January 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PERCY LEE ADAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-01043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Parrillo and Messano.
Tried by a jury, defendant Percy Lee Adams was convicted of two counts of possession of drugs (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1); possession of drugs with the intent to distribute, N.J.S.A. 2C:35-3(a)(1) and N.J.S.A. 2C:35-5(b)(3); and possession of drugs in a school zone with the intent to distribute, N.J.S.A. 2C:35-7, all third-degree offenses. For purposes of sentencing, all the non-school-zone counts were merged into the two school zone counts, for which the judge imposed two extended concurrent eight-year terms with four-year periods of parole ineligibility pursuant to both N.J.S.A. 2C:43-7(c) and N.J.S.A. 2C:43-6(f). Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on June 10, 2005, New Brunswick Detective Mark Pappas was alone on routine patrol in an unmarked car and in plain clothes. Around 11:00 a.m., he arrived at the corner of Lee Avenue and Baldwin Street where he pulled to the curb to observe the area and read reports. While parked in his vehicle, Pappas saw defendant, whom he recognized,*fn1 approach Harry's Newsstand, a business on Lee Avenue approximately 150 feet from where Pappas was parked. Defendant, a light-skinned black male with long dreadlocks and wearing a white T-shirt and blue jean shorts, briefly conversed with some people and then waved another man to join him. After a short time, defendant walked across the street to a parked red van and retrieved, from under the rear bumper, what appeared to be a black, magnetic hide-a-key box, commonly used to secure a drug stash. Looking up and down the street, defendant opened the box and then placed the box back under the rear bumper. At this point, Pappas decided to move closer.
A Spanish male on a bicycle approached defendant and the two men continued along Lee Avenue towards Seaman Street. As Pappas drove past the two men, defendant turned around and began walking in the opposite direction, until he was out of Pappas' sight. Pappas then made a u-turn, parked behind the red van, and retrieved the hide-a-key box. He opened the box and discovered six packets of cocaine and one packet of heroin inside. The red van was parked within 1000 feet of Redshaw School. A check of its license plate revealed that the van did not belong to defendant.
Neither defendant nor the Spanish male were located at or near the scene and no arrests were made that day. About one month later, upon learning that police were looking for him, defendant voluntarily appeared at New Brunswick police headquarters.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE DISTRACTING AND INAPPROPRIATE BEHAVIOR OF POLICE OFFICERS PRESENT IN THE COURTROOM DURING TRIAL.
II. THE REFUSAL OF THE TRIAL COURT TO GRANT [DEFENDANT'S] REQUEST FOR A JURY INSTRUCTION ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION DENIED [DEFENDANT] DUE PROCESS OF LAW AND A FAIR TRIAL.
III. THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] MOTION FOR JUDGMENT OF ACQUITTAL.
IV. THE IMPOSITION OF A MANDATORY EXTENDED TERM SENTENCE OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
In a supplemental brief, defendant pro se raises these additional issues:
I. THE PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO REQUEST A WADE HEARING TO CHALLENGE THE IN-COURT IDENTIFICATION OF DETECTIVE MARK PAPPAS.
II. THE TRIAL COURT DENIED THE APPELLANT HIS RIGHT TO A FAIR TRIAL BY FAILING TO CHARGE THE JURY ON THE IDENTIFICATION EVIDENCE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I ¶ 9.
III. THE VERDICTS WERE SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
After considering these contentions in light of the record, the applicable law, and the arguments of counsel and defendant pro se, we affirm for the following reasons.
After Pappas, the State's first witness, testified, defense counsel moved for a mistrial, alleging inappropriate behavior of several police officers present in the courtroom. Specifically, defense counsel claimed that a few of defendant's family members observed the officers giving Pappas the thumbs up as he testified, and that one of the officers focused a great deal of attention on the jury. Additionally, defense counsel claimed that one of the officers dropped his police radio, causing the jury to look in the direction of the officers. And, finally, counsel said when she turned to see the officers, they smirked at her. The prosecutor represented that he did not observe any such behavior.
The trial judge denied the application, rejecting the defense's claims, most of which were based on second-hand information, as baseless and contrary to her own first-hand observations. The judge found specifically:
And insofar as any reported incidents concerning radios or anything that would have disrupted the dialogue or -- between the defense attorney and the witness or any behaviors or conduct that would impact or be viewable and prejudicial to this jury, I saw none of that.
And I am ever vigilant in terms of my review of the jury to see and to make sure that jurors are alert and -- and are engaged in the process of listening. And, quite frankly, saw no conduct that would rise to the level of, number one, of what has been indicated nor clearly, number two, with respect to declaring a mistrial in this case.
I strongly disagree with what has been characterized as behaviors so blatant and so in front of this jury as to create the atmosphere of warranting and requiring a mistrial.
I found [no disruptive behavior] to have happened.
We, of course, defer to the factual findings and credibility determinations of the trial judge who was in a unique position to observe the challenged events at trial. State v. Locurto, 157 N.J. 463 (1999). We discern no warrant for interference with those findings. Consequently, we find no error in the court's denial of defendant's mistrial motion.
At the close of evidence, defendant asked for a "full" identification charge including, presumably, the cross-racial feature. The State objected based on the fact that Pappas previously knew defendant. The trial judge denied defendant's request, explaining that the model jury charges on identification apply where the perpetrator is unknown to the witness. She reasoned further:
[T]he instant case is a circumstance wherein the eye witness to the alleged commission of the crime is an individual who has prior knowledge of the defendant in this case. And that was brought up early on pretrial insofar as the cautionary instruction that the prosecutor gave to the witness about not going into the circumstances that underlie the witness' knowledge of this defendant because obviously the prejudicial value or the prejudice that would occur was such that the jury could not hear that information. And, therefore, the witness was advised to only indicate that his knowledge base was knowing the defendant from the community.
The model charge goes into various factors that a jury may consider in analyzing the witness' identification of an individual as that individual observed the perpetrator. And I find that to give that charge would serve to confuse the issue.
Clearly identification has been raised by the defense. And I'm satisfied that the jury must be told and will be told that the burden of proving the identity of the person who did commit the crimes is on the State. And whether the State has met its burden, that burden being beyond a reasonable doubt, that it was, indeed, Percy Adams will eventually rest upon whether or not this jury believes that this witness is credible. And they are instructed as to their use of credibility and believability of the witness and . . . the factors to be considered in that regard as well as the observations of the witness, which are certainly the subject of argument for counsel.
So I'm satisfied that it would not be appropriate to give the identification model jury charge under these circumstances for the reasons just given.
Consequently, the judge charged the jury specifically that "the State must show beyond a reasonable doubt that this defendant is the person who committed the crime." Indeed, the judge both emphasized and distinguished the issue of identity from the other elements of the offense:
For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that [defendant] is the person who committed it.
Under the circumstances, we perceive no error in the court's jury charge. Contrary to defendant's suggestion, there was ample evidence that Pappas knew and recognized defendant, and, to avoid any prejudice to defendant, that evidence was marginalized and neutralized when presented to the jury. The fact remains, however, the jury was aware that Pappas recognized defendant, and, thus, there was no need for an identification charge beyond that provided the jury. Plainly, from the instructions given, the obligation was that of the jury to determine whether defendant was the person who removed the hide-a-key box from the bumper of the van and then replaced the box.
Defendant next contends the judge erred in denying his motion for judgment of acquittal at the close of the State's case. In support of this argument, defendant relies principally on the fact that Pappas' identification was unreliable. However, as previously noted, the reliability of Pappas' identification was determined by a properly charged jury, and we discern no reason to disturb that finding. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Thus, defendant having been observed handling the magnetized black box that, only a short time later, was found to have contained both heroin and cocaine, the totality of the evidence clearly would enable a reasonable jury to find him guilty beyond a reasonable doubt of all the drug offenses charged. State v. Reyes, 50 N.J. 454, 459 (1967).
Defendant also claims the mandatory extended term of eight years with a four-year parole bar is excessive. We disagree.
Indisputably, based on his prior drug convictions, defendant was eligible for a mandatory extended term sentence under N.J.S.A. 2C:43-6(f), which he, in fact, received. The eight year term with a four-year parole bar properly reflects the weight of the aggravating factors considered by the court, namely the risk that defendant would commit another offense and the need to deter, N.J.S.A. 2C:44-1(a)(3), (9), and the nonexistence of any mitigating circumstances. Although defendant argues the court should have taken into account his "efforts at rehabilitation," we fail to see the applicability of this factor under present circumstances where defendant's promising starts were being undertaken simultaneous with his attempts at drug distribution.
We have considered the remaining issues, which defendant raises pro se, and find them to be either duplicative of issues we have already addressed and rejected, and, otherwise, of insufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), or to the extent they allege ineffective assistance of counsel, more appropriately resolved on a petition for post conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).