April 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARKI CLARK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-0700; Accusation No. 07-08-0615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2009
Before Judges Graves and Grall.
Defendant Barki Clark appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was found guilty of two counts of third-degree possession of controlled dangerous substances (CDS), heroin and cocaine, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); two counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; two counts of second-degree possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; third-degree possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5b; second-degree possession of a firearm for the purpose of using it unlawfully against the person of another, N.J.S.A. 2C:39-4a; second-degree possession of a firearm while in the course of committing the crime of possession of CDS with intent to distribute, N.J.S.A. 2C:39-4.1a; aggravated assault by purposely, knowingly or recklessly causing bodily injury to Detective Ludwig, N.J.S.A. 2C:12-1b(1); and, aggravated assault by knowingly pointing a firearm at Detective Armstrong under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1b(9). The jury found defendant not guilty of knowingly pointing a firearm at Detective Ludwig under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1b(9). After properly merging defendant's convictions, the trial court sentenced defendant to an aggregate seventeen-year term of incarceration subject to consecutive three-year terms of parole disqualification.*fn1 The court also imposed the required fines, penalties, assessments and license suspension.*fn2
The State's evidence was as follows. On November 3, 2005, Detective Armstrong of the Jersey City Police Department conducted surveillance at the Booker T. Washington housing complex, a multi-building, public housing site. The detective was in an unmarked car, wearing plain clothes, and working with other undercover and uniformed detectives situated nearby. It was dark, but within the housing complex there were street lights, lights on the exterior of the separate buildings, flood lights and a well-lit basketball court.
Detective Armstrong noticed a group of males standing between the entrances of two of the buildings in the complex and sharing hand-rolled cigarettes. Defendant was among the members of the group. As Detective Armstrong watched, a woman approached and handed money to one of the men. After taking her money, that man pointed to defendant and the woman went to him and took the small, white object he handed her. The detective also saw defendant give a white object to a second person who approached the group and gave money to defendant's companion. The transactions both took place within 1000 feet of a school.
Detective Armstrong contacted the officers who were ready to assist him, directed them to the group, left his unmarked car and moved closer to the group of men he was watching. As the other officers entered the complex, displayed their badges and directed the men to get on the ground, defendant ran across the basketball court and toward Detective Armstrong. Although Detective Armstrong directed defendant to stop, defendant kept running.
Detective Armstrong followed defendant. As Detective Armstrong gained ground, defendant headed back toward the center of the complex. Still in pursuit, the detective saw defendant take something from inside his coat. When defendant turned, the detective saw that he was holding a black gun. At that point, Detective Ludwig arrived and defendant pointed the gun at him. Detective Ludwig kicked at defendant's arm and defendant lost his balance, but held onto the gun. When Detective Armstrong confronted him, defendant, holding the gun with his hand in position to pull the trigger, placed the barrel within a foot of the detective's face. Detective Armstrong ducked and tackled defendant. They struggled. When Detective Ludwig joined Detective Armstrong in his effort to place defendant under arrest, defendant punched Detective Ludwig in the face and head, leaving Ludwig with bumps and scrapes.
After the arrest, Detective Ludwig recovered fifty-three bags of heroin and thirty-eight vials of cocaine from defendant's right jacket pocket. Defendant's handgun was also recovered. It was operable and loaded, and defendant did not have a permit authorizing him to carry the weapon.
Officer Wolfe, a Jersey City police officer who worked in the Narcotics Division for eighteen years and was not involved in this investigation, was qualified as an expert in illegal narcotics. He explained that people who sell drugs in open areas are aware of surveillance and divide the labor to create diversions and avoid detection. He further noted that those who sell CDS in open areas often carry guns to protect their "turf" and product. He described the packaging of heroin and cocaine sold to individuals and explained the significance of the labels on the individual bags of heroin and the colored caps on the individual vials of cocaine.
Defendant raises the following issues on appeal:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY [U.S. CONST. amend. XIV; N.J. CONST. art. 1, ¶ 1] WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION EVEN THOUGH THERE WERE MULTIPLE CROSS-RACIAL IDENTIFICATIONS AND IDENTIFICATION WAS THE FUNDAMENTAL CONTESTED ISSUE IN THE CASE.
II. THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT THE DEFENDANT HAD POSSESSED THE GUN, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY [U.S. CONST. amend. XIV; N.J. CONST. art. 1, ¶ 1]. (Not raised below).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY [U.S. CONST. amend. XIV; N.J. CONST. art. 1, ¶ 1] WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS.
(Not raised below).
IV. THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC HOUSING FACILITY) BEYOND A REASONABLE DOUBT.
V. [DEFENDANT'S] SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
C. THE TRIAL COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
The arguments presented in support of the claims raised in Points I, II, III and IV lack sufficient merit to warrant discussion in a written opinion beyond the brief comments that follow. R. 2:11-3(e)(2).
An instruction on cross-racial identification was not required in this case. That instruction "should be given only when... identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." State v. Cromedy, 158 N.J. 112, 132 (1999). Here, defendant was apprehended while fleeing from the police and placed under arrest by the detectives who pursued him and arrested him while he was still in possession of the gun and drugs at issue. Thus, their identification testimony was neither critical nor uncorroborated. While Detective Armstrong was the only witness able to identify defendant as the person involved in the transactions he observed, defendant and Detective Armstrong are of the same race and defendant's possession of a substantial quantity of cocaine and heroin corroborated his identification of defendant as the member of the group who delivered what appeared to be drugs to two buyers.
Because the jury acquitted defendant of aggravated assault by pointing a gun at Detective Ludwig, it is clear that any error in that jury instruction did not produce an unjust result.
R. 2:10-2. Moreover, defendant's objection to that instruction is based on a literal reading of one isolated sentence in the relevant instruction. While that sentence, viewed without reference to the remainder of the instruction, might be deemed misleading, when read in context, and in light of the verdict, it is apparent that the jurors could not, and did not, assign the meaning defendant suggests. State v. Wilbely, 63 N.J. 420, 422 (1973).
Points III and IV of defendant's brief concern the competency and adequacy of the testimony establishing his possession of the drugs within the requisite distance of a public housing project and school. But, a certified map showing the school zones in Jersey City was introduced without objection and Detective Armstrong's testimony established that all of the action about which Detective Armstrong testified took place on property that was part of and surrounded by the separate buildings of a single public housing complex. His testimony on that point was not challenged or disputed.
This court's role in review of sentences imposed by the trial court is narrow. State v. Cassady, ___ N.J. ___, ___ (2009) (slip op. at 19-20). We must affirm so long as the trial court "observe[d] the procedural protections imposed as part of the sentencing process" and has not imposed a sentence that "'shocks the judicial conscience.'" Id. at ___ (slip op. at 25).
In this case, the trial court's findings relevant to the statutory aggravating and mitigating factors and consecutive sentences are more than adequately supported by the record and fully consistent with an informed, conscientious and reasoned exercise of the trial court's judicial discretion in accordance with the statutory factors and standards of State v. Yarbough, 100 N.J. 627, 645-47 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Thus, there is no principled basis for a shock to the judicial conscience. Accordingly, we affirm the sentence.
We note that the arguments defendant makes with respect to his sentence are largely based on a discrepancy between the reasons stated at the time of sentencing and the judgment of conviction. The judgment reflects that the sentence is based on the aggravating factors set forth in N.J.S.A. 2C:44-1a(3),(6),(9), and a mitigating factor based on remorse. At the time of sentencing, however, the court found mitigating factors based on defendant's age and lack of prior convictions and aggravating factors based on "nature and circumstance of the offense," N.J.S.A. 2C:44-1a(1), a risk of re-offense demonstrated by what defendant did in the course of this criminal episode, N.J.S.A. 2C:44-1a(3), and a need to deter, N.J.S.A. 2C:44-1a(9). As we understand the law, "[a] trial court's oral opinion normally controls over an inconsistent judgment of conviction." State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005); State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).