December 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKEY S. CURRIE, JR.,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, No. 05-06-0744.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Wefing and LeWinn.
Tried to a jury, defendant was convicted of one count of third-degree distribution of a controlled dangerous substance, cocaine and heroin, in violation of N.J.S.A. 2C:35-5(a)(1).
Defendant, who had two other indictments pending against him at the time, entered a negotiated plea of guilty to two counts of fourth-degree criminal contempt, N.J.S.A. 2C:29-9, after the jury returned its verdict. When defendant appeared before the trial court for sentencing, the court granted the State's motion to sentence defendant to an extended term. The trial court sentenced defendant to six years in prison for distribution of narcotics, with a three-year period of parole ineligibility. The trial court also sentenced defendant to serve one year in prison for each criminal contempt conviction, to be served concurrently with each other and concurrently with the six-year term. Defendant has appealed. We have carefully reviewed this record in light of the contentions advanced on appeal, and we are satisfied defendant's convictions and sentence should be affirmed.
Defendant's trial was brief. The State presented two witnesses, Detectives Michael Black and Kevin O'Brien of the Plainfield Police Department. Detective Black testified that he was conducting a surveillance operation in an unmarked vehicle at the intersection of West Third Street and Stebbins Place in Plainfield on the late afternoon of March 31, 2005. Detective Black knew the area had a high volume of drug trafficking. He said that he saw defendant standing near a store at the intersection when he was approached by another man. The two engaged in a brief conversation and then defendant walked out of the detective's view while the other man waited. After approximately one minute, defendant returned. Detective Black observed defendant hand the man a small object and the man hand currency to defendant. The man placed the object in the left sleeve of his jacket and walked away.
Based upon his experience, Detective Black believed he had just witnessed a narcotics transaction, and he radioed a description of the man who left the scene to his backup team, who stopped the man a short distance away. They recovered a packet of narcotics from his jacket sleeve. Detective Black then radioed directions to arrest defendant.
Detective O'Brien testified that he stopped a man, later identified as John Modera, based upon the description he received from Detective Black. He searched the left sleeve of Modera's jacket and recovered three glassine envelopes of heroin and one bottle of cocaine from an outside pocket on the upper left arm. He also recovered a syringe from Modera's right front pants pocket. There was no contention that the syringe was linked in any way to defendant.
Detective O'Brien returned to the scene at Detective Black's direction and arrested defendant. When defendant was arrested, he did not have any drugs on his person but did have $520 in cash in various denominations. Detective O'Brien testified that it was not uncommon that someone involved in selling narcotics would not have any drugs on him but would secrete a "stash" in a nearby location.
Defendant elected not to testify and called only one witness, Detective Black. Detective Black testified that as part of the booking procedure, he counted the money that had been recovered from defendant and that it was composed entirely of twenty dollar bills, as opposed to a mixture of denominations.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)
THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant complains that portions of the prosecutor's summation called upon the jury to speculate, inferentially referred to defendant's decision not to testify, and argued to the jury from the prosecutor's personal experience. Defendant made no objection at the time of trial but now contends that these remarks were improper and denied him a fair trial.
A prosecutor must remember that his "primary duty... is not to obtain convictions but to see that justice is done...." State v. Acker, 265 N.J. Super. 351, 355 (App. Div.), certif. denied, 134 N.J. 485 (1993) (quoting State v. Marshall, 123 N.J. 1, 152 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993)). The obligation of the prosecutor, representing the State, "to play fair is as compelling as his responsibility to protect the public." Id. at 356 (quoting State v. Marks, 201 N.J. Super. 514, 535 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)).
However, not every remark in a summation that should not have been said will justify reversing a defendant's otherwise proper conviction. "To justify reversal the prosecutor's conduct must have been clearly and unmistakably improper, and the improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case." State v. Darrian, 255 N.J. Super. 435, 453 (App. Div.), certif. denied, 130 N.J. 13 (1992).
We have carefully reviewed the prosecutor's closing arguments and are satisfied that they contain no basis to reverse defendant's conviction. The prosecutor responded to comments and arguments put forth by defense counsel in his closing remarks. That the defense did not consider itself prejudiced in any way is evidenced by the fact that no objection to any of the prosecutor's remarks was interposed at the time.
We decline to remand this matter, as defendant requests in his second point, for further explication as to why defendant should be sentenced to an extended term. Defendant was subject to a mandatory extended term under N.J.S.A. 2C:43-6f because he had a prior conviction for distribution of a controlled dangerous substance. Indeed, the subject offense was committed only a few days after that conviction. Defendant's sentence, moreover, comports with the Brimage guidelines. State v. Brimage, 153 N.J. 1 (1998).
Finally, we perceive no merit to defendant's last contention, that his sentence is manifestly excessive. R. 2:11-3(e)(2).
Defendant's conviction and sentence are affirmed.