March 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM GOINES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0576-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Collester and C.S. Fisher.
Tried to a jury, defendant Kareem Goines was convicted of all counts of an indictment charging him with possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35- 10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and possession with intent to dispense or distribute cocaine within 1,000 feet of school property used for school purposes, contrary to N.J.S.A. 2C:35-7 (count three). Prior to sentencing the State moved for an extended term pursuant to N.J.S.A. 2C:43-6(f). The sentencing judge granted the motion, and on April 21, 2006, the court merged the convictions on the first two counts and committed the defendant on the school zone conviction to an extended term of eight years with a three-year period of parole ineligibility.
The following testimony was adduced at trial. Jersey City police officer Dino Nerney testified at trial that at approximately 7 p.m. on December 12, 2004, he was conducting narcotics surveillance from the back of an unmarked undercover SUV in the area of Bayview Avenue and Martin Luther King Drive (MLK). He was backed up by officers Edward Nieves and Scott Rodgers as a "perimeter unit" in another unmarked vehicle. Nieves testified that the area was chosen for surveillance because, "its a known high narcotics area" and complaints of drug activity had been received from neighborhood residents.
When he parked, Nerney saw a man later identified as defendant standing on the southwest corner of MLK wearing a camouflage coat, blue jeans, and a beige knit cap. After about two minutes, a black woman approached the south corner of MLK and waved to the defendant. Nerney was about fifteen to twenty feet away and had a clear, unobstructed view as the defendant crossed the street to meet the woman. After a brief conversation, the woman handed defendant what Nerney described as "green paper currency," that defendant placed in his pocket. The defendant and the woman walked in front of Nerney's SUV and stopped a few feet from a driveway to the Sacred Heart School. Using binoculars, Nerney saw defendant walk five or ten feet away from the woman, bend down, and pick up a clear plastic bag from the grass next to the sidewalk curb. He removed a small, shiny object from the bag, replaced the bag in the grass, walked back to the woman and handed her the object. The woman then walked away, heading eastbound on Bayview Avenue toward Ocean Avenue.
Based on his training and experience, Nerney concluded that he had witnessed a drug transaction. He radioed Nieves and Rodgers to stop the woman. But he then saw defendant start to follow her. Nerney suspected that defendant was making sure that the woman was not arrested. He explained it was common practice for drug dealers to follow a buyer to see whether they were stopped by the police. As a result, Nerney instructed the other officers to "back off" and not arrest the woman so that he could focus upon the activities by defendant as a drug seller.
After a moment defendant crossed the street and entered a house in the middle of the block and which Nerney believed to be 156 Bayview Avenue, although he later said he was not sure of the exact address. After about five minutes, defendant came out of the house wearing the same clothes. He walked past the SUV, and Nerney said he was "100 percent sure" it was the same man he saw selling drugs. Nerney radioed Nieves and Rodgers to arrest defendant and told them that defendant's "stash" was on the ground near the school. After defendant was arrested, Nerney circled the area in the SUV to look for the woman purchaser, but he was unsuccessful.
Officer Edward Nieves testified that he and Officer Rodgers were on duty in an unmarked vehicle as a perimeter unit working with Officer Nerney who was in the area of Bayview Avenue and MLK. Nieves and Rodgers sat a few blocks away waiting for Nerney to provide them with any description of individuals who needed to be stopped or arrested. Nerney eventually radioed the unit to stop a black female wearing a black leather jacket and blue jeans, but as they started toward Bayview and MLK, Nerney instructed them to back off. Later Nerney radioed them with a description and location of defendant and told them to stop him. After Nieves and Rodgers stopped defendant west of MLK on Bayview Avenue, Nerney radioed Rodgers to check the area for a stash location while Nieves remained with the defendant. Once Rodgers returned with a plastic bag containing drugs, Nieves placed defendant under arrest. He then searched the defendant and found two $5 bills and thirty-one $1 bills in his jacket pocket.
Rodgers testified that he and Nieves received the description of a suspect from Nerney and were instructed to stop him. Rodgers said when they stopped defendant, they advised him of the investigation, patted him down for weapons and made sure that he was secure. He then radioed Nerney, who gave him directions to where he believed the stash was located. Rodgers said he found the stash near the Sacred Heart School by a black metal fence with a small curb. The stash was in a bag with a butterfly logo placed in the grass on the inside of the curb so it could not be seen from the street. The bag contained twenty-six vials of a substance later identified as cocaine.
Sergeant Wally Wolfe of the Jersey City Police Department was qualified as an expert in the area of narcotics packaging and distribution. He testified that a vial of cocaine is typically sold for $10 on the streets of Jersey City. He said a dealer usually does not have his cocaine stash on his person, but keeps it within his sight. He opined that the quantity of cocaine and its location indicated an intent to distribute.
On cross-examination Wolfe answered that the area of Bayview Avenue and MLK was a well-known cocaine market and that in such a high-narcotics area there could be a myriad of stash locations. He said that drug dealers carefully watched their stash and that it was not common for a dealer to leave his stash in a clear plastic bag lying in the grass. He also said that it would have been unwise for a dealer to leave his stash and walk into a residence.
The defense witnesses were George Kelly, Jr. and Graham Speaks. Kelly testified he lived at 156 Bayview Avenue in Jersey City, the house that Nerney believed defendant entered after the transaction. Kelly said that he recognized Goines and believed that he lived down the street at 150 Bayview Avenue. Speaks testified he lived at 150 Bayview Avenue and that Mary Speaks, defendant's grandmother, also lived there. Speaks testified that on Sunday, December 12, 2004, he returned home from church at about 2 p.m. He saw defendant in the guest room watching a pro football game and joined him until just before dinner at 6 p.m. After dinner he and defendant watched the game until it was over. He said defendant left the house at about 7 p.m.
On appeal, defendant raises the following legal arguments:
POINT I - THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II - The DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ACCURATELY AND COMPLETELY ON THE LAW OF SCHOOL DRUG CRIMES. (Not Raised Below.)
POINT III - STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below.)
POINT IV - DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION.
POINT V - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below.)
POINT VI - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below.)
POINT VII - THE DEFENDANT'S SENTENCE WAS EXCESSIVE.
Defendant's major argument is that the trial judge erred in failing to grant his motion for judgment of acquittal at the conclusion of the trial because the State's proofs were insufficient to convict him of distribution or possession with intent to distribute a controlled dangerous substance within 1,000 feet of school property and, alternatively, that the trial judge failed to adequately instruct the jury on the issue of whether the property in question was actually used for school purposes at the time of the offense.
A motion for judgment of acquittal will generally be denied if there is sufficient evidence to warrant conviction. R. 3:18-1. The trial judge must evaluate the sufficiency of the evidence in determining whether the State met its burden to all elements of the charged crime under the following standard:
Whether, 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 and 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, 459 (1967).]
See also State v. Samuels, 189 N.J. 236, 245 (2007).
The applicable statute, N.J.S.A. 2C:35-7, provides that a person who distributes or possesses a controlled dangerous substance with the intent to distribute within 1,000 feet of school property is guilty of a third-degree offense, and a person convicted of this offense must serve a mandatory prison term. The State is obliged to prove that the defendant was within the 1,000 foot distance and that the property in question was used for school purposes "regularly, consistently, and actually." State v. Thomas, 132 N.J. 247, 258-59 (1993). It is not necessary for the State to prove that defendant intended to distribute drugs within the 1,000 foot zone as long as it can establish that possession was within the zone coupled with an intent to distribute generally. State v. Bethea, 243 N.J. Super. 280 (App. Div.), certif. denied, 122 N.J. 401 (1990). The State need not prove that the defendant knew the property in question was school property, but it must prove that an objectively reasonable person would know it. State v. Ivory, 124 N.J. 582, 592-93 (1991); State v. White, 360 N.J. Super. 406, 412 (App. Div. 2003).
The use of the property for school purposes is an essential element for the State's requisite proofs. Ivory, supra, 124 N.J. at 587. As we stated in State v. King, 248 N.J. Super. 173, 177 (App. Div. 1991),
The unique feature of N.J.S.A. 2C:35-7 is that it mandates minimum prison terms.
These are to be imposed upon any person who possesses with intent to distribute a controlled dangerous substance 'while on any school property used for school purposes . . . or within 1,000 feet of such school property' (emphasis supplied). Since the purpose of the statute is to protect children of elementary and secondary school age from exposure to drug trafficking, there would be no point in extending the reach of a statute to 'school property' used for other than school purposes.
The statute provides in part that if the State produces a properly authenticated map accompanied by an authorizing ordinance, the map "shall constitute prima facie evidence of the location and boundaries of [the 1,000 foot school zone]."
N.J.S.A. 2C:35-7. The Supreme Court held in Thomas that the statute creates a presumption as a permissive inference sufficient to make out a prima facie case as to the required element that the property be used for school purposes. Thomas, supra, 132 N.J. at 254; N.J.R.E. 303. Defendant cites State v. Tarver, 272 N.J. Super. 414, 428 (App. Div. 1994) in support of his application for acquittal, but the case is factually distinguishable. There we held that it was error not to grant a judgment of acquittal in a school zone case at the conclusion of proofs when the State produced a map in light of a defense witness's unrebutted testimony that the school had been closed months before the defendant's arrest at the scene. Id. at 429-30. In the instant case, however, the police witness testified that the Sacred Heart School and the driveway were located on the map, and the defense offered no contradictory proof. Therefore, the map created a presumption and prima facie case that the Sacred Heart School was used for school purposes at the time of the alleged offense, and defendant's motion for judgment of acquittal was properly denied.
Moreover, the State need not rely exclusively on the presumption created by a map of the school zone but may introduce other proofs to show that the property was used for school purposes. The question then is whether viewing the State's evidence in its entirety and giving it the benefit of favorable inferences which reasonably could be drawn from its proofs, a reasonable jury could find guilt beyond a reasonable doubt. State v. Martinez, 97 N.J. 567, 571-72 (1984).
In the instant case, the State presented the following testimony relating to the location of the school and its use for school purposes. When referring to the map, Officer Nerney testified, "This is the driveway to the school right here."
Again when describing the scene of the drug transaction, Officer Nerney states,
A I think there's [sic] a couple of lights up on the school. I'm not sure how many lights are there. But this is a school right here. And I think the nuns park their cars in there all the time -
A: - In the school.
The detective further testified that at the time of the offense it was around 7:00 p.m. in December, "so it's not too much [traffic] around the school itself."
Officer Nerney also referenced the school at the following points during direct examination:
Q: Okay. Now what are you pointing to?
A: This is Sacred Heart School, box number 48.
Q: Okay. And what's the-the darker areas indicate on this map?
A: It shows that it's 1000 feet of a school-
A: -drug free zone.
Q: And what's that area you're circling on the map there?
A: That's box number 48, Sacred Heart School.
Q: Okay. And Sacred Heart School is significant, could you just reiterate for the jury?
A: Because the sale-the drugs that he possessed [. . .] were within 1000 feet of the school. . . . .
Q: That darker block there inside the lighter block indicates Sacred Heart School, Officer?
Q: Okay. And that's where the drugs were located?
Q: Okay. Thank you, Officer. I just want to show you just a quicker - could you identify this as well?
A: Yeah, this is a blow-up of that same area with Sacred Heart School, number 48. . . . .
Q: Is that the fence area by Sacred Heart School?
A: Yes, that's the fence area, yeah. . . . Yeah, that's, that's the school with the fence. . . .
Q: But this accurately reflects the way the school and the corner looked-
A: Yeah, that's how-
Q: -on the day in question.
A: -it looked, yeah, exactly, yes.
Q: Okay. And, Officer, it was your understanding that evening that that was recovered near Sacred Heart School?
A: Yes, it was.
Q: Okay. And, Officer, to your knowledge is Sacred Heart School now being used for school purposes?
A: Yes, it is.
Defendant points out that Nerney responded affirmatively to the prosecutor's question at to whether the property is "now being used for school purposes," but not whether it was so used at the time of the alleged offense. Accordingly, he argues that the State failed to prove an essential element of the school zone offense. However, a review of Officer Nerney's entire testimony satisfies us that he indicated the property was used for school purposes at the time of the crime. He said the school zone map accurately represented the way the school and the corner looked on December 12, 2004. He repeatedly referred to the property as a school while he described his observations of defendant's activities, and his testimony on the issue was uncontroverted. The State is not required to disprove every possible contingency. Thomas, supra, 132 N.J. at 259. As we stated in our decision in State v. Thomas, 256 N.J. Super. 563 (App. Div. 1992), "As a matter of common experience, a school is used for school purposes. The inferred fact, use of property for school purposes, reasonably flows from the fact already established, by the existence of a school." Id. at 569-70 (quoted with approval in Thomas, supra, 132 N.J. at 259).
Based upon the authenticated municipal map of the drug-free zone and the testimony from State witnesses, we find that a reasonable jury could conclude beyond a reasonable doubt that defendant distributed drugs within 1,000 feet of school property that was used for school purposes. Accordingly, the motion was properly denied.
We next consider defendant's argument that the trial court's instructions did not provide the jury with the requisite legal criteria for a school zone offense under N.J.S.A. 2C:35-7. It is the obligation of the trial judge, whether or not requested, to instruct fully, clearly and accurately as to each of the elements of the offense. State v. Adams, 194 N.J. 186, 207 (2008); State v. Green, 86 N.J. 281, 290 (1981). In the instant case the judge charged the jury as follows:
The final charge says that the defendant possessed with intent to distribute a controlled dangerous substance on or near school property used for school purposes. Any - and the statute says: "Any person who violates the law by possessing with intent to distribute a controlled dangerous substance while on any school property used for school purposes, which is owned by any elementary or secondary school or school board, or within 1000 feet of that school property, is guilty of a crime."
So the elements that the State is required to prove beyond a reasonable doubt is that S-4 in evidence is cocaine. The defendant possessed or had it under his control. That he had the intent to distribute S-4 while he had it under his control. That he acted knowingly and purposely in doing so. And in addition to proving those four elements which I've just explained to you, that he was on or was in, was in 1000 feet of any school property.
So the only element new - I've explained all those elements to you except this last one. And I'm going to tell you the term "school property" means any property which is used for school purposes and is owned by or leased to an elementary school, secondary school or school board.
The 1000 feet zone extends from the outermost boundary of the school property and not from the school building itself. It does not matter whether the school is public, private or parochial. It's no defense to this charge that no juveniles were present on the school property at the time of the offense or that the school was not in session.
The possibility that the defendant may have been unaware that the prohibited conduct took place within 1000 feet of school property is not a defense to this crime and shall not be considered by you in your deliberations.
I will further tell you that whether the defendant intended to make a distribution within 1000 feet of a school is irrelevant.
So the elements of that offense, possession, that S-4, S-4 is cocaine, that the defendant knowingly possessed it, that he possessed it with intent to distribute it, he did so knowingly or purposely, and that he was within 1000 feet of school property used for school purposes.
If you find the State has proved all of those elements beyond a reasonable doubt, then you must find the defendant guilty. If you find the State has failed to prove any of those elements, then you must find the defendant not guilty.
Initially, the State argues that since defendant made no request to charge, our review is limited to plain error - that is, whether the alleged error prejudiced the substantial rights of the defendant and possessed the clear capacity to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); R. 2:10-2. But the court's failure to fully instruct the jury on all essential issues before the jury is reversible error, whether or not requested by the defendant. Adams, supra, 194 N.J. at 207. In criminal cases erroneous, unclear, or incomplete jury charges are ordinarily presumed to constitute plain error and are regarded as "poor candidates for rehabilitation under the harmless philosophy." State v. Bunch, 180 N.J. 534, 541 (2004).
Moreover, while defendant did not submit a written request to charge, his counsel underscored the issue during the motion for acquittal following the State's proofs and at the conclusion of the evidence, arguing that the State had not proved that the property was used for school purposes on December 12, 2004. In denying defendant's motion at the completion of the State's case, the trial judge said
THE COURT: I think we should submit the charge to the jury, have future discussions about it or research of it. I think the evidence is there . . .
Following summations, defense counsel renewed the motion and said in part:
It just is a critical element that is one of the elements you are going to have to instruct the jury that the State has to prove beyond a reasonable doubt that the school was open and being used for school purposes at the time in question.
The court responded:
In the context of this case, given the - all the testimony, including discussing the school, discussing when the nuns park, discussing that particular driveway where the nuns go in, discussing the fact that there was less traffic than is during the week because it was a Sunday and school wasn't in session, the map of Jersey City that was shown to the jury, that permitted them to see the area being within 1,000 feet of a school. Even if the question was asked in the present tense, it's a reasonable inference that this Catholic school that's been there continues to be open - or was open at that point in time. So I'm going to, once again, deny the motion.
In charging the jury the trial judge failed to instruct the proper use of the school zone map. As we stated supra, a properly authenticated map accompanied by a municipal ordinance creates a presumption that the notice of the property was a school under N.J.S.A. 2C:35-7. However, in a criminal case a statutory presumption is permissive and is only an evidentiary device enabling jurors to draw or reject the conclusion sought by the prosecution. Thomas, supra, 132 N.J. at 254-55; State v. Corby, 28 N.J. 106, 114 (1958), overruled on other grounds by State v. Taylor, 46 N.J. 316 (1966). Accordingly, when there is reliance on the statutory presumption created by the municipal map, the jury must be instructed that the statutory presumption does not have substantive effect but presents an inference which may or may not be drawn by the jury to find the ultimate fact that the school was used for school purposes on the date in question. Thomas, supra, 132 N.J. at 255-56. Here, however, the jurors were not told of the proper use of the map.
Furthermore, when defendant asserts that the State did not prove that a reasonable person would know that the property was actually used as school property at the time of the offense, the jury must be told that it is an issue and be provided with a proper instruction on the issue. White, supra, 360 N.J. Super. at 412. The recommended model jury charge for N.J.S.A. 2C:35-7 provides:
In addition to determining whether property is school property, you must determine the purpose for which it is used. You must decide whether the property is regularly, consistently, and actually used for school purposes, and whether the property's appearance would give an objectively reasonable person reason to know that it was used regularly, consistently, and actually for school purposes. [New Jersey Model Charge (Criminal), N.J.S.A. 2C:35-7 (approved January 6, 1992).]
The State points out that the school property in question in White was a community center, an ambiguous site which would require the model charge instruction, but its evidence in this case was that the Sacred Heart School was in fact a school so that the "school purposes" requirement was self-evident. See Thomas, supra, 132 N.J. at 257. The State further notes that unlike Tarver, supra, 272 N.J. Super. at 429-30, the defendant produced no testimony or other evidence that the building was not being used for school purposes on the date of the offense. However, the State bears the burden of proving every element of the offense, and the use of the property for school purposes at the time of the offense is an essential element of a school zone narcotics offense. Thomas, supra, 132 N.J. at 254; Ivory, supra, 124 N.J. at 591. As we stated in White,
The issue raised by defendant was whether "an objectively reasonable person could know that the school property was used regularly, consistently, and actually for school purposes." Ivory, supra, 124 N.J. at 592.
When that element of the offense is in dispute, the jury must be informed that it is in issue and be provided an appropriate instruction to resolve the issue. In fact, the model jury charge for the N.J.S.A. 2C:35-7 offense specifically recommends language for use when defendant contests whether an objectively reasonable person would know the property was used for school purposes. [White, supra, 360 N.J. Super. at 412.]
The trial judge was certainly aware that defendant contended the State had not met its burden of proof that the property in question was used for school purposes at the time of the offense. It was therefore the obligation of the court to adequately charge the jury on the issue. Id. at 412-13. We find that the omission of the language of the model charge as to the use of the property for school purposes was error that cannot be considered harmless. State v. Warren, 104 N.J. 571, 579 (1986); White, supra, 360 N.J. Super. at 413. Since the trial court's charge failed to adequately instruct the jury on this element of the offense critical to the jury's determination, we reverse defendant's conviction on the third count of the indictment.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's convictions as to counts one and two of the indictment. The case is remanded for a new trial on count three and re-sentence on counts one and two.
Affirmed in part. Reversed in part.
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