December 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SANTINO DREW, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-03-00279.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Lisa, Reisner and Sapp-Peterson.
Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) (count two); and third-degree distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three).*fn2 After merging count one with count three, Judge Gelade sentenced defendant to four years imprisonment with a three-year parole disqualifier. On count two, the judge imposed a three-year concurrent sentence.
Defendant argues on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS ON HOW TO EVALUATE AND ASSESS OPINION EVIDENCE ON DNA ANALYSIS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED BY THE ERRONEOUS ADMISSION OF CRIMINAL DISPOSITION AND CHARACTER EVIDENCE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED BY THE ADMISSION OF PREJUDICIAL HEARSAY EVIDENCE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR 1 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED BY THE ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTIONS ON THE LAW OF CONTROLLED DANGEROUS SUBSTANCES (Not Raised Below)
A. THE INSTRUCTION WAS SO VAGUE, CONFUSING AND CONTRADICTORY THAT A REASONABLE PERSON WAS INCAPABLE OF UNDERSTANDING AND APPLYING THE LAW.
B. THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AN ATTEMPT TO DISTRIBUTE CDS WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE.
THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
We reject these arguments and affirm.
On December 9, 2003, Lieutenant Paul Schuster of the New Brunswick Police Department was conducting surveillance in the area of Remsen Avenue and Seaman Street, which is located within 1000 feet of a school. Schuster was a thirty-one year veteran of the department, and was head of the Anticrime Unit since 1991. At about 8:10 p.m., with the aid of binoculars, Schuster observed a man later identified as Kenneth Coles drive up to the corner, get out of his car, and talk to an individual Schuster recognized as Thomas Baldwin. Five minutes later, defendant, whom Schuster also recognized, approached Coles and spoke to him briefly. Defendant looked around from side to side, and then reached into his mouth and pulled out a small packet containing what was later determined to be cocaine. As Coles was taking the packet from defendant, he dropped it in the snow. After Coles crouched down to pick it up, he handed defendant cash. Defendant walked to a nearby coffee shop, went inside briefly, and returned to Coles and handed him cash. Coles then talked briefly to Baldwin, after which he got into his car and drove away.
Schuster radioed other officers in the area, requesting that they intercept Coles' vehicle. Detective Paul Gould, Detective Chris Plowachu, and Officer Hector Lugo stopped Coles' vehicle. Plowachu informed Coles that he had been seen purchasing drugs. Coles voluntarily handed over the packet of cocaine. Coles was arrested.
Upon hearing of Coles' arrest, Schuster radioed another arrest unit. He provided the name, location and physical description of defendant. Officer James Bobadilla and Detective Mike Sutton sighted defendant at the designated location, followed him into a bar, and arrested him. Defendant had no drugs in his possession, but he did have $55 in cash.
Defendant argues that the State improperly adduced testimony from Lieutenant Schuster, who was not qualified as an expert in DNA analysis, to render expert opinions as to the use of DNA evidence in drug investigations. On redirect examination, the prosecutor asked Schuster whether the packet containing the cocaine was ever tested for DNA evidence, to which Schuster said "No." The prosecutor then asked why. Schuster said, "We don't typically test drugs for DNA. However, in this particular case, it fell in the snow and it was down in the snow and, as I described, Mr. Coles' digging it back out of this pile of snow."
Defendant argues that the State failed to provide a foundation demonstrating that Schuster qualified as an expert in DNA analysis, thus avoiding its discovery obligations pertaining to expert witnesses and preventing the defense from presenting an effective rebuttal. Defendant further argues that the judge should have provided legal guidance to the jury as to how to evaluate the expert opinion rendered by Schuster.
Because no objection to Schuster's testimony was raised at trial, our review is limited to the plain error standard, and we will not reverse on the ground of such error unless it was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
In our view, there was no error here, let alone plain error. Schuster did not render an opinion. He testified to a fact personally known to him, namely that his department does not typically test drugs for DNA. He further testified to another fact, namely the chain of events involving the drug packet, which he personally observed go through several sets of hands and fall into the snow. Schuster's testimony was probative because the defense was misidentification. His testimony rebutted any inference the jury might draw that an absence of DNA testing undermined the State's proof that the cocaine packet seized from Coles originated with defendant. This factual testimony merely informed the jury of the reasons why DNA testing was not sought. Schuster gave no expert opinion in the field of DNA analysis.
To the extent that Schuster's testimony could be construed as an opinion that DNA analysis would likely have been unproductive in this case, such an opinion fell within the protection of N.J.R.E. 701, which "permits lay persons, including police officers, to express their opinions in matters of common knowledge and observations if those opinions can assist the court in determining a fact in issue." State v. Locurto, 157 N.J. 463, 472 (1999). "Pursuant to this rule, '[c]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. Kittrell, 279 N.J. Super. 225, 235 (App. Div. 1995) (quoting State v. LaBrutto, 114 N.J. 187, 198 (1989)). Applying these principles, courts have allowed police officer testimony, for example, regarding point of impact at the scene of an accident, LaBrutto, supra, 114 N.J. at 199, footprint comparison, State v. Johnson, 120 N.J. 263, 293-95 (1990), high crime incidents in a particular neighborhood, Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980), voice identification, State v. Perez, 150 N.J. Super. 166, 170 (App. Div.), certif. denied, 75 N.J. 542 (1977), and an opinion that an individual was under the influence of drugs, State v. Jackson, 124 N.J. Super. 1, 4 (App. Div.), certif. denied, 63 N.J. 553 (1973).
We next consider defendant's argument that Schuster's testimony that he set up a drug surveillance operation and knew defendant, and Bobadilla's testimony that he also knew defendant, constituted improper criminal disposition and character evidence in violation of N.J.R.E. 404(b). Schuster described the function of the Anticrime Unit and described the neighborhood of this surveillance as a high crime area. When describing the individual who walked up to Coles and spoke to him, Schuster said, "I recognized this individual as Santino Drew." He was then asked, "When you say you recognized him, did you know Mr. Drew?" Schuster responded in the affirmative. Bobadilla testified that he received a communication from Schuster, relaying the description and name of Drew. He was then asked whether he knew Drew, to which he responded in the affirmative. In her summation, the prosecutor referred back to the testimony of these officers, reminding the jury that they knew defendant.
This evidence was, of course, highly probative as bolstering the reliability of defendant's identification, in light of his defense of misidentification. Again, no objection was made at trial to the testimony of either officer. Therefore, the judge was given no opportunity to give a limiting instruction or to either preclude the testimony or direct that it be ameliorated in some fashion, by suggesting, for example, that the officers merely knew Drew from the neighborhood.
Defendant argues that the evidence likely supported an inference that, because this surveillance was being conducted in a high crime neighborhood and the officers knew Drew, they must have known Drew because he was previously involved in criminal activity. We do not agree. The testimony of both officers was neutral on the subject. Schuster also testified that he recognized Baldwin. The prosecutor made no suggestion that the officers knew defendant because of any prior criminal involvement. In the overall context of this trial, any error on this point did not have the clear capacity to produce an unjust result and does not raise in our minds a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached.
Defendant argues that the trial court improperly admitted Schuster's testimony regarding Coles' arrest and that this constituted a violation of the rule laid down in State v. Bankston, 63 N.J. 263 (1973). Defendant refers to the following testimony by Schuster:
Q: And did you later learn whether [Coles's] car in fact had been stopped?
Q: And did you later learn what had occurred when the car was stopped?
A: Yes, the officers recovered one packet of cocaine from Mr. Coles.
In Bankston, supra, 63 N.J. at 266-71, the Court ruled inadmissible a detective's testimony that the defendant was apprehended based upon information received from an unidentified informer. The Court explained that when an officer specifically repeats what another person said regarding a crime by the defendant, such testimony violates the hearsay rule and the defendant's Sixth Amendment right of confrontation. Id. at 268-69. The Court further determined that a specific hearsay statement is not required in order to create an impermissible inference of guilt. Id. at 271. The Court concluded that "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Ibid.
"The principle distilled from Bankston and its progeny is that testimony relating inculpatory information supplied by a co-defendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights." State v. Taylor, 350 N.J. Super. 20, 33-34 (App. Div.), certif. denied, 174 N.J. 190 (2002) (holding inadmissible police officer's testimony that he received certain information from "other people" that defendant was the person responsible for stabbing the victim); State v. Farthing, 331 N.J. Super. 58, 74-76 (App. Div.), certif. denied, 165 N.J. 530 (2000) (holding inadmissible investigators' testimony that the defendant's non-testifying co-defendants had implicated her in a robbery and murder).
Unlike in the those cases, Officer Gould, who arrested Coles along with Officer Plowucha and Patrolman Lugo, testified and was subject to cross-examination. Thus, any constitutional concerns raised by Schuster's testimony were eliminated by the defense's ability to cross-examine Gould regarding the arrest. Any error was clearly harmless.
We next consider defendant's argument that the jury instruction regarding distribution was so vague, confusing and contradictory that a reasonable person was incapable of understanding and applying the law. Defendant refers to the following portion of the charge:
In regard to the second element, to distribute means the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance. It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value.
Defendant argues that, according to this instruction, he could be found guilty of distribution without actually distributing anything at all. And, according to defendant, even if this instruction is deemed satisfactory, the judge should have at least instructed the jury on the legal definition of criminal attempt. However, in this case, attempted distribution was not implicated. The State's case involved actual distribution from defendant to Coles. Indeed, the distributed substance was seized from Coles. Thus, in the context of this trial, any passing reference by the court to "attempt" was irrelevant and did not have the potential of confusing or misleading the jury. The instruction given mirrored the language in N.J.S.A. 2C:35-2 and the long-standing model jury charge on distribution. See Model Jury Charge (Criminal), § 35 "Distribution of a Controlled Dangerous Substance" (1988). We find no error in the instruction, let alone plain error.
Finally, defendant argues that his sentence was excessive. We are satisfied from our review of the record that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, the judge did not apply incorrectly the sentencing guidelines enunciated in the Criminal Code, and the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).