September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER HARVEY,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 06-04-0864.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Wefing and Parker.
Tried to a jury, defendant was convicted of one count of possession with intent to distribute an imitation controlled dangerous substance, a crime of the third degree, N.J.S.A. 2C:35-11a(1), and one count of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a.*fn2 The trial court granted the State's motion to sentence defendant as a persistent offender to an extended term, N.J.S.A. 2C:44-3a, and sentenced defendant for the distribution conviction to nine years in prison, four and one-half of which would have to be served before defendant would be eligible for parole, and a concurrent one hundred eighty days for resisting arrest. Defendant has appealed. After reviewing the record in light of the contentions raised on appeal, we affirm.
Defendant's trial was brief. All the testimony was presented in one day. Detective Owen Ingenito of the Atlantic City Police Department was working in an undercover capacity on January 2, 2006, near the intersection of Pacific and Columbia Avenues, an area known as a high-crime area, specifically for prostitution and narcotics trafficking. Detective Ingenito was conducting an investigation into prostitution in that area when he noticed defendant standing across the street from him. Defendant gestured for Ingenito to come to him, and the detective looked around to see if defendant was gesturing to someone else. He saw no one else but stayed where he was. Defendant crossed the street and approached Ingenito. During the conversation, defendant said there was a large party in town and asked the detective whether he did "lines," a reference to cocaine. The detective said he did; defendant then asked if he had $100 with him. Again, the detective said he did and produced a $100 bill from his wallet. Defendant said he had a $100 bag with him and asked if the detective wanted a sample; Detective Ingenito said he did. Defendant said the detective should follow him around the corner. When they got around the corner, defendant took off his left boot and pulled out a bag with a white powdery substance. At that point, Detective Ingenito identified himself as a police officer, grabbed defendant's arm and told him he was under arrest. Defendant tried to slip away; there was a brief struggle, but Detective Ingenito managed to place defendant in handcuffs. Subsequent testing at the State Police laboratory determined that the substance was not cocaine.
Defendant testified to a different version of what occurred. He said he had come down with a headache and went to a nearby convenience store to purchase a packet of BC, an over-the-counter headache powder. He put it in his shirt pocket and went to look for a cup so he could take the medicine with water. He said the detective called to him, indicating he should come across the street. Defendant did so and the detective asked him if he knew where he could find some girls. Defendant answered that he did and reached into his pocket to retrieve a card for a hotel; as he did so, his headache medication came out of his pocket and the detective grabbed him and placed him under arrest. He said he tried to explain that it was his headache powder but he was arrested nonetheless. He denied ever trying to sell anything to the detective for $100. By its verdict, the jury rejected defendant's testimony.
Defendant raises the following arguments on appeal:
POINT ONE: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE, DESPITE A CAUTIONARY JURY INSTRUCTION, POLICE TESTIMONY ABOUT THE DEFENDANT'S STATEMENTS CAUSED SUBSTANTIAL PREJUDICE AND BROUGHT ABOUT AN UNFAIR GUILTY VERDICT
POINT TWO: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED A SERIOUS ERROR WHEN IT SENTENCED THE DEFENDANT TO 9 YEARS, WITH A 4 1/2 YEAR PAROLE DISQUALIFIER, ON COUNT 1, BECAUSE THE COURT DID NOT FULLY CONSIDER THE AGGRAVATING AND MITIGATING FACTORS
Following defendant's arrest, Detective Owens prepared a report of what had occurred. According to that report, defendant approached him and told him there was a "large party in town tonight, lots of girls with big tits and big asses." Defendant filed an in limine motion seeking to bar the detective from reciting this conversation, contending it was not material to the charges against defendant and would be unduly prejudicial. The trial court ruled that the detective could say that defendant approached him and said there was a large party in town but could not include the reference to physical attributes.
During his direct testimony in response to the question "And what did he say?" Detective Ingenito responded, "He asked if I were looking for some girls. I told him I was. And then he told me there was a large party in town." With that answer, defendant moved for a mistrial, contending there had been a violation of the court's earlier ruling. The trial court denied the application. It characterized the reference to "some girls" as inadvertent and not prejudicial. Nonetheless, it gave the following curative instruction:
THE COURT: Ladies and gentlemen, I'm going to strike one part of that answer because, um, I don't want it to suggest to you that there's any allegation here that the defendant in this case had anything to do whatsoever with the prostitution that they were investigating or the prostitute that they were investigating. I'm not going to strike the part where the defendant initiates a conversation with having, there's a big party in town. But the reference to looking for a girl, that has nothing to do with this case. I'm going to strike it from there. You are not to decide this case with any, any consideration at all with regard to what the officer indicated as far as, um, the girl part of it. This is purely and simply a case alleging possession with intent to distribute imitation CDS. And then of course there's the allegation that the Prosecutor advised you about . . . resisting. And those are the issues you're to consider. You're not to consider anything dealing with the prostitution that they were investigating because it has nothing to do with this defendant. Does everybody understand that clearly? Okay. go right ahead, Prosecutor.
We are satisfied that this curative instruction ameliorated whatever slight prejudice might have flowed to defendant from the detective's brief reference. The decision whether to grant or deny an application for a mistrial rests in the sound discretion of the trial court. State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). There was no abuse of the court's discretion in this regard.
Defendant made a motion for a new trial, contending that he was unfairly prejudiced by this testimony. The trial court denied this motion, correctly in our judgment. As with the motion for a mistrial, the trial court's curative instruction was more than sufficient to prevent any possibility that defendant was unfairly prejudiced.
We also reject defendant's challenge to his sentence. According to the presentence report, defendant had eleven prior indictable convictions and had, over the course of his criminal career, used nearly twenty different aliases. The trial court's conclusion that defendant should be sentenced at the upper range of the permissible scale is fully supported by the record. Defendant stresses that his last prior conviction occurred in 1994. That argument overlooks the fact that defendant was sentenced to a lengthy term of imprisonment in 1994 and was only released from custody in September 2004, less than eighteen months prior to the instant offense.
Defendant has filed a pro se supplemental brief in which he contends his conviction should be reversed because of "police errors." Defendant is not entitled to a reversal because the laboratory report revealed that the powdery substance was not a controlled dangerous substance. N.J.S.A. 2C:35-11.
Defendant's convictions and sentence are affirmed.