November 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZICO NEWTON, A/K/A KENT FRANCOIS, LYNX, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-01729.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges R. B. Coleman andSimonelli.
Defendant Zico Newton appeals from the February 17, 2006 judgment of conviction entered following a trial by jury between November 14 and November 17, 2005, in the Law Division, Middlesex County. We affirm the judgment of conviction.
The jury found defendant guilty of fourth degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-5b(12), as charged in the third count of Middlesex County Indictment No. 04-12-01729.*fn1 The court sentenced defendant to a mandatory extended term of five years pursuant to N.J.S.A. 2C:43-6f for repeat drug offenders. The court also sentenced defendant on two violations of probation and imposed two fifteen month terms to run concurrent with each other and concurrent to the five-year term on the conviction for possession with intent to distribute. In addition, defendant's license was revoked for a six-month period and appropriate fines were imposed. The facts established at trial include the following. In October 2004, following an informant's tip on the location of illegal drug trafficking, the Anti-Crime Unit of the New Brunswick Police Department conducted surveillance in a residential neighborhood consisting of two adjacent apartment buildings at 54 and 56 Roosevelt Avenue in New Brunswick. The buildings are located on a dead-end street and are considered to be in a high crime area known for drug distribution. A six foot tall chain link fence stands at the end of the street and separates the apartment buildings from a vacant lot and adjacent industrial park on the other side of the fence.
On October 21, 2004, around 5:00 p.m., Detective Christopher Plowucha was conducting the surveillance from a concealed location, approximately 150 feet away from defendant, using binoculars for visual enhancement. Detective Plowucha first observed defendant, Zico Newton, in front of 54 Roosevelt Avenue and there were about a half dozen other people in his field of sight. The detective observed a Hispanic male approach and briefly converse with defendant, then hand defendant cash. Defendant pocketed the cash then walked away from the Hispanic man and toward the back of 56 Roosevelt Avenue.
Detective Plowucha watched defendant crawl through a hole in the chain link fence, bend down and lift a piece of carpet from the ground. He retrieved a sandwich bag of marijuana from underneath the carpet, replaced the carpet and returned to the Hispanic man. Defendant handed the man the bag of marijuana and the man promptly left the area. Detective Plowucha radioed his backup units and informed them that he had located defendant's stash of drugs. He directed the backup unit to take defendant into custody.
Detective Plowucha then guided, via radio from his undisclosed surveillance location, one of his backup officers, Lieutenant Paul Schuster, to the location of defendant's stash under the piece of carpet. At all times, Plowucha was able to observe Schuster locate and retrieve the contents of the stash. Underneath the carpet, Schuster found four quarter ounce bags of marijuana, four $20 bags, and numerous baggies used to package marijuana. Based upon the detective's observations, defendant was taken into custody, and the indictment was returned that eventually led to defendant's trial and conviction for possession with intent to distribute.
On appeal from that conviction, defendant raises the following contentions, which we shall address in turn:
POINT I: THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.
A. DEFENDANT'S RIGHT TO EFFECTIVE CROSS-EXAMINATION WAS UNFAIRLY DENIED BY THE TRIAL JUDGE IN ITS DENIAL OF DEFENDANT'S APPLICATION TO DISCLOSE THE POLICE SURVEILLANCE LOCATION.
B. DEFENDANT'S RIGHT TO DUE PROCESS WAS DENIED BY THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT'S MOTION TO DISCLOSE THE IDENTITY AND/OR ROLE OF THE CONFIDENTIAL INFORMANT.
POINT II: THE STOP OF DEFENDANT WAS NOT BASED ON ANY REASONABLE AND ARTICULATE SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPPRESSING THE EVIDENCE. (NOT RAISED BELOW).
POINT III: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF POSSESSION AND OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTION ON COUNT TWO MUST BE VACATED.
POINT IV: STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.
POINT V: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
POINT VI: THE COURT BELOW ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED SENTENCE.
First, defendant argues he was denied due process because the trial judge did not require the State to disclose the exact surveillance location nor the informant's identity. We disagree.
The New Jersey Supreme Court has recognized the State's right, under certain circumstances, not to disclose the exact location from which undercover surveillance is conducted. State v. Garcia, 131 N.J. 67, 70 (1993). In Garcia, the Court held that the "official information privilege" found in N.J.R.E. 515(b), formerly Evidence Rule 34, permits the State to withhold information about the exact location from which law enforcement officers observe criminal activity if the judge determines that disclosure of the information "will be harmful to the interests of the public." Id. at 74; N.J.S.A. 2A:84A-27. Additionally, the privilege exists if disclosure would present "a realistic possibility that revealing the location would compromise present or future prosecutions, or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. In Garcia, the Court gave the policy reasons underlying the privilege. Non-disclosure avoids "compromising on-going surveillances . . . . [It] protects police officers and private citizens from reprisal," and it "encourages citizens to cooperate with police." Garcia, supra, 131 N.J. at 74-75. Thus, in some circumstances, a defendant's right to information that is not vital to the defense must yield to the societal interest in effective law enforcement. Garcia, supra, 131 N.J. at 76-77.
Similarly, courts will deny identity disclosure of an informant absent a strong showing of need by the defendant. State v. Milligan, 71 N.J. 373, 387-389 (1976) (internal citations omitted). The need to protect the identity of informants is recognized in N.J.R.E. 516, which provides:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues. [N.J.R.E. 516; N.J.S.A. 2A:84A-28.]
We use a balancing test to weigh "the public interest in protecting the flow of information against the individual's right to prepare his defense." Milligan, supra, 71 N.J. at 384. Whether an informant's identity must be disclosed is case specific and requires consideration of factors such as the crime alleged, possible defenses of the accused, and potential significance of the informer's testimony. Ibid. Compelled disclosure is denied where the informer has only a marginal role in the events leading up to the arrest, such as providing law enforcement with information regarding potential illegal activity, or participating in the preliminary phase of a criminal investigation. Ibid.
Here, defendant failed to demonstrate a significant need to learn the identity of the informant who provided nothing more than a "tip" that illegal activity was going on at the specified location. That "tip" was corroborated by an undercover surveillance operation that eventually included the observations that led to defendant's arrest. The role of the informer was foundational, but marginal. Thus, we reject defendant's assertion that the court's refusal to compel disclosure of the informer's identity denied due process to defendant.
Defendant misstates the holding in Garcia to include elevation and angle of sight as coming within the Court's definition of information vital to defendant. Only distance and use of vision-enhancing articles are "always" considered vital by the Court. Id. at 81. Elevation and angle of sight can be information vital to defendant, but not in every case. Ibid. Here, defendant failed to show how the concealment of the vantage point as to elevation and angle of sight deprived him of effective cross-examination of Detective Plowucha. The sealed record is sufficiently detailed to facilitate appellate review and we find the trial court properly balanced defendant's need for disclosure against the State's interest in shielding potential victims from retaliation and protecting future surveillance operations.
Defendant next argues, for the first time on appeal, that his arrest and the subsequent seizure of his drugs were unlawful because the evidence at trial failed to support reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968). Defendant also claims ineffective assistance of counsel because his attorney failed to make a motion to suppress the alleged ill-got evidence. This issue is, therefore, reviewed under the plain error standard. It is not reversible error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. We note that a law enforcement officer testified that he observed defendant retrieve drugs from his stash location and sell them to another individual. That observation alone would support reasonable suspicion for further investigation under Terry.
Moreover, the defendant in Garcia made an argument similar to the argument made by defendant herein. In Garcia, the court held that the State's evidence was substantial in that the surveillance was initiated based on an informant's tip that someone was dealing drugs in the area, the officer had observed defendant selling drugs, and the recovery of drugs at defendant's location corroborated the officer's testimony. Garcia, supra, 131 N.J. at 82-83. The evidence in the present case is strikingly similar to that in Garcia, and is sufficient to show reasonable, and articulable suspicion under Terry.
As to defendant's claim of ineffective assistance of counsel, our Supreme Court has held that "the purpose of the constitutional guarantees of effective assistance of counsel 'is not to improve the quality of legal representation . . . [it] is simply to ensure that criminal defendants receive a fair trial.'" State v. Arthur, 184 N.J. 307, 332-333 (2005) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, the reviewing court does not engage in grading lawyers' performances; its only interest should be in whether "'the adversarial process at trial, in fact, worked adequately.'" Arthur, supra, 184 N.J. at 333 (internal citations omitted). In Arthur, the Court held:
To be entitled to a new trial based on ineffective assistance of counsel, a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Arthur, supra, 184 N.J. at 318 (quoting Strickland, supra, 466 U.S. at 687) (emphasis added).]
The facts of this case show the detective had reasonable suspicion to stop defendant based on his surveillance. Moreover, recovery of defendant's drug stash, comprised of numerous bags of marijuana, corroborated the other evidence. We are not convinced that a motion to suppress this evidence would have been granted; on the other hand, we are satisfied that counsel's representation was not deficient in failing to make the motion. State v. Linton, 356 N.J. Super. 255 (App. Div. 2002).
Defendant contends the trial judge erred by denying his motion for a judgment of acquittal when the State rested its case. He claims the State had insufficient evidence to meet its burden to show drug possession and distribution. Our Supreme Court has instructed:
[I]n reviewing whether the trial court properly denied the motion for a judgment of acquittal, we must view the State's evidence in its entirety and give the State the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute. [State v. Spivey, 179 N.J. 229, 236 (2004) (internal citations omitted).]
Defendant argues that the evidence does not connect him to the CDS stash found by the detectives. However, viewing the evidence in its entirety and according favorable inferences to the State, we believe it does. First, an informant "tipped" the crime unit that defendant and another man, Titus Louison, were selling drugs at a specific location. During the ensuing undercover surveillance operation, Plowucha observed defendant take money from a Hispanic man, go to where the "stash pot" was located and retrieve one of the baggies therein, return and deliver the baggie to the man. Following defendant's arrest, detectives went to the stash and retrieved multiple bags of marijuana and drug paraphernalia which corroborated the informant's tip and the observation of the testifying detective.
As to possession, a person is in constructive possession of an object even if he does not have "physical or manual control" of that object, when "the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-237 (2004) (citing State v. Schmidt, 110 N.J. 258, 270 (1988)). Certainly sufficient evidence existed to submit the issue of possession to the jury for its consideration.
Defendant next contends that statements made by the prosecutor during closing arguments resulted in substantial prejudice to defendant's right to have a jury fairly assess the case against him. Defendant successfully barred the State's narcotics expert from testifying due to late notice. Now, defendant claims that the State's case is deficient because it had no narcotics expert's opinion as to whether defendant's possession of the drugs was for personal use or for distribution. Despite the absence of such an expert opinion, the prosecutor suggested inferences to the jurors based on how the marijuana was divided up into uniform baggies, the number of baggies seized, and new, unused baggies kept at hand for some future purpose.
"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In evaluating whether prosecutorial misconduct has occurred, a reviewing panel looks at three factors: "1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. Generally, if no objection is raised by the prosecutor's remarks, the remarks will not be deemed prejudicial. Ibid. (internal citations omitted). Failure to raise an objection "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. Also, failure to object "deprives the court of an opportunity to take curative action." Ibid. (citing to State v. Bauman, 298 N.J. Super. 176, 207, (App. Div. 1996), cert. denied, 150 N.J. 25 (1997)).
Defendant contends that defense counsel made timely and proper objections to the prosecutor's remarks inferring intent to distribute. However, a thorough review of the transcripts show this not to be the case. The only objection raised by the defense during the prosecution's summation was regarding the prosecutor's use of a cigarette to attempt to demonstrate quantity as a comparison. The court sustained the objection and halted the demonstration. No objection was made at any time earlier in the prosecutor's summation regarding his inferences of intent to distribute.
Even if an objection was made, it is well established that "while a prosecutor's summation is not without bounds, '[s]o long as he stays within the evidence and the legitimate inferences therefrom, the Prosecutor is entitled to wide latitude in his summation.'" State v. Wakefield, 190 N.J. 397, 457 (2007) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). In Wakefield, the Supreme Court underscored that "'[a] prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence." Ibid.
Defendant claims the prosecutor's comments in summation could have "led the jury to a result it otherwise would not have reached." Specifically, he points us to this particular part of the prosecutor's summation:
I maintain that he possessed this marijuana with intent to distribute because it is not just those four bags, no, it's that bag and that bag and that bag and that bag. And even more telling . . . this should scream possession with intent to distribute, these small little empty, and you heard the testimony, so far unused plastic baggies.
Defendant contends that the State's case was deficient due to lack of expert testimony on the practices of drug dealers in packaging for distribution and plastic baggie use. Specifically, defendant alleges the prosecutor "asked the court to accept her opinion that baggies retrieved at the scene were indicative of drug distribution, a statement that was not supported by the evidence at trial." This argument failed in the trial court, and it fails here. The short answer is that expert testimony is not necessary in all CDS cases. State v. Nesbitt, 185 N.J. 504, 514 (2006).
In Nesbitt, the Court stated that the law did not require "the use of a narcotics expert to tell a jury that which is obvious." Ibid. "Trial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be." Ibid. We find no improper exercise of that discretionary role.
Defendant next contends that cumulative trial errors warrant a reversal. Under the cumulative error doctrine, where the trial errors are great, or in their aggregate have caused the trial to be unfair, "our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). However, defendant has failed to identify a single plausible trial error that occurred. Therefore, we are convinced the assertion of cumulative error lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Finally, defendant argues that the trial court abused its discretion when it imposed an extended sentence. Defendant also contends that his sentence was excessive because the trial judge "only considered the range of the enhanced term for this offense without considering terms also within the ordinary range." Defendant mistakenly relies on State v. Pierce, 188 N.J. 155 (2006) to support this contention. The Pierce Court remanded that case for reconsideration of sentencing to determine an appropriate sentence for the defendant within the expanded range of sentence terms available from the very bottom of the ordinary-term to the top of the extended-term range. Pierce, supra, 188 N.J. at 171. However, Pierce is readily distinguished from the present case because the matter before the Pierce Court concerned discretionary sentencing terms. The matter before this court involves a mandatory extended term.
Some enhanced term statutes confer discretion on the sentencing judge, and others are mandatory. The repeat drug offense statute, N.J.S.A. 2C:43-6(f), which is involved in this case, falls into the latter category. Mandatory statutes automatically impose an extended-term sentence "when the court finds certain facts, conditions, or circumstances to exist." Pierce, supra, 188 N.J. at 161 (discussing mandatory extended-term sentences imposed pursuant to N.J.S.A. 2C:43-6(f) in State v. Thomas, 188 N.J. 137, 149-50 (2006)). Compare discretionary sentencing in convictions under the persistent offender statute, N.J.S.A. 2C:44-3(a), which "grants a sentencing court discretion to impose an extended sentence when the statutory prerequisites for an extended-term sentence are present." Pierce supra, at 162.
Under the repeat drug offense statute, the statutory construction of N.J.S.A. 2C:43-6(f) "clearly indicates that the legislature meant the enhancement to be mandatory . . .
[a]ccordingly, case law implementing [the statute] uniformly has respected its mandatory nature." Thomas, supra, 188 N.J. at 149-50. The statute reads in relevant part: A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. [N.J.S.A. 2C:43-6(f) (emphasis added).]
Thus, once application by the prosecution for enhanced sentencing has been made, the sole determination for the trial judge is to verify that prior convictions do, in fact, exist. Thomas, supra, 188 N.J. at 150-51. Upon a finding of the predicate prior CDS convictions, the extended term prescribed by statute becomes the new term range for sentencing purposes. Based on these principles, the sentencing judge correctly used the three to five year range under N.J.S.A. 2C:43-7(a)(5) which reads in relevant part:
In the case of a crime of the fourth degree pursuant to 2C:43-6 c., 2C:43-6 g. and 2C:44-3 d. for a term of five years, and in the case of a crime of the fourth degree pursuant to any other provision of law for a term which shall be fixed by the court between three and five years. [(emphasis added).]
This is defendant's fourth conviction for possession with intent to distribute. The sentencing judge considered the defendant's criminal record, including offenses that did not count toward his extended sentence, as well as taking the applicable aggravating factors three and nine into consideration, N.J.S.A. 2C:44-1a (3) and (9).
The State maintains that defendant's base term should be left undisturbed, but it appears to concede that defendant is entitled to a remand for reconsideration of sentence under Thomas, supra, 188 N.J. 137 (2006) (following mandate under State v. Natale, 184 N.J. 458 (2005)). We do not agree that a remand is necessary. Newton was convicted at the conclusion of the jury trial held November 14-17, 2005, and his sentencing hearing was held on February 17, 2006. Both proceedings are post Natale (decided August 2, 2005). In sentencing defendant, the trial judge does not make any mention of a presumptive starting point in her decision. Moreover, she provides ample reasons in support of imposing the upper end of the mandatory extended range of three to five years.*fn2
In setting the term of defendant's sentence, the judge based her decision on the substantial weight of aggravating factors three and nine, recidivism and deterrence respectively. As to the aggravating factors, the judge explained the weight given was due to "seven prior adult arrests resulting in three prior indictable convictions for which [defendant] received probation in the past  and violated." Clearly, recidivism was an issue before the court.
In sum, defendant's sentencing was post Natale. The term imposed does not contravene the Natale mandate on pipeline retroactivity cases. Additionally, the sentencing proceedings comport with the holdings of Natale and Thomas.