September 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID MINOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. No. 02-05-1845.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges A. A. Rodríguez and Collester.
At about 5:30 p.m. on August 18, 2001, Irvington police officers Brian Rice and Maurice Gattison along with Fanwood police officer (former Irvington officer) Ken Zwirko and Essex County Sheriff's Detective Reginald Holloway were patrolling 22nd Street in Irvington, which was known to be a high drug trafficking area. They had received many complaints that day of drug activity at 184 22nd Street. When they arrived, they saw co-defendants Hassan Ali and Reynaldo Jordan standing in front of the abandoned multi-story building. After spotting the police, Jordan threw a bag into a rear window of the house, and Ali dropped an object. Both were detained. Ali had dropped a pink cap containing cocaine, and the glassine envelope thrown by Jordan contained heroin.
At this time Officer Zwirko saw defendant and co-defendants Mark Williams and Darryl Williams in a room on the first floor of the building. Defendant was holding a plastic bag. When the officers ordered the three to halt, Mark Williams threw a bag out the window to the ground which was later found to contain vials of cocaine. All three men then ran upstairs. Entering the house, the officers found plastic bags known as "stash bags" on the first floor and $395 in cash.
K-9 Officer Rice arrived at the scene with his dog Bilko, and Bilko led the officers to a third floor closet. Officer Rice announced that if anyone was in the closet, they should immediately leave or the police dog would be turned loose. When the door opened, one man ran out and the other two were subdued by Bilko and the officers. The individual who ran from the closet was identified as defendant David Minor a/k/a David Smith. After he was arrested, defendant was searched and $9 was found on his person as contrasted with co-defendant Reynaldo Jordan who had $497.
At trial the State called Detective Holloway as an expert witness, and he responded to a hypothetical question that both the heroin and the cocaine were possessed with the intent to distribute. Defendant did not appear for his trial, and no witnesses were presented on his behalf.
On appeal defendant argues the following:
POINT I-THE PROSECUTOR'S IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 & 10. (Not Raised Below.)
POINT II-THE DEFENDANT'S AGGREGATE SENTENCE OF TEN YEARS, WITH FIVE YEARS PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS. VI AND XIV. (Not Raised Below.)
Although the defense presented no witnesses, defense counsel suggested that the jury draw an inference from the fact that only $9 was found on defendant to conclude that he was a buyer or bystander as opposed to a participant in drug distribution. Responding to the point in her summation, the prosecutor stated:
[W]here [are] David Smith and Mark Williams?
They are both in the closet. And even after they are told, announced, yelled out by Officer Rice, "Police. You're under arrest.
Come out. I have a K-9 dog." Does he come out? Does he say, "Later. I was just here to buy. Was just here to hang out with you.
I'm not going to have a dog come at (sic)... That dog is significant because it shows the defendant's state of mind.
No objection was made by defense counsel to the prosecutor's summation. Therefore, our scope of review is under the plain error rule, and we must determine whether the comment was "clearly capable of proving an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Defendant argues that the comment was both prejudicial and violative of his constitutional right to a fair trial to require a reversal. We disagree.
It is well settled that no inculpatory inference can be drawn from a defendant's decision to remain silent after his arrest, and a prosecutor may not argue to the jury that post-arrest silence infers that defendant is guilty of the crime charged. State v. Tilghman, 345 N.J. Super. 571, 576-77 (App. Div. 2001); State v. Pierce, 330 N.J. Super. 449, 492 (App. Div. 2000). In response, the prosecutor argues that the defendant's failure to respond to the K-9 officer was admissible under defendant's state of mind and consciousness of guilt.
That portion of the prosecutor's summation walks a line perilously close to violating the defendant's Fifth Amendment rights. However, we are not persuaded that this fleeting comment was so egregious and inexcusable to mandate a new trial. See Tilghman, supra, 345 N.J. Super. at 576-77; State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993). Here the comment did not relate to defendant's post-arrest silence. Moreover, it was an inartful way of responding to the defense summation. Under all the circumstances we find that the comment was not clearly capable of effecting an unjust result and therefore did not rise to the level of plain error.
Defendant's second argument relates to his sentence of ten years with a five-year period of parole ineligibility to run consecutive to the sentence he received of twenty years with NERA for first degree robbery reviewed by us under Docket No. A-6501-05T4. After merger, the sentencing judge found aggravating factors 1, 2, 3, 6 and 9. Since the sentence for the third degree offense was in excess of the then presumptive term of seven years, it is necessary that the matter be remanded for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006).
Affirmed as to conviction. Remanded for re-sentencing.
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