April 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAKAR SOLOMON SALEEM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-01-0086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 17, 2009
Before Judges Grall and Espinosa.
Defendant Shakar Saleem was convicted of second-degree conspiracy to possess marijuana in excess of twenty-five pounds with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:5-2. He was sentenced to a prison term of seven years with a three-and-one-half year parole disqualifier as well as the penalties required by law.
The State's principal witness in this case was Olinka Reyes, who had been indicted with defendant and testified pursuant to a plea agreement. Reyes testified that she had known the defendant since 2002 and was introduced by him to Mike Walker shortly thereafter. In late 2004, the defendant and Walker approached Reyes about receiving packages containing marijuana at the Glenpointe Condominium Complex in Teaneck where she worked as a security guard. Reyes agreed and suggested that the packages be shipped to a vacant apartment at the complex, 2 Alcott Court. Thereafter, either the defendant or Walker called Reyes to advise her of incoming shipments and Reyes intercepted the shipments when they were delivered to the complex by UPS. Reyes then notified defendant and he collected the packages. After Reyes received at least two shipments, defendant paid her approximately $2000.
On April 13, 2005, defendant advised Reyes that a package was due to arrive from California on the next day. However, by this time, 2 Alcott Court was no longer vacant. On the same date, the Teaneck Police Department learned from California authorities that an intercepted package was being shipped from California to Teaneck via UPS. The package contained 23.3 pounds of marijuana and was addressed to "Sharon Crane" at 2 Alcott Court.
Teaneck Police planned a controlled delivery to the Glenpointe apartment on Friday, April 15, 2005, and obtained an anticipatory search warrant for that address. The UPS driver for that route advised that he had another, identical package addressed to "Sharon Crane" at the same apartment on his truck for delivery. The police took possession of the second package and found that it contained 24.4 pounds of marijuana. Record checks for 2 Alcott Court revealed that the name "Sharon Crane" was fictitious.
When the package did not arrive during her shift, Reyes called the defendant. He suggested that it might be delivered later. Defendant picked up Reyes at the end of her shift to drive her to the airport for a weekend visit to relatives in Atlanta. While driving around the complex in an unsuccessful attempt to locate the UPS truck, defendant telephoned Walker to explain that the package had not arrived.
They later located the UPS truck and asked the driver whether there were any packages for 2 Alcott Court. The driver denied having any package for that address. He recognized Reyes as the security guard from Glenpointe and recalled delivering packages to her in the past, but could not clearly see the face of the other person in the vehicle.
This information was relayed to the police. Posing as a UPS delivery person, Detective Linda McNulty of the Bergen County Prosecutor's Office Narcotics Task Force drove to Glenpointe. She told a security guard, Daniel Gunn, that she had a package for 2 Alcott Court. When she tried to deliver the package to that address, a construction worker told her that there were no "Cranes" at that address and that the owners were not there. Detective McNulty returned to the security gate, where she again spoke to Gunn. He told her that Reyes was on the phone with him and had inquired about the package. Detective McNulty returned to the Teaneck Police Department.
Later, Reyes called Gunn and told him that "a resident by the name of James" would be coming to the gatehouse to pick up the package. Gunn told Reyes that the package had come, but he did not accept it because the circumstances of the delivery were "suspicious." Defendant was on the phone with Walker at that time, allowing both of them to hear the conversation between Reyes and Gunn. Defendant attempted to reassure Reyes that everything would be alright. In a telephone conversation that weekend, Walker told Reyes that he had lost money because a few of his shipments had been caught. Upon her return to New Jersey, defendant and Walker instructed her that the package was "dead" and she should not accept it.
On April 18, 2005, Detective McNulty returned to Glenpointe with a UPS delivery man while Reyes was on duty. After another unsuccessful attempt to deliver the package to 2 Alcott Court, the officer asked to leave the package with Reyes. She refused.
Reyes was arrested by the Teaneck Police Department later that day. She agreed to cooperate and described her involvement in a conspiracy with defendant and Walker to ship packages of marijuana from California to the Glenpointe apartment.
Reyes called defendant from the police station, told him that the packages had arrived and that he should pick them up. Defendant responded, "I'll get back to you in a minute," and hung up the phone. A few minutes later, Reyes called defendant a second time. Defendant again stated that he would "get back to Reyes in a minute." However, the defendant did not call.
At approximately 4:00 p.m., Teaneck police brought Reyes back to the Glenpointe gatehouse. Craig Douglas, the security guard on duty, was told to leave the booth. He went across the street to the Marriott Hotel, where he was able to see both the security gatehouse and undercover police officers in the vicinity. While Douglas was sitting in front of the hotel, defendant arrived and told him that he was working out at the hotel spa. Douglas asked defendant if he was picking up Reyes. Defendant responded, "no," and, after chatting for a few minutes, he left.
Reyes was still in the gatehouse with the Teaneck police officers when she received a phone call from defendant and Walker. Defendant asked who the people in the booth were. Walker asked whether the package looked "untouched." Reyes explained that it was just her supervisor and a property manager and again asked defendant to come and pick up the packages as soon as possible. Neither defendant nor Walker ever came to collect the packages.
On May 5, 2005, defendant was arrested pursuant to a warrant at his mother's house in Teaneck and transported to the Teaneck Police station for processing. Defendant was taken to an interview room where he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and signed a Miranda Warning Form. After being told that he was charged with the shipment of parcels containing suspected marijuana, defendant stated: "Yes . . . Olinka Reyes was involved with the . . . parcels."
A Miranda hearing was conducted. The court found that the police had "scrupulously honored the defendant's rights" and that defendant had volunteered "as statement in culpating another individual." As a result, the court ruled that the statement was admissible.
At trial, the State presented Detective Michael Perez of the Bergen County Prosecutor's Office as an expert in narcotics and their distribution. Perez testified that even individuals highly addicted to marijuana would not consume 47 pounds of the drug and, therefore, it was his opinion that the individuals on the receiving end of the shipments possessed the drug with the intent to distribute it. Detective Perez also testified that the use of a rental car, a fictitious name as the addressee, and a vacant apartment as the receiving location were common practices used by narcotics traffickers to conceal their identity and the existence of the operation.
Over objection, the State was permitted to introduce telephone records of Olinka Reyes which showed calls placed to and from her cell phone on April 18, 2005. Reyes testified that the records were for her cell phone. She identified one number on the record as being defendant's and another as being Walker's. The State also presented Israel Lamboy, who worked for Freedom Rentals. Lamboy identified business records that showed that defendant had rented a Nissan Sentra on April 15, 2005, and returned it ten days later.
Three character witnesses, Lesvia Castro, Lois Braithwaite, and Warren Woodberry, testified that defendant had a reputation in the community for being a law abiding citizen. Defendant also presented three alibi witnesses: his mother, Pasina Saleem, Charity Lee, and Lois Wallace. The alibi witnesses testified that defendant was baby-sitting Charity Lee's children and was not near the Glenpointe complex on the afternoon of April 18, 2005.
On appeal, defendant presents the following arguments:
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE EVIDENCE WAS INSUFFICIENT TO PROVE A CONSPIRACY INVOLVING BOTH PACKAGES; BECAUSE INTENT TO DISTRIBUTE WAS PROVED BY AGGREGATING THE AMOUNT OF MARIJUANA IN THE TWO PACKAGES, THE EVIDENCE WAS INSUFFICIENT TO PROVE CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE.
THE ADMISSION OF A STATEMENT DETECTIVE EGBERT CLAIMED APPELLANT MADE AFTER THE ADMINISTRATION OF MIRANDA RIGHTS BUT IN THE ABSENCE OF A WAIVER OF THOSE RIGHTS VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION.
OLINKA REYES' TELEPHONE RECORDS WERE NOT PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
THE COURT BELOW ERRED IN PERMITTING BROAD RANGING EXPERT TESTIMONY BY A NARCOTICS EXPERT.
THE COURT ERRED IN EXCLUDING TESTIMONY OF A DEFENSE WITNESS THAT WOULD HAVE IMPEACHED OLINKA REYES WITH RESPECT TO HER DENIAL OF A PERSONAL RELATIONSHIP WITH MICHAEL WALKER.
THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT, WHICH DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT (PARTIALLY RAISED BELOW).
THE SEVEN YEAR SENTENCE WITH A THREE YEAR PAROLE DISQUALIFIER WAS EXCESSIVE AND UNJUSTIFIED BY THE COURT'S SENTENCING DETERMINATIONS.
After carefully considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the brief comments that follow.
Defendant denied making the statement attributed to him following his arrest and claims that it was admitted in violation of his constitutional rights. The record reflects that he was advised of each of his rights pursuant to Miranda, supra, and replied that he understood those rights. In any event, defendant's incriminating statement was made, not in response to any interrogation, but following the detective's statement of the charges against him, part of the information "critically important" to a waiver of his rights. See State v. A.G.D., 178 N.J. 56, 68 (2003). As defendant's statement was not "the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response," Rhode Island v. Innis, 446 U.S. 291, 303, 100 S.Ct. 1682, 1691, 64 L.Ed. 2d 297, 309 (1980), State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990), the court correctly concluded that the statement was voluntary.
Defendant also contends that the scope of the expert testimony presented by the State was impermissibly broad. An expert is permitted to give an opinion as to intent or purpose regarding drug evidence "as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge." State v. Reeds, 197 N.J. 280, 291 (2009) (quoting State v. Odom, 116 N.J. 65, 78-79 (1989)). Even if improper expert testimony is elicited, a reversal of defendant's conviction is warranted only if that testimony was sufficiently prejudicial to have the capacity to bring about an unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006); State v. Thompson, 405 N.J. Super. 76, 81 (App. Div. 2009). Defendant does not allege that the expert testimony had such capacity but only contends that the evidence "might have affected the jury's verdict." However, the expert's testimony here fell within the parameters defined in Reeds, Odom and Nesbitt.
The record regarding the defendant's sentencing requires some clarification. Appellate review of a sentence entails the following determinations:
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493 (1996).]
The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to "take into account a mitigating factor that is fully supported by the evidence," but "must [include such factor as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 504-05 (2005).
In stating the reasons for sentence here, the court identified four aggravating factors: (1) the nature of the offense, N.J.S.A. 2C:44-1a(1); (2) the seriousness of harm, N.J.S.A. 2C:44-1a(2); (3) the likelihood that the defendant would commit another offense, N.J.S.A. 2C:44-1a(3), and (4) the need to deter the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Each of these findings was adequately supported by the record.
The judgment of conviction includes an additional aggravating factor that the court did not mention at sentencing, the defendant's "prior record," N.J.S.A. 2C:44-1a(6). However, at the time he was sentenced, the defendant was thirty-seven years old and had no prior indictable convictions. These facts fully supported the finding of a mitigating factor, i.e., that the "defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1b(7), and not the aggravating factor reflected on the judgment of conviction.
The court identified only one mitigating factor, excessive hardship, N.J.S.A. 2C:44-1b(11) in its initial remarks and on the judgment of conviction. If the court's deliberative process were so limited, it would appear that the court failed to take into account a mitigating factor that was clearly supported by the record. That was not the case, however.
A review of the court's entire remarks at sentencing shows that the court considered defendant's "prior record" as a mitigating factor and not as an aggravating factor. Although it was not explicitly enumerated as a mitigating factor, the court explained that the defendant's limited prior criminal involvement, consisting of a disorderly person's offense, was one of the reasons that a more severe sentence was not imposed. Since the court did not decline to take the defendant's lack of a prior criminal history into account, the reference to "prior record" on the judgment of conviction as an aggravating factor rather than as a mitigating factor was apparently a mistake. Where there is a disparity between a trial court's oral opinion and the contents of a judgment of conviction, the court's oral opinion controls. State v. Vazquez, 374 N.J. Super. 252, 270 (App. Div. 2005); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). Therefore, the error here was not in the court's findings of aggravating and mitigating factors but only in the recitation of those findings in the judgment of conviction. We find that the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence and that the defendant's lack of a prior criminal history was appropriately included as a mitigating factor in the deliberative process.
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