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State v. Davis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALDUHA R. DAVIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-01-0092.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 11, 2009

Before Judges Waugh and Newman.

Tried by a jury, defendant Alduha Davis was found guilty of distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5b(3) (count one), and distribution of a controlled dangerous substance (cocaine) in or within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The trial court sentenced defendant on the second-degree offense under count two to eight years imprisonment with a two-year period of parole ineligibility. Count one was merged into count two. The usual penalties, fines and loss of license sanction were imposed. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. At approximately 9:20 a.m. on August 1, 2001, Detectives Frank Sebasco and Kevin McDonough of the Elizabeth Police Department, Narcotics Unit, were conducting surveillance in the area of East Grand Street and Reid Street. They were in a black Lincoln Continental and Detective Sebasco was using binoculars. Three people were observed loitering on the southeast corner of East Grand and Reid Streets.

Within five minutes after the surveillance began, an individual, later identified as Willie Singley, approached defendant and engaged in a brief conversation. Defendant then walked to an alleyway next to 177 Reid Street. He could not be observed for several minutes. When defendant returned, he motioned to Singley. Singley handed defendant what looked like currency. In exchange, defendant handed Singley a small item which he had cupped in his hand. As Singley walked away, he held up the item received from defendant which was small and square.

Detective Sebasco gave Singley's description and direction of travel to back-up units who then arrested Singley. The officer found cocaine in Singley's possession. Defendant rode away on a bicycle. Detective Sebasco directed the back-up unit to stop defendant. Defendant was stopped, and had $537 in cash, but no narcotics. Defendant was arrested.

On appeal, defendant raises the following issues for our consideration:

POINT I:

THE TRIAL COURT ERRED IN PERMITTING DETECTIVE SEBASCO TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS (Not raised below).

POINT II:

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED.

POINT III:

THE STOP OF DEFENDANT WAS NOT BASED ON ANY REASONABLE AND ARTICULATE SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPRESSING THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10. (Not raised below).

POINT IV:

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT V:

THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We are satisfied that the arguments raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(2). We add, however, the following brief comments.

Contrary to defendant's assertion that Detective Sebasco improperly testified as an expert on the issue of intent to distribute narcotics, he did not give expert testimony. He was a facts witness who testified to the events observed while conducting a surveillance of what he believed had occurred between defendant and Singley. There was no objection to this testimony. Moreover, on cross-examination, defendant highlighted Detective Sebasco's expertise regarding narcotics investigations, inquiring about the street-level price for cocaine and that persons engaged in buying and selling narcotics try to keep those transactions secretive. Indeed, defense counsel explored Detective Sebasco's expertise in great detail, emphasizing factors which supported Detective Sebasco's experience in narcotics investigation. There was no error, much less plain error, in permitting Detective Sebasco's testimony.

The contention that the verdict was against the weight of the evidence is meritless. If the jury believed Detective Sebasco's testimony, along with the arrest of Singley, who had cocaine in his possession, there was more than ample evidence to support the jury verdict. There was no miscarriage of justice present in the verdict rendered by this jury. State v. Afanador, 134 N.J. 162, 178 (1990).

Defendant contends that the police lacked a sufficient basis to stop defendant and that the seizure of the $537 from his person was, therefore, illegal. Trial counsel is faulted for not having brought a motion to suppress the evidence seized from defendant. Trial counsel was not ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 53-58 (1987) because, had the motion to suppress been brought, it would have been denied on the facts presented. Thus, the outcome of the proceeding would not have been different.

Detective Sebasco's observation as an experienced narcotics officer of an exchange of money for four small, unknown objects in a high narcotics traffic area satisfied a probable cause standard to arrest and search defendant. State v. Moore, 181 N.J. 40, 46-47 (2004) (surveiling officer, based on the totality of circumstances, saw defendant and companion give money to a third party in exchange for small, unknown objects supported a well-grounded suspicion that he had witnessed a drug transaction); State v. Pagan, 378 N.J. Super. 549, 553-56 (App. Div. 2005) (experienced narcotics officer patrolling a known high narcotics area observed a paper currency exchange for a small unknown object which furnished a well-grounded suspicion for probable cause to arrest.) The apparent drug transaction witnessed here by Detective Sebasco mirrors those that were found to support probable cause to arrest in both State v.

Moore, supra, and State v. Pagan, supra. Defendant's trial attorney was not ineffective because the motion to suppress, had it been brought, would have been properly denied.

Defendant contends that the trial court failed to consider mitigating factors one, N.J.S.A. 2C:44-1b(1) (defendant's conduct did not cause or threaten serious harm), and eleven, N.J.S.A. 2C:44-1b(11) (the imprisonment of defendant would entail excessive hardship to himself or his dependents) in sentencing. Defendant's attorney recognized that defendant was convicted of a second-degree offense and argued that he should be sentenced at the lower end of that range. He did not specifically mention any mitigating factors, but only argued that his prior record was not extensive. On appeal, defendant argues that his conduct did not cause serious harm and that his incarceration would impose an excessive hardship on his four children, "who he makes child support payments on a weekly basis . . . ." The pre-sentence report, under the financial status section, discloses that defendant has a support arrearage of $5,000. Thus, the trial court could have properly rejected the claim that defendant's incarceration would constitute a hardship when support payments were not being made. With regard to no harm being done when drugs are sold, there is a harm to society by drug trafficking. The court could have properly rejected that as a mitigating factor.

We discern no basis to disturb the sentence imposed by the trial court.

Affirmed.

20090227

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