December 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HYKEEM ROSE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0011.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2008
Before Judges Reisner and Alvarez.
Defendant, Hykeem Rose, appeals his convictions and sentence for various drug possession offenses. We affirm the convictions and affirm the sentence imposed on counts one through four of the indictment. We vacate and remand as to the sentence on counts eight through eleven.
Defendant was found guilty by a jury of third-degree unlawful possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5 (count two); third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count four); third-degree unlawful possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count eight); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count nine); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count ten); and second-degree possession of cocaine with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count eleven).*fn1 He was acquitted on all other counts.
Defendant was sentenced on August 11, 2006, to a ten-year term of imprisonment with five years of parole ineligibility on count four, second-degree possession of heroin with intent to distribute within 500 feet of certain public property. Counts one, two, and three were properly merged by the sentencing judge into count four. Defendant was sentenced in the first-degree range to a mandatory extended term, N.J.S.A. 2C:43-6(f), of fifteen years with seven years of parole ineligibility on count ten, third-degree possession of cocaine with intent to distribute within 1000 feet of school property. Counts eight and nine were merged into count ten. The court sentenced defendant separately on count eleven, second-degree possession of cocaine with intent to distribute within 500 feet of certain public property, to ten years with five years of parole ineligibility. All sentences were to be served concurrently.
Defendant raises the following points in his brief:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE
THE TRIAL COURT ERRED IN DENYING DEFENDANT A HEARING TO DECIDE WHETHER A MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED
THE COURT ERRED BY NOT ALLOWING THE DEFENDANT TO RETAIN ANOTHER ATTORNEY OR TO REPRESENT HIMSELF
THE TRIAL COURT ERRED BY NOT ENTERING A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE WHICH WAS PLAIN ERROR (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY NOT HOLDING A CHARGE CONFERENCE WHICH PREJUDICED THE DEFENDANT (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN ALLOWING ONE OF THE ELEMENTS OF COUNT 11 TO BE PROVED BY JUDICIAL NOTICE WHICH WAS IMPROPER (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN ALLOWING TESTIMONY RELATING TO THE CDS PRIOR TO THE TESTIMONY BY THE LABORATORY EXPERT WHICH WAS CONTRARY TO RULE 602 OF THE RULES OF EVIDENCE
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
THE TRIAL COURT ERRED BY IMPOSING AN EXTENDED TERM SENTENCE WITHOUT THE GROUND THEREFOR BEING ESTABLISHED AT A HEARING PURSUANT TO [N.J.S.A.] 2C:43-6[(f)] (NOT RAISED BELOW)
The charges arose from defendant's arrest on September 23, 2005. Jersey City Detective Rudy Snelling and other officers were conducting an investigation of a five-family building located on Bergen Avenue. While looking through the glass panels of the building's front door, they saw a man and a woman engaged in what appeared to be a drug transaction. The man, later identified as defendant, had just taken currency from the woman and was reaching into a mailbox when the officers opened the door to the building. Upon the officers' entry, defendant slammed the door of the mailbox shut, but the key remained in the lock. The woman, later charged with possession, dropped two bags of heroin onto the floor. When defendant was arrested, he had a twenty-dollar bill in his hand. A subsequent search disclosed an additional $250 in his pockets.
Upon opening the mailbox, the officers found a purple Crown Royal bag containing 118 vials and two baggies of cocaine and heroin. During his testimony, Snelling testified that the location of the transaction was within 1000 feet of a nearby school, P.S. 15, and approximately fifty-one feet from Audubon Park.
On June 5, 2006, the day before trial was scheduled to commence, defendant complained to the judge that his attorney was not "working in [his] best interest" and that he "would like a different attorney." The court responded that it was "a little too late" for the request to be honored, and defendant went on to complain that his attorney had not filed any motions on his behalf. The trial judge advised defendant that his concerns would be addressed the following morning, but the start of the trial would not be delayed unless there were "viable motions that should be made."
Immediately prior to jury selection on June 6, 2006, defendant told the court that he had asked his attorney to file a motion to suppress on the basis that he did not live in the building, that the mailbox in which the drugs were found was not his, and that he had been merely "waiting for a ride" inside the building. The court explained that those were not legal grounds for the filing of a motion to suppress. Defendant also complained that he had never seen the grand jury transcript. As a result, the trial judge supplied him with a copy and gave him sufficient time to read it prior to the start of trial.
Defendant also protested that his attorney had not taken photographs or interviewed witnesses. He asked again if he could discharge his attorney, and the court said, "[I]t's too late now to change lawyers." On the second day of trial, defendant asked if he could represent himself, but the court responded, "[I]t's much too late for that, sir."
Our review of the record discloses that defendant's appellate arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, some brief discussion is appropriate.
Defendant's first point is that his motion to suppress evidence should have been granted. Because defendant did not file a motion to suppress, no motion could have been granted. The trial court, in the most literal sense, did not err in its consideration of the suppression issue because none occurred.
Similarly, the claim that the trial court should have conducted a hearing sua sponte to determine whether the indictment should be dismissed has no merit. Neither defendant nor his attorney requested dismissal of the indictment. No facts are alleged on appeal in support of the argument that a hearing to dismiss should have been conducted in the absence of a motion.
We are also of the opinion that defendant's request that he be assigned another attorney was properly denied. As we have previously said:
We do not... deviate from a long line of cases recognizing that a court may not require the Public Defender to assign new counsel to a defendant who was dissatisfied with the attorney assigned to represent him, absent a showing of "substantial cause." Disagreement over defense strategy does not rise to the level of good cause or substantial cause. The constitutional right to the assistance of counsel provides a fair opportunity to secure and consult counsel of a defendant's own choice, but there is no absolute right to a particular counsel. Moreover, the constitution does not guarantee that counsel appointed for a defendant shall measure up to his notions of ability or competency. Assigned counsel is not required to dance to the prisoner's tune. Simply put, a defendant does not have the right to accept or reject assigned counsel, as whim or scheme dictates. The right to assigned counsel is not the right to pick an attorney of one's own choosing, nor the right to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented. [State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998) (internal citations omitted and emphasis added).]
Defendant did not assert any substantial cause, or even legitimate cause for that matter, for his attorney's removal, and his request was untimely. Because no substantial cause was proffered, it was not error for the trial judge to proceed with the trial and deny defendant's request.
Nor was it error for the trial court to deny defendant's belated request to represent himself. As we have previously said, "'The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress.'" State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div.), certif. denied, 170 N.J. 210 (2001) (quoting State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied, 135 N.J. 468 (1994)). Trial judges are granted considerable discretion when weighing requests for self-representation. See ibid. It was not a mistaken exercise of discretion for the trial judge to deny defendant's request made on the second day of trial.
Along the same lines, there is no rational basis for counsel's contention on appeal that the trial court should have sua sponte granted defendant a judgment of acquittal. At the close of the State's case or after all evidence has been given, the trial court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must determine whether "viewing the State's evidence in its entirety,... a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). A reasonable jury could have easily concluded that Detective Snelling observed defendant and the woman in the apartment building engaged in a drug transaction. After his arrest, defendant was found to have a significant amount of cash on his person, and the mailbox contained a large quantity of drugs. The jury's verdict and the failure of the court to acquit sua sponte are both unremarkable.
As to the argument that the court erred in failing to conduct a charge conference, we disagree with defendant's characterization of the facts. After closing arguments, the trial court asked the attorneys on the record if they had any specific requests to charge. Both indicated that they did not. This simple inquiry is in accord with Rule 1:8-7(b). It served as an adequate jury charge conference in a case that posed no unique legal or factual issues. Counsel was afforded the opportunity to make requests, was no doubt aware of the model jury charges that were about to be given, and declined to request additional charges because they were unnecessary.
Contrary to defendant's assertion, the State did not prove a statutory element of count eleven, that the possession occurred within 500 feet of public property, by judicial notice. Detective Snelling testified that Audubon Park was located within fifty-one feet of, and could be seen from, the front of the building where defendant was arrested. A map depicting the location of the apartment building as within 500 feet of the park was admitted into evidence without objection. The map was certified by the director of the Division of Engineering for Jersey City. The State asked that judicial notice be taken only as to the ordinance certifying the accuracy of the map. Although the trial judge said that he was taking judicial notice of the fact that the map was prepared by the city pursuant to the ordinance, he also said that it was the jury's responsibility to determine whether or not the location of the premises was within 500 feet of a public park. Nothing the trial judge said improperly infringed upon the jury's responsibility to deliberate on that statutory element.
In like manner, there was no error in the admission of Detective Snelling's testimony that the bags dropped by the would-be buyer contained cocaine before the forensic expert testified as to the chemical analysis of the contents of the bags. The trial court overruled defense counsel's objection to Snelling's direct testimony. During cross-examination, Snelling corrected his direct testimony that the bags contained cocaine and indicated that they actually contained heroin.
A trial court's decision as to the admissibility of evidence is an exercise of discretion generally entitled to great deference. State v. Fortin, 189 N.J. 579, 597 (2007). Snelling's training and expertise entitled him to testify as to his belief that the contents of the vials and bags were controlled dangerous substances. "Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary."
State v. LaBrutto, 114 N.J. 187, 198 (1989). Moreover, the State later properly presented expert testimony confirming that the suspected contraband was cocaine and heroin. The trial court's decision in this instance was a proper exercise of discretion.
Defendant also asserts on appeal that the sentence was manifestly excessive and that the trial court sentenced him to an extended term pursuant to N.J.S.A. 2C:43-6(f) without a hearing. The court did in fact conduct the brief hearing required by statute prior to imposing a mandatory extended term sentence, and thereby fulfilled the statutory requirements.
A mandatory extended term hearing requires the State to submit a certified judgment of conviction establishing that defendant, on at least one prior occasion, was convicted of a distribution offense. See N.J.S.A. 2C:43-6(f). At the hearing, a defendant has the right to challenge judgments of conviction that do not accurately reflect his prior criminal history.
N.J.S.A. 2C:44-6. In this case, both attorneys referred to the judgments, as did the court, and defendant did not challenge the prior convictions. The trial judge, therefore, conducted the hearing as required by statute.
The sentence imposed on count four of ten years, five without parole eligibility, was not excessive. Defendant's assertion that the court should have awarded mitigating factor two, N.J.S.A. 2C:44-1(b)(2), because "defendant did not contemplate serious harm," lacks merit. Drug distribution is an evil that society acknowledges results in very serious harm. See, e.g., State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). Nor could the court have fairly found mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), that the circumstances were unlikely to recur, as the record is devoid of any information about defendant that would justify the award of that factor. Mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that defendant's imprisonment would impose a hardship on his dependents, could not have been awarded either because no information at all about defendant's family circumstances appears in the record.
The court did find aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense, based on his ten years of involvement with the criminal justice system commencing two months after his eighteenth birthday. The court also gave weight to the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6). Defendant had three prior convictions, which would have qualified him for a discretionary extended term sentence as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), even if a mandatory extended term had not been warranted. The court also gave great weight to N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. Defendant had previously received a conditional discharge, been placed on probation, and been incarcerated for a brief period of time with no deterrent effect.
The trial court properly identified and balanced the aggravating factors, which were supported by competent credible evidence, in setting the length of the term of incarceration. See State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.), certif. denied, 153 N.J. 216 (1998). Due to the great weight that he accorded the aggravating factors, and the absence of any mitigating, the judge imposed a sentence of ten years with five years of parole ineligibility on count four. This sentence does not shock our conscience. See State v. Roth, 95 N.J. 334, 364 (1984). There is no error as to counts one, two, three, and four in any respect, and the sentence on those counts is affirmed.
A remand is necessary, however, to address counts eight, nine, ten, and eleven. The trial court merged counts eight and nine into count ten. The lesser offenses, however, ordinarily merge with the greater. State v. Hammond, 231 N.J. Super. 535, 545 (App. Div.), certif. denied, 117 N.J. 636 (1989). Thus, count eight, third-degree possession of cocaine, can merge with either count nine, second-degree possession with intent, or count eleven, second-degree possession with intent to distribute within 500 feet of public property. Count ten, third-degree possession of cocaine with intent to distribute within 1000 feet of school property, can also be merged into either second-degree offense. Count ten's mandatory term of parole ineligibility would survive the merger. See State v. Dillihay, 127 N.J. 42, 54 (App. Div. 1992).
In addition, due to confusion as to the numbering of counts, the court imposed a mandatory extended term sentence in the first-degree range on a count for a third-degree offense. Accordingly, we affirm the convictions, but we vacate the sentences as to counts eight, nine, ten, and eleven, and remand those counts for resentencing, as well as for reconsideration of the merger issues.
Affirmed as to the convictions. Affirmed as to the sentence on counts one through four, vacated and remanded as to the sentence on counts eight through eleven.