January 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BIENVENIDO CONTRERAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Wefing and LeWinn.
Tried to a jury, defendant Bienvenido Contreras was found guilty of third-degree possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); second-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(2); and third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute within one thousand feet of school property, in violation of N.J.S.A. 2C:35-7. At sentencing on December 2, 2005, the trial court merged the possession conviction and the school zone conviction into the conviction for possession with intent to distribute, and sentenced defendant to four years in prison with a three-year period of parole ineligibility.
Defendant has appealed his convictions. Having reviewed the record in light of the contentions raised, we affirm.
On April 3, 2004, members of the Plainfield Police Department conducted surveillance of a second-floor apartment at 305 Madison Avenue. This apartment was leased to Ramona Acevedo, who was indicted and tried jointly with defendant.*fn1
Over a period of approximately one hour, Detective Romeo Simeon observed several individuals approach that location, both on foot and by automobile, ring the doorbell or knock and then be admitted. Each individual was also observed leaving the premises within a few minutes of arriving there. Simeon identified defendant and Acevedo as the individuals who took turns opening the door to admit the arriving individuals. Simeon testified that immediately following this period of surveillance, he and other officers conducted a raid of the second-floor apartment.
Lt. Brian Newman entered the apartment with Simeon. As Newman entered, he observed Acevedo toss a black pipe and a tin can out the bedroom window, landing on the roof of the building's first floor. Newman climbed out the bedroom window to retrieve these items, and discovered a quantity of cocaine and some currency in the can. Several other individuals were present in the apartment, some of whom were found to have cocaine in their possession; the officers also found approximately eighteen hundred dollars in cash. When the police entered Acevedo's apartment, defendant was seated at the kitchen table.
On appeal, defendant raises the following arguments:
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
A. THE STATE FAILED TO MEET ITS BURDEN OF PROOF
B. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
IT WAS PLAIN ERROR TO PERMIT THE EXPERT TO TESTIFY (NOT RAISED BELOW)
FUNDAMENTAL FAIRNESS DEMANDS THAT DEFENDANT'S GUILTY VERDICT BE REVERSED.
Defendant contends that the trial judge erred in denying his motion for a judgment of acquittal because "defendant's presence was about all the evidence the State had to offer." However, we concur with the trial court's assessment of the State's proofs in denying the motion:
[T]here is a very significant factor that the State is alleging, that Mr. Contreras is involved. They are alleging that he is, in fact, the gatekeeper, or . . . the lookout who permit[s], because of his behavior, these drug transactions to take place upstairs. In the span of one hour, seven or eight individuals by car and by foot knock on that door. They are met by Mr. Contreras on five or six occasions, and he then permits them to enter.
They enter for a one to two minute span. Thereafter, they leave in a very nervous and agitated manner, in a very suspicious manner, looking over their shoulder. They quicken their pace so that they can leave the premises as quickly as possible, meaning that something has happened in that one to two minutes that's created this anxiety in their person.
The Court believes that that testimony is such that the State can argue, and possibly argue effectively that, in fact, Mr. Contreras was the gatekeeper to permit those drug transactions to take place.
And it is for that reason that the State may argue that although the drugs were nowhere to be found on Mr. Contreras in the apartment itself, nor the money found near Mr. Contreras, that if, giving all the inferences to the State, that issue becomes one for the jury.
In considering a motion for judgment of acquittal pursuant to Rule 3:18, a trial judge must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). "This test governs not only the trial judge's consideration of the motion, but also appellate review of his ruling." State v. Moffa, 42 N.J. 258, 263 (1964).
N.J.S.A. 2C:35-10(a)(1) renders it unlawful for "any person, knowingly or purposely, to . . . possess, actually or constructively, a controlled dangerous substance . . . ." Mere presence may not be sufficient to infer possession. State v. $36,560.00, 289 N.J. Super. 237, 261 (App. Div. 1996), certif. denied, 147 N.J. 579 (1997). However, "'other circumstances . . . [may] permit such an inference to be drawn.'" Ibid. (quoting State v. Brown, 80 N.J. 587, 593 (1997)).
Constructive possession may be found to exist when a defendant is present at a location where contraband is located, has knowledge of its presence and circumstances are such that it is likely defendant is involved in a criminal enterprise. State v. El Moghrabi, 341 N.J. Super. 354, 364-68 (App. Div.), certif. denied, 169 N.J. 610 (2001). "By definition, proof of constructive possession relies almost exclusively upon circumstantial evidence." State v. $36,560.00, supra, 289 N.J. Super. at 260. There, we found sufficient evidence to support a finding of constructive possession where the defendant was present during drug transactions conducted by the co-defendant and frequently slept in the apartment with the co-defendant where the drugs were located. Id. at 262.
Based on the evidence, we conclude that a jury could reasonably have found that defendant not only knew of the ongoing criminal activity in Acevedo's apartment, but was in fact an active participant in the enterprise. Notwithstanding the absence of cocaine on his person, defendant's role as "gatekeeper" or "lookout," as the trial court found, "permit[ted] those drug transactions to take place."
Defendant's argument that the verdict was against the weight of the evidence is raised as plain error and consists of his argument that the "totality of the circumstances rendered the guilty verdict unfair and illegal." This argument lacks sufficient merit to warrant discussion, for the reasons set forth above. R. 2:11-3(e)(2).
We turn next to defendant's argument, also raised as plain error, that the trial court erred in permitting Detective Martin Lynch, of the Union County Prosecutor's Office, to testify as an expert in the identification, packaging, use, sale and distribution of narcotics. During his voir dire, Lynch described his extensive experience and training in narcotics investigations. At the conclusion of that voir dire, defense counsel stated, "No objection."
"[T]he opinion of a duly-qualified expert may be presented to a jury if it will genuinely assist the jury in comprehending the evidence and determining issues of fact." State v. Odom, 116 N.J. 65, 70 (1989). Here, the State provided Lynch with a "hypothetical question . . . carefully phrased to refer only to the testimony and evidence adduced[,]" id. at 81, and, based on that evidence, Lynch opined that the cocaine found in Acevedo's apartment had been possessed with the intent to distribute. We conclude that this testimony did not constitute an impermissible intrusion upon the jury's function, as defendant contends.
Finally, we reject as without merit, defendant's argument that "fundamental fairness" requires reversal of his convictions. We find no "arbitrary, unfair, [or] egregious action at the hands of the State," to warrant invocation of this doctrine. State v. Maisonet, 166 N.J. 9, 21 (2001).