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State v. Kirk

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELSY KIRK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-968.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges R. B. Coleman, Sabatino, and Simonelli.

Defendant Kelsy Kirk appeals from the judgment of conviction dated December 5, 2005, and entered following a trial by jury between July 12 through 26, 2005, in the Law Division, Middlesex County.

The jury found defendant guilty of third-degree possession of the CDS, cocaine, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of CDS, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1); fourth-degree possession of the CDS, over fifty grams of marijuana, contrary to N.J.S.A. 2C:35-10a(3); third-degree possession with intent to distribute CDS, more than one ounce of marijuana, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(11); fourth-degree possession of drug paraphernalia with intent to distribute, contrary to N.J.S.A. 2C:36-3. We affirm the judgment of conviction and sentence.

The State applied for, and was granted, an extended-term sentencing pursuant to N.J.S.A. 2C:43-6f based upon defendant's prior CDS related convictions. Defendant was sentenced to an aggregate custodial term of ten years imprisonment with a three year period of parole ineligibility. This appeal ensued.

The facts established at trial include the following. On April 4, 2002, Sergeant John Quick of the New Brunswick Police Department conducted a surveillance operation on defendant's apartment located at 188 Rutgers Street as a result of a confidential informant's report that there was narcotic activity at this address. To corroborate this information, the previous week police had conducted a controlled drug purchase from defendant in which a confidential informant participated. Additionally, more than one citizen informant had contacted the police regarding defendant's narcotic activity.

Sergeant Quick began his surveillance at approximately 10:00 a.m. and set up the operation in a vacant basement apartment with video equipment to monitor the hallways and exterior of the building. This particular operation was set up specifically to monitor defendant's residence, apartment B5. At approximately 11:30 a.m., Quick observed defendant exit apartment B5 and leave the building. Quick testified that he reported this to his superior, Lieutenant Schuster, with the understanding that Schuster was going to apply for a search warrant. Quick then left the building. Meanwhile, Schuster applied for, and was granted, a search warrant for apartment B5. Quick returned to the surveillance location in the apartment building later that afternoon at approximately 2:00 p.m. At 3:00 p.m. Quick observed defendant return to apartment B5. Defendant did not appear to be carrying anything. Defendant left the apartment approximately five minutes later and was soon after arrested by a back-up unit. No drugs or money were found on defendant's person.

Quick and the back-up unit officers executed the search warrant on apartment B5. Six small, red ziplock bags of marijuana were found in the living room. Throughout the apartment, numerous discarded plastic bags were found that had the corners cut off of them.*fn1 A shoebox containing a gram scale and two identification cards with defendant's photograph, but in an alias name, were also found. Various items belonging to defendant were found about the apartment, including clothing, newspaper clippings, bills and invoices. In the freezer, a brown paper bag was retrieved containing approximately five ounces of cocaine. The bag of cocaine was warm to the touch and had no frost or ice on it. Also in the freezer, $11,000 in cash was found in two ice-encrusted Eggo boxes, along with twenty-three ice encrusted plastic bags of marijuana. A loaded Glock nine millimeter handgun was found underneath the kitchen sink, and two bulletproof vests, similar to police issue, were found elsewhere.

In total, 5.23 ounces of cocaine, 3.2 ounces of marijuana, and $12,027 in cash were seized from apartment B5. Although the apartment was leased to Maria Medina, the landlord had given Medina a second set of keys and was introduced to defendant by Medina. Defendant was also known by other residents to reside in apartment B5 with Medina.

Defendant raises the following issues on appeal:

I. THE AFFIDAVIT OF LT. SCHUSTER FAILED TO PROVIDE PROBABLE CAUSE TO BELIEVE THAT EITHER DRUGS OR RELATED PARAPHERNALIA WOULD BE FOUND AT 188 RUTGERS STREET, APT. B-5, NEW BRUNSWICK ON APRIL 4, 2002.

II. THE PREJUDICIAL EFFECT OF OTHER CRIMES EVIDENCE ADMITTED THROUGH THE TESTIMONY OF SEVERAL WITNESSES OUTWEIGHED ANY PROBATIVE VALUE.

III. DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY THAT ON APRIL 4, 2002, SGT. QUICK WAS INVESTIGATING DEFENDANT.

IV. THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT'S IDENTITY WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.

V. THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT DEFENDANT POSSESSED COCAINE AND MARIJUANA WITH THE INTENT TO DISTRIBUTE AND THE GUILTY VERDICT ON THOSE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

VI. THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

VII. THE COURT ERRONEOUSLY ORDERED THAT DEFENDANT'S SENTENCE FOR COUNT SIX, POSSESSION WITH INTENT TO DISTRIBUTE C.D.S., NAMELY MARIJUANA, TO RUN CONSECUTIVE TO THE SENTENCE FOR COUNT THREE, POSSESSION WITH INTENT TO DISTRIBUTE C.D.S., NAMELY COCAINE.

VIII. THE TRIAL COURT ERRONEOUSLY IMPOSED AN IMPROPER SENTENCE AS TO COUNT SIX AND THE JUDGMENT OF CONVICTION ERRONEOUSLY STATES THE FINAL CHARGES AND DEGREE OF THE OFFENSE AS TO COUNT ELEVEN AND AS TO COUNT SIX

We discuss each issue in turn.

I.

Defendant alleges that the affidavit submitted on April 4, 2002, by Lt. Schuster to the municipal court judge, in application for a search warrant of defendant's residence at 188 Rutgers Street failed to establish probable cause and was, therefore, invalid. The State counters that the affidavit provided ample support for probable cause to search apartment B5 for CDS. We are persuaded by the State's evidence.

The following facts were submitted by Schuster in support of probable cause for the warrant. The police department had been investigating defendant for several months. The department had received information from more than one confidential source that defendant was selling cocaine at several locations and that he stored the drugs where he lived, at 188 Rutgers Street. Police contacted a past reliable informant who was familiar with defendant and confirmed that defendant was selling cocaine and keeping it at his residence at 188 Rutgers Street. Furthermore, cocaine had been purchased from defendant by a confidential informant working with the police in a "controlled purchase" within the prior week. The informant called defendant to request drugs, and the police observed defendant leave 188 Rutgers Street to meet with the informant. Defendant did not stop anywhere en route to meet with the informant-buyer. The police observed defendant meet with the informant, who had been previously searched and given cash to buy cocaine. Afterwards the informant handed over the drugs defendant had sold to him.

Defendant challenged the validity of the search warrant prior to his trial. The motion judge reviewed the contents of Schuster's affidavit and found it to be adequately based upon a four-step process which included information from a citizen informant, information from a past reliable source, a police investigation, and a controlled drug buy. Under the totality of the circumstances doctrine, probable cause can be established by these four sources. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1980); State v. Jones, 179 N.J. 377, 388 (2004).

The veracity of tips from known "citizen witnesses" is presumed, especially when they are corroborated by confidential, criminal informants. State v. Stovall, 170 N.J. 346, 362 (2002); State v Smith, 155 N.J. 83, 97 (1998). A tip also can be "bolstered by a corroborative investigation," or when the police use it to set up a controlled drug purchase. Smith, supra, 155 N.J. at 95; Jones, supra, 179 N.J. at 390. Another important consideration is the experience of the officer submitting the supporting affidavit for the search warrant. Jones, supra, 179 N.J. at 390. Here, Lieutenant Schuster has over twenty-eight years of experience in law enforcement and has participated in more than 5,000 narcotic investigations. The affidavit in support of the warrant contained clear and convincing evidence to establish probable cause.

II.

Defendant contends, for the first time, that other crimes evidence introduced by way of testimony prejudiced his right to a fair trial. We disagree. The following is the basis of defendant's claim.

First, Sergeant Quick testified that he knew what defendant looked like prior to April 4, 2002. He also stated that he observed defendant enter and exit apartment B5 which he had under surveillance on April 4, 2002, via six monitors. When questioned as to how the detective knew the person he observed enter and exit the apartment was defendant, Quick replied "I know Kelsy Kirk." To put this testimony into the proper context, Sergeant Quick was establishing that he could identify the person observed on the video monitors as the defendant because he was familiar with defendant. Quick did not elaborate in any way about how he knew defendant. The day after Quick's testimony, defense counsel raised the issue of Sergeant Quick's comments. Counsel did not object to the admissibility of the testimony; rather, counsel requested that the court give a limiting instruction to the jurors that they not draw an adverse inference from the fact that Quick knew defendant prior to the surveillance operation. The judge complied with counsel's request and gave the jury the following curative instruction:

[Y]ou heard testimony from this witness, Sergeant Quick that he knew Kelsy Kirk before this incident. Just like we talked about during voir dire, many of you know officers or people who know officers, people knowing officers or officers knowing us, it's not necessarily a nefarious inference, and you are to draw no adverse inference from this knowledge.

Second, defendant claims that the testimony of Muhammed Abdou, owner of the building at 188 Rutgers Street, also amounted to other crimes evidence. Abdou testified that on one occasion he saw defendant carrying a large bag of money in the building. Abdou further testified that he became concerned because "the building had a "notorious reputation" as a "really bad building," and it was "front page news." Abdou testified that he went to the police department and spoke with Sergeant Quick about what he had observed. With no prompting from Abdou, Quick described defendant and defendant's car to Abdou to verify the subject they were discussing. Quick then told Abdou "not to worry about it."

Defense counsel objected to Mr. Abdou's testimony. The judge instructed Mr. Abdou not to testify about what others had said to him, and then instructed the jury on the definition and inadmissibility of hearsay, and that they should not consider any hearsay statement that Abdou made. The judge then asked defense counsel if there were any other requests and counsel replied that there were none. During the trial, defense counsel objected three times to Abdou's testimony on hearsay grounds and the judge sustained each objection. None of the testimony given at trial pertained to other crimes, and defense counsel made no objection on the grounds of other crimes evidence. The judge gave defense counsel the opportunity to request further jury instruction on this issue and counsel declined to do so.

Pursuant to Rule 1:7-2, the objecting party "shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor." Id.; see also State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996).

Here, defendant failed to lodge an objection on the grounds of other crimes evidence or, alternatively, to request a curative instruction from the trial court despite his opportunity to do so. There was no abuse of discretion in the trial judge's rulings as no other crimes evidence was proffered. Further, no plain error occurred by the omission of a curative instruction absent an objection and request by defense counsel.

Cordero, supra, 293 N.J. Super. at 442 (holding failure to object deprives the trial court of opportunity to remedy the omitted instruction).

III.

Defendant next contends that his Sixth Amendment right to confront witnesses against him was violated when Sergeant Quick testified regarding whom the police department was investigating in their surveillance operation. Specifically, defendant claims the following exchange amounted to hearsay testimony which led to the "inescapable inference" that information had been received implicating defendant in a crime from a person he could not cross-examine in court:

Q: Now, on that day were you investigating Maria Medina?

A: No.

Q: Who were you investigating?

A: Kelsey - - [sic]

Defense counsel objected to this line of questioning and Sergeant Quick was not permitted to finish answering the question. Following a sidebar conference, in which the court cautioned the prosecutor against pursuing this line of questioning, the prosecution withdrew the question.

Our Supreme Court has instructed that the hearsay rule is not violated when a testifying officer merely explains why he approached a suspect or investigated a particular crime scene "by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973). This testimony is admissible to show that "the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. "However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." Ibid. The former kind of testimony will violate the defendant's Sixth Amendment right to confront a witness against him. Ibid.

Pursuant to Rule 2:10-2, a reviewing panel shall disregard any error or omission of a trial court unless the error "is of such a nature as to have been clearly capable of producing an unjust result." Ibid.

Here, defendant contends that an "inescapable inference" was made that the police were investigating defendant based solely on an informant's tip. Ibid. In Bankston, "the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told the officers that defendant was committing a crime." Ibid. However, the evidence in the record, here, does not support defendant's claim. First, the State established early in the proceedings that they were investigating the activity surrounding apartment B5 based on information provided from more than one source: a reliable confidential source; citizen informants; the owner of the building who was available for cross-examination; and a police controlled drug purchase from defendant. Second, even if the jury understood Sergeant Quick's partial answer to mean unequivocally "we were investigating defendant, and only defendant," Sergeant Quick did not indicate this was the case due to an informant's incriminating statement. Indeed, no hearsay statement was mentioned or referred to in Sergeant Quick's testimony. Hence, any inference that may possibly be made does not rise to the level of "inescapable inference" or "logical implication" that is discussed in Bankston.

IV.

Defendant next contends that his right to due process was violated when the judge denied defendant's motion to compel disclosure of the identity of the confidential informant who participated in the "controlled drug purchase." Defendant claims that the informant who assisted in the "controlled drug purchase" had more than a marginal role in his conviction. The State counters that the informant played only a marginal role in the investigation and that the State relied on other evidence in addition to the drug transaction to build its case against defendant, namely, citizen informants and street surveillance. We agree with the State.

Generally, courts will deny identity disclosure of an informant absent a strong showing of need by defendant. State v. Milligan, 71 N.J. 373, 387-389 (1976). Moreover, compelled disclosure is denied where the informer has only a marginal role in the events leading up to the arrest, such as "providing information or tips to the police or participating in the preliminary stage of a criminal investigation." Ibid. (internal citations omitted). New Jersey recognizes in N.J.R.E. 516 the need to protect the identity of informants.

We use a balancing test to weigh "the public interest in protecting the flow of information against the individual's right to prepare his defense." Milligan, supra, 71 N.J. at 384. Whether an informant's identity must be disclosed is case specific and requires consideration of factors such as the crime alleged, possible defenses of the accused, and the potential significance of the informer's testimony. Ibid. Here, the informant provided information to the police and participated in a "controlled drug purchase" as a basis of obtaining the search warrant, but he was not a participant in the crime defendant was actually prosecuted for, possession of CDS with intent to distribute.

Our Supreme Court has distinguished between participants who provide a basis for probable cause, and those who cooperate in the actual crime which a defendant is charged. State v. Brown, 170 N.J. 138 (2001). In Brown, the Court stated that an informant who cooperates with police in the role of a controlled buyer, that role "essentially confer[s] immunity upon the informant." Id. at 149-50. Even absent this immunity, defendant has failed to demonstrate a significant need to learn the identity of the informant.

V.

Defendant contends the State failed to meet its burden to show drug possession and distribution as to the ownership of all of the CDS found in apartment B5. Namely, defendant attempts to differentiate between containers of drugs in the freezer that were ice encrusted - circumstantial evidence more likely to prove recent contact and those that were not so encrusted. Our Supreme Court has instructed:

[W]e must view the State's evidence in its entirety and give the State the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute. [State v. Spivey, 179 N.J. 229, 236 (2004)(internal citations omitted).]

Defendant claims that the evidence does not connect him to all the various CDS stashes found by the detectives at 188 Rutgers Street. However, viewing the evidence in its entirety, we conclude it does. Despite defendant's attempt to distance himself from possession of the "inventory" in apartment B5, it was established at trial that he did reside at this address. This critical evidence was based on witness testimony, police reports, and physical evidence. Evidence was also proffered to show that defendant sold drugs at two public locations, but that he stored his drug supply at his residence. This evidence was grounded on information from citizen informants, a confidential police source, and direct undercover police surveillance.

As to defendant's possession of the CDS seized from the apartment, a person does not abandon legal possession of the items in his home every time he exits the front door Spivey, supra, 179 N.J. at 237. A person is in constructive possession of an object even if he does not have "physical or manual control" of that object, when "the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." Id. at 236-237 (citing State v. Schmidt, 110 N.J. 258, 270 (1988)). For the foregoing reasons, the State met its burden of proof in establishing beyond a reasonable doubt as to defendant's CDS possession with intent to distribute.

VI.

Defendant next makes a cumulative error argument. Pursuant to that argument, where the trial errors are great, or in their aggregate have caused the trial to be unfair, "our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). However, defendant has failed to demonstrate a single plausible trial error occurred. Therefore, this claim does not warrant further discussion. R. 2:11-3 (e)(1)(E).

VII.

Defendant next contends that the chronology of his past convictions does not support an extended term sentence under the Drug Act, N.J.S.A. 2C:43-6(f). Defendant fails to apprehend that the Drug Act "requires the imposition of an extended term sentence for defendants previously convicted 'at any time' of [CDS] violations of N.J.S.A. 2C:35-5, if the prosecutor requests." State v. Hill, 327 N.J. Super. 33, 41 (App. Div. 1999). "Thus, the plain language of N.J.S.A. 2C:43-6(f) does not limit, either expressly or impliedly, the chronological sequence of convictions subject of this extended term provision." Ibid.

Defendant further contends that his sentences should run concurrently rather than consecutively. Our Supreme Court has instructed that when a trial court is to determine whether sentences for multiple offenses should be served concurrently or consecutively the court "should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing." State v. Yarbough, 100 N.J. 627, 630 (1985) (referring to the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4)). In Yarbough, the Court announced guidelines for determining when consecutive sentences may appropriately be imposed for multiple offenses, id. at 644, and the trial court considered and applied those guidelines. "An appellate court may not substitute its judgment for that of the trial court." State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)).

In the case at bar, defendant's sentence is consistent with the Yarbough factors and our Supreme Court's holding in Carey. Further, the sentencing judge found aggravating factors three (risk of defendant committing another offense), six (extent of prior criminal record), and nine (need for deterring defendant and others) and no mitigating factors. As to factor six, the court considered defendant's three prior juvenile related adjudications, four disorderly persons convictions and his prior conviction of possession with intent to distribute in 2003. "Based on the articulated objectives of the Legislature, the enhanced sentencing provision of the Drug Act, N.J.S.A. 2C:43-6(f), is, by its very terms, deterrence-oriented, directed at defendants who have 'demonstrat[ed] an escalating pattern of drug activity.'" State v. Hill, 327 N.J. Super. 33, 41 (App. Div. 1999) (citing State v. Kirk, 145 N.J. 159, 165 (1996)).

"Accordingly, it 'target[s] for expedited prosecution and enhanced punishment those repeat drug offenders and upper echelon members of organized narcotics trafficking networks who pose the greatest danger to society.'" Kirk, supra, 145 N.J. at 167.

VIII.

Defendant argues, and the State concedes, that two errors in the Judgment of Conviction (JOC) exist. First, count six is listed as a third-degree offense in the JOC, whereas defendant was actually convicted and sentenced for a fourth-degree offense on that count. Second, count eleven is listed as a second-degree offense in the JOC, when defendant pled guilty to a disorderly persons offense in that amended count. The State further agrees that this case should be remanded for a correction of the JOC. However, the State asserts defendant's aggregate sentence should be affirmed as these are the terms he agreed to in a post-trial agreement. We are not persuaded by the State's sole reliance on a signed plea agreement.

Every plea agreement must be within the statutory guidelines and supported by aggravating and mitigating factors sufficiently evident in the record. State v. Sainz, 107 N.J. 283, 292 (1987). There can be no plea agreement to an illegal sentence. State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005). We cannot discern from the record whether defendant was sentenced to the maximum permissible extended three-year term for a fourth-degree crime pursuant to the Drug Act, N.J.S.A. 2C:43-6(f) on count six of the indictment, or to the minimum term of three years for ordinary range for a third-degree offense. The latter would be an illegal sentence, even if it were agreed to by defendant in a post-trial plea agreement. Defendant was convicted of a fourth-degree offense on count six, however, the judge appears to have mistakenly referred to the conviction as a third-degree offense in the record, and the JOC mistakenly lists count six as a third-degree offense. Because of these discrepancies, it is necessary for the trial court to clarify the basis for defendant's sentence.

We affirm the conviction and remand solely for a more fully developed record as to sentencing, correction of the Judgment of Conviction, and adjustment of the sentence term if statutorily required. We do not retain jurisdiction.


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