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State v. Lopez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VICTOR LOPEZ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. I-05-06-0673.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Wefing and Yannotti.

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1); and second-degree possession of a controlled dangerous substance, heroin, with intent to distribute within five hundred feet of a public facility in violation of N.J.S.A. 2C:35-7.1. At the conclusion of the State's case, the trial court dismissed a charge of employing a juvenile in a drug distribution scheme in violation of N.J.S.A. 2C:35-6. The trial court granted the State's motion to impose an extended-term sentence under N.J.S.A. 2C:43-6(f). It merged the first and third convictions into the conviction for possession with intent to distribute and sentenced defendant to six years in prison, with a three-year period of parole ineligibility, to be served consecutively to a sentence defendant was serving at the time of his trial. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was arrested on Wood Street in Trenton in the mid-morning of March 14, 2005. Wood Street is a small-one way street that runs between Stockton and Montgomery Streets in an area known for narcotic trafficking. Detectives Woodhead and Mulryne of the Vice Enforcement Unit of the Trenton Police Department set up surveillance on the roof-top of a five-story building on Wood Street. The weather was clear, and they were equipped with binoculars. They observed Irven Higgenbotham and Van Wells standing in front of 28 Wood Street. Higgenbotham and Wells were known to the detectives from other investigations. A white woman walked down Wood Street, and the detectives, through their binoculars, saw what they recognized as a narcotics transaction. The woman walked away and was not placed under arrest.

After a short period of time, they saw a silver Acura drive up. Defendant got out of the driver side, and Alphonso Slaughter got out of the passenger side. The officers recognized both men. The two approached Higgenbotham and Wells, who were on the porch of 28 Wood Street. A white male walked down Wood Street and the officers saw defendant wave to the man and then gesture toward Slaughter. Slaughter went to the vehicle, reached in and retrieved something. The man just stood there, some distance away until defendant waved him over. Slaughter and the man approached each other, and the two engaged in a hand-to-hand transaction which the detective recognized as a narcotics transaction. At that point defendant looked up to the roof of the building where Woodhead and Mulryne were and shouted up to the two detectives that he saw them. The detectives summoned back-up officers and the four men were arrested. When Slaughter was arrested, he discarded a packet that the officer picked up; it contained five decks of heroin.

At the time of the first narcotics transaction, the detectives had seen Wells go to the rear of 28 Wood Street and return with a potato chip bag from which he retrieved an item he gave to the woman. When she left, he returned the bag to the spot from which he had retrieved it. The arresting officers located the potato chip bag; it contained 133 decks of heroin. When the four men were arrested, Wells had $429 in his possession, Higgenbotham $45, Slaughter $830 and defendant $655.

Defendant raises the following arguments on appeal.

POINT I.

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 TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT THE DEFENDANT IS RESPONSIBLE FOR THE CRIMINAL ACTS OF THE CO-DEFENDANT ONLY IF HE SHARES A COMMON CRIMINAL PURPOSE WITH THE CO-DEFENDANT AND AGREES TO PARTICIPATE IN THE CRIME WITH THE SAME CRIMINAL STATE OF MIND. (Not Raised Below)

POINT II.

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 WHEN THE PROSECUTOR INFORMED JURORS THAT THE STATE'S EXPERT WITNESS WAS RENDERING OPINIONS ABOUT THE DEFENDANT BASED ON THE POLICE REPORTS IN THE CASE. (Not Raised Below)

POINT III.

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 STATE'S USE OF CRIMINAL DISPOSITION EVIDENCE TO PROVE ITS CASE. (Not Raised Below)

POINT IV.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CUMULATIVELY PREJUDICIAL EVIDENCE THAT LACKED ANY PROBATIVE VALUE. (Not Raised Below)

POINT V.

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 ADMISSION OF PREJUDICIAL HEARSAY EVIDENCE. (Not Raised Below)

POINT VI.

THE VERDICT IS AGAINST THE WEIGHT OF THE [EVIDENCE].

Defendant first argues that the trial court committed reversible error in its charge to the jury by not including an instruction that the level of his criminal culpability may have differed from Slaughter's and that the jury could not convict defendant on the basis of Slaughter's culpability. Defendant's argument rests upon our decision in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), in which we reiterated the principle that

[i]f both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.

[Id. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)).]

This principle is inapplicable to defendant's trial. He was not tried as an accomplice to Slaughter, and there were no lesser-included offenses of which he might have been found guilty. The only question before the jury was whether the State had proven, beyond a reasonable doubt, defendant's participation in the narcotics trafficking the detectives had witnessed.

The State presented Detective Michael Novembre of the prosecutor's office to testify as an expert witness and opine whether the narcotics that were recovered had been possessed with the intent to distribute them. State v. Odom, 116 N.J. 65, 81 (1989). In his opening statement, the prosecutor made the following comment to the jury:

Now, we also have another witness we're going to call. You've heard his name mentioned numerous times yesterday. That's Detective Michael Novembre. He is a detective with the Special Investigations Unit of the Mercer County Prosecutor's Office. He has been with the office nearly 18 years, 14 of which he has spent as an undercover narcotics detective. He will come in and testify as an expert witness.

What this means is, one, he was not involved in this investigation. He was not involved in the arrest. He had nothing to do with this incident. But what he has done is he has reviewed the paperwork, the reports. He has looked at the evidence, and looking at all the information in the case, he has taken his experience, what he knows about narcotics trade here in Mercer County, takes that knowledge, applies it to the facts as he gets them from the reports and looking at the evidence, and he will offer you an opinion that not only was the heroin seized in this case possessed with the intent to distribute, but that what he got here basically is a multi-person operation.

It's not just one person on a corner dealing drugs. This was a little bit more of an elaborate scheme where you've got multiple people working. You have junior people trying to handle the drugs, more senior people like Mr. Lopez giving directions, telling them what to do, trying to distance themselves as much as they could from the money and from the drugs.

Defendant now argues that this comment was improper because it told the jury that Detective Novembre would be testifying about the particulars of this defendant and this case, rather than expressing an opinion on the basis of a hypothetical question.

Defendant made no objection to the comment when it was made, and we are unable to consider this fleeting remark to rise to the level of plain error. R. 2:10-2. Nothing within that comment, moreover, implicates the Supreme Court's recent decision in State v. Reeds, ___ N.J. ___ (2009). The trial court properly instructed the jury as to the role and function of an expert witness and the scrutiny to be given to such testimony. The prosecutor's opening comment provides no basis to reverse defendant's conviction.

During the course of his testimony, Detective Woodhead testified, without objection, that he recognized Wells, Higgenbotham and Slaughter from other investigations. He also testified, without objection, that he recognized defendant when he got out of the car. Defendant now argues that this constituted improper testimony of defendant's criminal disposition. We disagree.

Detective Woodhead testified that he had been a member of the Trenton Police Department for nine years and that through his routine patrol activities he was very familiar both with the geographic area and with those who lived in it because he had worked in the area for so long. In addition, neither Wells, Higgenbotham nor Slaughter were tried with defendant. Slaughter, moreover, appeared as a witness for defendant and freely testified to the jury that he had three convictions related to narcotics transactions.

We also reject defendant's argument of cumulative prejudicial error. Contrary to defendant's contention, the State did not contend or argue that defendant was guilty either by association or through his presence in an area known for drug trafficking. The State's argument was that defendant directed the drug dealing that was taking place in the presence of the detectives.

Officer Astbury of the Trenton Police Department was involved in the arrest of Alphonso Slaughter. He testified, without objection, that he received a call from Detective Woodhead instructing him to arrest Slaughter and that Woodhead identified Slaughter as an individual involved in a narcotics transaction. Defendant now argues that exchange constituted impermissible hearsay and that his conviction should be reversed as a result.

We reject this argument. The testimony was not offered to prove the truth of Slaughter's involvement in narcotics dealing but to explain why Officer Astbury was involved in his arrest. Further, in light of Slaughter's testimony at defendant's trial, which we have already noted, defendant can hardly claim to have been unfairly prejudiced.

Defendant's final argument, that the jury's verdict was against the weight of the evidence, does not warrant discussion in a written opinion for it would have no precedential value.

R. 2:11-3(e)(2).

Affirmed.

20090209

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