February 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK L. ANDERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No.06-05-0489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges C.L. Miniman and Baxter.
Defendant Frank Anderson appeals from his March 16, 2007 conviction on third-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-5(b).*fn1 The judge sentenced defendant to a four-year term of imprisonment of which eighteen months was ordered to be served without parole eligibility. Appropriate fines and penalties were imposed. We affirm.
On December 15, 2005, Millville Police were conducting an undercover operation aimed at purchasing narcotics from street-level drug dealers. Detective Brian Starcher approached defendant at Denora's Food Market while defendant was leaning against the outside of the building. Defendant asked Starcher, "What's up? What are you looking for? What are you doing?" Starcher testified that he interpreted defendant's question as inquiring whether Starcher was interested in buying narcotics. Starcher responded that he "was looking to . . . score a 20 piece," which Starcher explained at trial is slang for a twenty-dollar piece of rock cocaine. Defendant responded that he did not have any, but that he "would take [Starcher] to get some if [Starcher] was able to hook him up." Starcher explained that the term "hook him up" meant rewarding the other person with drugs or money.
Starcher agreed to those terms and agreed to accompany defendant to the area of Third and E Streets in Millville where the two came into contact with Sharp. When defendant told Sharp that Starcher was interested in purchasing a "twenty piece," Sharp told defendant and Starcher to follow him on foot until they reached Fifth Street, where Sharp made a phone call. Defendant and Starcher were unable to hear Sharp's conversation; however, after the conversation ended, the three walked a short distance until they came upon a gold-colored Nissan parked at the curb with a female driver and a male passenger inside.
When Sharp approached the car, the passenger lowered his window, enabling Sharp to reach into the vehicle and obtain something from him. Sharp walked back to defendant and Starcher, who put out his hand to try to obtain the drugs. Sharp told Starcher, "No, no, no, no, not here. Follow me down to the corner." Starcher testified that he and defendant followed Sharp's instruction. According to Starcher, at the corner, Sharp handed him a small plastic bag containing rock cocaine in exchange for Starcher's twenty-dollar bill. Sharp left the scene and Starcher and defendant proceeded back to Denora's Food Market, where defendant asked Starcher if he could smoke some of the cocaine. Starcher answered no, took out a five-dollar bill and gave it to defendant saying, "here's $5 for hooking me up. Thanks." According to Starcher, defendant seemed pleased with the five dollars and told Starcher that if he ever "needed anything else, come and find him," that his name was "Frank," and he would "hook [Starcher] up again." Starcher and defendant parted, and Starcher proceeded to a pre-arranged location to meet his back-up unit.
The State also produced the testimony of Detective Michael Romanik, who testified that from a distance he was able to observe defendant and Starcher walk over to Sharp. Romanik explained that he knew Sharp as "Gator." Romanik approached defendant after Starcher had left him and asked defendant to identify himself. After defendant did so, Romanik released him. Romanik explained that he did not arrest defendant and Sharp until January 5, 2006, because had he arrested them on the day in question, Starcher's identity as an undercover police officer would have been exposed and he would have been unable to continue working in an undercover capacity.
After the State rested, defendant moved for a judgment of acquittal, arguing that the State failed to present proof demonstrating he was guilty of conspiracy to distribute CDS. Judge Waters denied the motion, reasoning that the State presented sufficient evidence from which a jury could infer that defendant's purpose was to promote or facilitate the distribution of CDS from Sharp to Starcher. The defense rested without calling any witnesses. After the defense rested, defendant renewed his motion for acquittal. The judge denied the motion for the same reasons he had denied defendant's earlier motion.
In relevant part, the judge charged the jury as follows:
A person is guilty of Conspiracy with another person to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with such other person or persons that they or one or more of them will engage in conduct, which constitutes such crime, or an attempt or solicitation to commit such crime.
In order for you [to] find the Defendant guilty of the crime of Conspiracy, the state must prove beyond a reasonable doubt the following elements. One; the Defendant agreed with another person . . . that they would engage in conduct, which constitutes a crime or an attempt or solicitation to commit a crime.
Two; that the Defendant's purpose was to promote or facilitate the commission of the crime of Distribution of a Controlled Dangerous Substance.
In order to find the Defendant guilty of the crime of Conspiracy, the State does not have to prove that he actually committed the crime of Distribution of a Controlled Dangerous Substance. However, to decide whether the State has proven the crime of Conspiracy, you must understand what constitutes the crime of Distribution of [CDS].
To reiterate, three elements of the offense of Distribution of a [CDS] are the existence of the [CDS], that there was a distribution of the [CDS] [sic]. And that the persons engaged in the act of distribution must have acted knowingly or purposely in distributing the [CDS].
Now remember, the crime charged in this case is Conspiracy, not Distribution. A Conspiracy may be proven by direct or circumstantial evidence. It's not essential that there be direct contact among all the conspirators or that they enter into an agreement at the same time.
If the Defendant is aware that any person he conspired with also conspired with others to commit the same crime, the Defendant is guilty of conspiring with others. He . . . need not be aware of their identity.
Mere association, acquaintance or family relationship with an alleged conspirator is not enough to establish a Defendant's guilt of Conspiracy, nor is the mere awareness of the Conspiracy. Nor would it be sufficient for the State to prove only that the Defendant met with others or that they discussed names or interests in common.
For him to be found guilty of Conspiracy, the State has to prove beyond a reasonable doubt that when he agreed, it was his conscious object or purpose to promote or make it easier to commit the crime of Distribution of a [CDS].
In summary, the State must prove the following elements; that the Defendant agreed with another person or persons that they or one or more of them would engage in conduct, which constitutes a crime or an attempt or a solicitation to commit such crime. In this case, the Distribution of a [CDS].
And two; the Defendant's purpose was to promote or facilitate the commission of the crime of Distribution of a [CDS]. [(Emphasis added).]
Defendant made no objection to the charge.
At sentencing, defendant argued three mitigating factors applied: number one, "the defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1(b)(1); number two, "the defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2); and number eight, "the defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8). The judge rejected all three proposed mitigating factors. He found the existence of aggravating factors three, six and nine which are, respectively, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). After finding he was "clearly convinced that the aggravating factors substantially outweigh the mitigating factors," the judge imposed a four-year term of imprisonment, with an eighteen-month period of parole ineligibility.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
II. DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL DUE TO THE TRIAL COURT'S FAILURE TO EXCLUDE HEARSAY EVIDENCE (Partially Raised Below)
III. DEFENDANT WAS DENIED A FAIR TRIAL BY THE DISCLOSURE OF AN ["]ALSO KNOWN AS["] NAME OF THE CO-DEFENDANT (Not Raised Below)
IV. THE TRIAL COURT FAILED TO CHARGE THE JURY CORRECTLY, THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (Not Raised Below)
V. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE
In Point I, defendant argues that the trial judge erred when he denied defendant's motion for acquittal because, when viewing the evidence in the light most favorable to the State, the evidence was insufficient "for a reasonable jury to find that defendant agreed with Mr. Sharp to distribute CDS." When evaluating a defendant's Rule 3:18-1 motion to dismiss based upon insufficient evidence, a court must determine:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the 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, 458-59 (1967).]
On appeal, we apply the same standard the trial court applies in analyzing whether the trial court properly denied a Rule 3:18-1 motion for acquittal. State v. Kittrell, 145 N.J. 112, 130 (1996). Furthermore, when weighing such a motion, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App Div. 1974), certif. denied, 67 N.J. 72 (1975)).
To survive defendant's motion to dismiss, the State was required to establish that its evidence demonstrated, in accordance with N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, that defendant made an agreement with Sharp to aid or assist him in distributing cocaine. "[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007).*fn2 "'The agreement is an advancement of the intention' to commit the crime." Ibid. (citation omitted). To establish conspirator liability, there is no requirement that defendant actually committed the crime. Id. at 245-46.
Conspiracy may be proven circumstantially. Id. at 246. However, "[t]he mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.), certif. denied, 130 N.J. 395 (1992).
Here, the State provided sufficient evidence to support a conviction on conspiracy to distribute CDS. Specifically, after being told by Starcher that he was looking to "score a twenty piece" of rock cocaine, defendant voluntarily brought Starcher to Sharp. Sharp, after directing defendant and Starcher to follow him, subsequently obtained rock cocaine in the amount Starcher had requested and distributed it to Starcher, after which Starcher gave Sharp $20 and defendant $5. From this evidence, it can be inferred that defendant's purpose in bringing Starcher to Sharp was to facilitate or promote the distribution of CDS. Consequently, when viewing this evidence in the light most favorable to the State, as required by Reyes, supra, 50 N.J. at 458-59, Judge Waters properly denied defendant's two motions for a judgment of acquittal. Consequently, we reject the argument defendant raises in Point I.
In Point II, defendant argues that he was denied a fair trial when the trial court refused to exclude Starcher's testimony describing Sharp's alleged statements. In particular, defendant points to Starcher's testimony that, prior to the actual drug transfer, Sharp stated, "[n]o, no, no, no, not here. Follow me down to the corner." Defendant maintains that this hearsay testimony fails to satisfy the three-prong test for admissibility established in State v. Phelps. In Phelps, the Court held that a co-conspirator's hearsay statement is not admissible at trial unless: (1) the statement was made in furtherance of the conspiracy; (2) the statement was made during the course of the conspiracy; and (3) aside from the hearsay statement at issue, there is independent evidence showing the existence of the conspiracy and defendant's involvement in it.
96 N.J. 500, 509-10 (1984).
Although the admissibility of statements made by a co-conspirator should generally be determined at a N.J.R.E. 104(a) hearing outside the presence of the jury, "[n]o problem arises when the prosecution satisfies the conditions precedent before the hearsay statement is admitted." Id. at 519-20. Thus, "a full-blown" hearing is necessary "only where the quantum of hearsay to be admitted is substantial and the risk of prejudice is severe." Id. at 520.
In evaluating the Phelps criteria, we conclude that a Rule 104(a) hearing was not necessary because Sharp's hearsay statement was not central to the furtherance of any conspiracy, but instead pertained to the relatively insignificant subject of whether he would hand the cocaine to Starcher then and there or whether instead, the three would walk to the corner. This is not the type of "substantial" evidence where "the risk of prejudice is severe," thereby necessitating the "full-blown" hearing as described in Phelps. See Ibid.
Moreover, the State satisfied the three-prong Phelps test before the hearsay was elicited. In particular, Sharp's statement was made in furtherance of the conspiracy because its purpose was to facilitate the actual transfer of the cocaine to Starcher, and was made in the course of the conspiracy because it was elicited before Sharp actually handed the cocaine to Starcher. Finally, the State provided independent evidence of the conspiracy that was substantial enough to engender a strong belief in the existence of the conspiracy and defendant's participation in it, namely Starcher's testimony that defendant brought him to Sharp after he asked defendant for a "twenty piece" of cocaine. Under these circumstances, we conclude that the Phelps criteria were fully satisfied. Consequently, we reject the argument defendant raises in Point II.
In Point III, defendant argues that Romanik's testimony identifying Sharp's street name of "Gator" was clearly capable of producing an unjust result, Rule 2:10-2, because it caused a "significant likelihood that the jury could reasonably find [defendant] guilty by association with a person who had a fearsome reputation, as the name 'Gator' strongly implies, of a drug dealer." In support of his argument, defendant relies on our holding in State v. Salaam, 225 N.J. Super. 66, 72 (App. Div. 1988), that the existence of an alias should be kept from the jury unless relevant for some specified purpose. However, only those street names that have pejorative connotations should be excluded. See State v. King, 372 N.J. Super. 227, 241 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).
We agree with the State that the nickname "Gator" does not have pejorative connotations nor does it imply that Sharp was a drug dealer. Under those circumstances, Romanik's isolated reference to Sharp's nickname "Gator" did not deny defendant a fair trial. We therefore reject the argument defendant raises in Point III.
In Point IV, defendant argues that the trial court's instruction on the elements of the offense of conspiracy to distribute CDS was so flawed as to deny him a fair trial. In particular, he maintains that the jury charge "failed to inform the jury that intent by [defendant] to distribute CDS with Mr. Sharp was not sufficient to convict for [c]onspiracy without proof of an agreement between [defendant] and Mr. Sharp."
Unquestionably, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "The trial court must give a clear explanation of the applicable law to provide the jury with an adequate understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66, 85 (2001).
In addition, when a defendant fails to object to the charge at the time it was given, there is a presumption that the failure to object reflected the defendant's assessment that the charge was not error and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333-34 (1971). Accordingly, in the absence of an objection at trial, any claim of error concerning a jury charge is reviewed under the plain error standard and will be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
Here, the plain error standard applies because defendant failed to object to the charge at the time it was given. It is clear from a review of the jury charge that the judge instructed the jury that the State was required to prove an agreement between defendant and Sharp to distribute cocaine to Starcher. Moreover, Judge Waters emphasized repeatedly that the State was required to prove that any agreement defendant made with Sharp was for the conscious purpose of promoting or facilitating Sharp's distribution of CDS. The judge's charge thoroughly and clearly explained to the jury the elements the State was required to prove beyond a reasonable doubt. Defendant's arguments to the contrary are meritless.
In Point V, defendant argues that the sentence imposed by Judge Waters was excessive. In particular, defendant focuses on Judge Waters's rejection of the three mitigating factors advanced by defendant and maintains that the judge's "failure to find any mitigating factors made th[e] sentence clearly unreasonable." Defendant further maintains that "the record shows that [defendant's] intent, if anything, was to use the purported crack-cocaine obtained by Detective Starcher. He was peripheral to this transaction and did not contemplate that his actions would cause harm." For those reasons, he maintains that the judge erred in rejecting mitigating factors one and two.
Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant's prior record provides ample support for the judge's conclusion that there is a risk defendant will commit another crime. In particular, defendant was convicted in 1983 of first-degree aggravated sexual assault, for which he was sentenced to a fifteen-year term of imprisonment.
While on parole from that conviction, defendant was returned to prison on four occasions for parole violations. In 1989, defendant was convicted of second-degree sexual assault and third-degree terroristic threats, for which he was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. He was released from prison in 1994. Although defendant incurred no other indictable convictions until he was convicted of the instant offense, he incurred twenty disorderly persons convictions between 1998 and 2005.
Defendant's prior record also provides ample support for the judge's finding that defendant has an extensive prior record that includes convictions for serious offenses, thereby satisfying aggravating factor number six. As to aggravating factor nine, the record supports the judge's finding of the need for deterrence.
Judge Waters rejected mitigating factors one and two because he concluded that agreements to distribute CDS do threaten serious societal harm, and defendants who engage in such conduct should indeed contemplate the risk of such harm. Under those circumstances, we have no quarrel with the judge's rejection of mitigating factors one and two. Defendant's contention that his conduct was the result of circumstances unlikely to recur, thereby satisfying mitigating factor eight, was also properly rejected by the court. Defendant's prior record strongly suggests that if similar circumstances were to recur, defendant is likely to again engage in the same sort of criminal conduct. Thus, the record supports Judge Waters's findings concerning both the aggravating and mitigating factors.
Having found the existence of three aggravating factors and no mitigating factors, the judge's finding that he was clearly convinced that the aggravating factors substantially outweighed the non-existing mitigating factors was supported by the record and authorized the imposition of a parole ineligibility term. See N.J.S.A. 2C:43-6(b). Defendant does not challenge that decision. The sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 363-64.