene. The police set the time of the transaction at three p.m. When arrested, defendant told the police that he walked there. Knowing that defendant occasionally drove a silver Mitsubishi, the officers located the car in the vicinity. Defendant's sister was inside the car. They searched the vehicle but found no drugs. The only drug recovered was the heroin defendant handed to Stearn.
The State called Detectives Dominick Zano and Michael Kosko of the New Brunswick Police Department's Identification Bureau. Zano and Kosko testified to their involvement in receiving the drug evidence and delivering it to the State Police Crime Lab for testing.
Defendant chose not to testify on his own behalf. He called his sister, who testified that she was waiting for her brother while he went to a store. She described the police search of the Mitsubishi, which was owned by the mother of defendant's children.
At sentencing, the defense argued in part that the verdict should be set aside because for Stearn to say that he did not have an expectation of leniency when he testified, considering that the charges against him were later dismissed, was "intellectually dishonest," and that such a tactic should not have been used by the prosecutor. The prosecutor stated that the reason he dismissed the charges against Stearn was because he was moved by Stearn's testimony. He represented to the judge that there was no prior deal in place between himself and Stearn to dismiss the charges.
Defendant first contends that the State withheld exculpatory evidence of a deal to dismiss the possession charge against Stearn in return for his testimony in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). He argues that a remand is in order to conduct a plenary hearing to determine whether the State promised Stearn leniency in return for testifying.
In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed. 2d at 218, the United States Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." "[T]o establish a Brady violation, the defendant must show: (1) the prosecution suppressed evidence; (2) the evidence [was] favorable to the defense; and (3) the evidence [was] material. State v. Martini, 160 N.J. 248, 268 (1999).
"[E]vidence is 'material' if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.' Id. at 269 (citations omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed. 2d 481, 494 (1995)).
Where the prosecutor has knowledge of exculpatory evidence against a defendant, "'[d]ue process requires that the State disclose information it possesses which is material to the defense, even where it concerns only the credibility of a State's witness.'" State v. Rodriguez, 262 N.J. Super. 564, 571 (App. Div. 1993) (quoting State v. Spano, 69 N.J. 231, 235 (1976)). "It is fundamental that [the] defendant has a right to explore, with a prosecution witness, evidence that the State has a 'hold' of some kind over the witness, the mere existence of which possesses the potential of prompting him to color his testimony in favor of the prosecution." State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996). Even if there is no express agreement between the government and the witness "that the witness will benefit from testifying favorably for the State, or, alternatively, that the witness will suffer because of failing to do so," a defendant is still entitled to cross-examine the witness with regard to this possibility. Id. at 313. "All that matters is that the witness subjectively regards himself as vulnerable to government pressure." Ibid.
Defendant asserts that the adjournment of Stearn's trial, his appearance under State subpoena without his attorney, his self-incriminating testimony, and the subsequent dismissal are coincidences that bespeak that a deal was in place, thus warranting a plenary hearing. However, at trial, the defense vigorously cross-examined Stearn regarding its contention that he was testifying in return for leniency:
[Defense Counsel]: Okay. You were named on this indictment along with ...