August 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE GARRETTE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-03-490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Parker and Koblitz.
Defendant George Garrett appeals from his convictions after trial for possession of heroin with the intent to distribute within 500 feet of public housing, possession of cocaine with the intent to distribute within 500 feet of public housing, both counts in violation of N.J.S.A. 2C:35-7.1, and resisting arrest, in violation of N.J.S.A. 2C:29-2a.
Defendant was arrested on the street after ten o'clock at night on November 5, 2005, in Jersey City, New Jersey. Two Jersey City police officers, Detective Keith Ludwig and Officer Steven Trowbridge, were in plain clothes sitting in an unmarked car when they saw defendant and his two co-defendants, Danny Perez (AKA Johnny Pacheco) and Rafael Rosado. The three defendants stopped twenty feet in front of the police car, across the street from the Montgomery Garden public housing complex. Defendant pulled a pouch out of his pocket and showed the other two men the contents. The two men handed defendant money and defendant handed the two men something from the pouch. When the police officers got out of their car to arrest the three men, Perez and Rosado threw the objects in their hands to the ground. Defendant walked away and refused to stop prior to being arrested. Inside the pouch were bags of heroin and vials of cocaine. The officers also recovered from the ground bags of heroin which had been discarded by Perez and Rosado.
On February 23, 2006, defendant, Perez and Rosado were indicted by a Hudson County grand jury in a sixteen-count indictment. Only the last count did not apply to defendant.
After a two-day trial, defendant was convicted of third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1)(count one); third-degree possession with intent to distribute less than one-half ounce of heroin, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within 500 feet of public housing, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7.1 (count four). Counts five through eight repeat the charges, alleging the same acts with cocaine rather than heroin, in violation of the same statutes. Defendant was acquitted of six counts.
After the appropriate mergers, defendant was sentenced to concurrent terms on counts four, eight and fifteen, resulting in an aggregate sentence of ten years in prison subject to a five-year period of parole ineligibility. He was also assessed the mandatory fines and penalties.
On January 16, 2007, defendant filed a pro se notice of appeal. On May 22, 2007, the Office of the Public Defender filed a notice of appearance on his behalf. On appeal, defendant presents the following arguments:
WHEN THE JURORS ASKED QUESTIONS OF FACT DURING DELIBERATIONS, THE JUDGE IMPROPERLY INFORMED THEM THEY WOULD HAVE TO RELY ON UNAIDED MEMORY, ALTHOUGH VIDEOTAPES OF THE PROCEEDING WERE AVAILABLE TO REFRESH THEIR MEMORIES. (Not raised below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE DEFENDANT'S AGGREGATE SENTENCE OF TEN YEARS WITH FIVE YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
In addition, defendant, in a pro se letter brief, raises the following supplemental argument:
A R. 3:18-2 MOTION WAS PRESENTED TO THE TRIAL COURT BELOW BUT WAS NEVER RULED ON.
BY NOT ADDRESSING THIS MOTION BY (sic) THE TRIAL JUDGE CLEARLY DENIED THIS DEFENDANT THE RIGHT TO A FAIR AND IMPARTIAL TRIAL IN VIOLATION OF THE 14TH AMENDMENT AND THE DUE PROCESS RIGHT OF THE STATE AND UNITED STATES CONSTITUTION.
After the jury began its deliberations, it sent out five questions in writing to the Court. Those questions read exactly as follows (including misspellings):
1) Were some of the drugs in the pouch when it was dropped?
2) The stores in the testimony Ludwig said there was a Chinese Resteraunt or a laundry matt But Raphael said a Chinese resteraunt or a Chinese store and laundrymatt
3) What happen to Perez?
4) Why wasn't Perz called along with Raphael?
5) Did Raphael buy ciggeretes and were they found with the narcotics
The trial judge told the jury that he had "gone over the questions with the attorneys in [his] chambers to determine what the court's response has to be." The trial court then told the jury: "[T]he only thing I can do is say that you have to rely upon the testimony and the description that was in evidence and we can't advise you on that." He also told them that if there was a conflict in the testimony that they found relevant, they must make up their minds as to which witness they believe was telling the truth. He informed the jury that the court cannot add information not presented during trial. They must rely on their memory of the testimony. Defendant did not object to these instructions. The trial court then told the jury that it was a quarter to five and asked them if they wanted to adjourn to return the next day. The jury responded that they were ready to reach a verdict, which they did shortly after returning to the jury room.
Defendant now complains that the trial court should have offered to play back the videotape to the jury.
The counsel and trial court all agreed about what should be said to the jury. Defendant presents no evidence that any particular part of the testimony would have cleared up any of the jury's questions nor that any of the questions were germane to the jury's finding of guilt. The jury did not ask to review any portion of the videotape of the trial. When the jury makes a specific request for a read-back of trial testimony, the trial court, within its discretion, should make a reasonable effort to accommodate it. State v. Wilson, 165 N.J. 657, 660 (2000). Here, however, no such request was made.
Because defendant's trial counsel did not challenge the trial court's response to the jury questions, his claim is considered under the plain error standard. R. 2:10-2. The plain error standard instructs that "[a] reviewing court may reverse on the basis of unchallenged error if it finds plain error clearly capable of producing an unjust result." State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). The manner in which the trial court answered the jury's question did not constitute plain error.
Defendant also argues that it was plain error for the trial court to read one phrase in the model jury charge relating to defendant's failure to testify. The trial court read defendant the model charge before defendant chose to have it read to the jury. Defendant at that time raised no objection to any language in the charge. At defendant's request, the trial court charged as follows:
As you know, the defendant elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. The facts (sic) should not enter into your deliberations and discussions in any manner or at any time. Defendant is entitled to have the jury consider all the evidence presented at trial. He is presumed to be innocent even if he chooses not to testify.
On appeal, defendant objects, for the first time, to the final phrase in the charge, "even if he chooses not to testify." Defendant argues that using the word "even" telegraphs to the jury that defendant should have testified. Defendant would prefer the language "regardless of whether or not" instead of "even." Had defendant requested that change in language from the model jury charge, the change might well have been granted by the trial court. See State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999) (finding Model Jury Charges are only guidelines) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)); Ewing v. Burke, 316 N.J. Super. 287, 294 (App. Div. 1998) (finding the model charges are only guidelines and a trial judge must modify the model charge when necessary so that it conforms with the facts, circumstances, and law that apply to the case being tried). Use of the word "even," however, is not clearly capable of producing an unjust result.
Defendant also argues that his sentence was manifestly excessive and not in conformance with the code of criminal justice. He argues that the trial court failed to articulate reasons why it found aggravating factors. The trial court found that three aggravating factors applied; the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3), the extent of the defendant's prior criminal record, N.J.S.A. 2C:44-1a(6) and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9).
At sentencing, defense counsel admitted defendant's criminal "record is fairly significant." Defendant had five prior convictions, four of which were narcotics offenses. The fifth conviction was for unlawful possession of a weapon. He had violated his probation and was sentenced to state prison more than once. The prosecutor pointed out defendant's lengthy record to the court during the sentencing hearing when she asked the trial court to find the three aggravating factors. The court did ultimately find those factors, although the court did not repeat the reasons articulated by the prosecutor. In the context of the arguments of counsel, it is clear the defendant's prior record was the reason for finding all three factors. See State v. Gallagher, 286 N.J. Super. 1, 28 (App. Div. 1995) (noting that although not expressly stated by the trial court, the trial court obviously concluded that the aggravating factors substantially outweigh the non-existing mitigating factors). Defendant's prior record is extensive and fully justifies the finding of the three factors and the sentence imposed.
Our review of a claim of excessive sentencing is limited. So long as the sentence imposed is within the applicable statutory framework and the aggravating and mitigating factors are based upon competent and credible evidence in the record, we will not disturb a sentence unless "the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
Defendant argues that his conduct neither caused nor threatened serious harm. N.J.S.A. 2C:44-1b(1) and (2). Defendant, however, was convicted of possessing two different illegal substances with the intent to distribute in close proximity to both a school and a housing project. Although the third-degree count charging proximity to a school merged into the more serious second-degree count charging proximity to a housing project, the behavior is more serious having occurred in both protected areas. See State v. Parker, 335 N.J. Super. 415, 420 (App.Div. 2000) (noting that the parole disqualifier provisions of N.J.S.A. 2C:35-7, the school zone charge, survive the merger). He also received a concurrent term for resisting arrest, although the trial court could have ordered defendant to serve the eighteen months imposed on that fourth-degree crime consecutive to the ten years imposed on the drug charges. The sentence imposed was not excessive.
Defendant argues in a pro se letter brief that the trial court did not rule on his motion for a judgment of acquittal notwithstanding the verdict of the jury. At the sentencing hearing, the trial court heard argument on the motion. After reviewing the evidence presented at trial, the trial court stated, [I]t was obvious from that testimony that there was an attempt to distribute and that plus the possession was more than sufficient for this jury to come back with possession with intent and possession with intent within five hundred feet of a housing complex.
We find that defendant's motion for a judgment of acquittal was properly denied by the trial court.
The standard to be applied in deciding a motion for judgment of acquittal made under R. 3:18-2 after the discharge of the jury is the same as that applicable to a motion for acquittal made at the close of the State's case or at the conclusion of the entire case. That standard is whether or not the evidence, be it direct or circumstantial, viewed in its entirety and giving the State the benefit of all the evidence favorable to it and all favorable inferences which could be reasonably drawn therefrom, is sufficient to enable a jury to find that defendant is guilty as charged beyond a reasonable doubt. If the evidence meets that standard, then the motion must be denied. [State v. Bowen, 154 N.J. Super. 368, 371 (App. Div. 1977)]
The trial court reviewed the evidence and rightly found more than sufficient evidence to convict.
After carefully reviewing the record and considering defendant's arguments, convictions and sentence are affirmed.
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