July 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM SHEPARD, A/K/A WILLIAM BRYANT SHEPHERD, WILLIAM SHEPERD, WILLIAM SHEPHERD, WILLIAM SHEPHARD, WILLIAM B. SHEPHERD, MARCUS B. GREGORY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2009
Before Judges Parrillo, Lihotz and Messano.
Defendant William Shepard and co-defendant Marvin Gregory were charged with various drug related and other offenses in Middlesex County Indictment No. 06-02-00156. Specifically, defendant was charged with the third-degree crimes of conspiracy to possess with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), (count one); possession of a CDS (heroin) , N.J.S.A. 2C:35-10a(1) (count six); possession with intent to distribute a CDS (heroin), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); resisting arrest, N.J.S.A. 2C:29-2a(3) (count eight); and the fourth-degree offense of obstructing the administration of law or other government function, N.J.S.A. 2C:29-1 (count nine).
On November 16, 2006, defendant's pre-trial motion to suppress was denied. Following a jury trial, defendant was convicted on counts one, six, seven, and nine and acquitted on count eight.*fn1 Defendant's motion for a new trial was denied and the State's motion for an extended term, pursuant to N.J.S.A. 2C:43-6(f), was granted. After merging counts one and six into count seven, defendant was sentenced to eight years imprisonment, with a four-year period of parole ineligibility, and a consecutive one-year term on count nine.
On appeal defendant presents these arguments for our consideration:
DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED WHERE THE SEARCH WAS CONDUCTED WITHOUT A WARRANT AND NO EXCEPTION TO THE WARRANT REQUIREMENT EXISTED.
THE POLICE WERE NOT JUSTIFIED IN ENTERING THE APARTMENT ON THE PREMISE THAT THEY WERE IN PURSUIT OF A FLEEING FUGITIVE.
NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE WARRANTLESS ENTRY INTO, AND SUBSEQUENT SEARCH OF THE RESIDENCE, AND ANY EXIGENCY THAT MAY HAVE EXISTED WAS "POLICE-CREATED." POINT I(C): NO COMMUNITY CARETAKING EXCEPTION TO THE WARRANT REQUIREMENT EXISTED UNDER THE FACTS OF THIS CASE.
THE COURT ERRED IN PERMITTING LT. SCHUSTER TO TESTIFY AS AN EXPERT WITNESS - THE DEFENDANT WAS NOT PROPERLY PLACED ON NOTICE OF THE INTENT TO CALL LT. SCHUSTER AS AN EXPERT, CAUSING UNFAIR SURPRI[S]E AND UNDUE PREJUDICE TO THE DEFENDANT, RESULTING IN THE DENIAL OF A FAIR TRIAL.
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE'S EXPERT WAS PERMITTED TO GIVE AN ULTIMATE OPINION REGARDING GUILT OF THE DEFENDANT.
THE SENTENCE IMPOSED WAS EXCESSIVE DUE TO AN IMPROPER WEIGHING OF AGGRAVATING FACTORS. Additionally, in a separately filed pro se supplemental brief, defendant argues:
THE POLICE HAD PROBABLE CAUSE AND AMPLE TIME TO SEEK A SEARCH WARRANT BEFORE ARRIVING AT THE APARTMENT AND AGAIN WHEN THEY SAW DEFENDANT ENTER THE APARTMENT BUILDING.
THE TRIAL JUDGE ERRED BY NOT PROPERLY STATING ON [THE] RECORD WHY THERE WERE NO MITIGATING FACTORS PURSUANT TO [N.J.S.A.] 2C:44-1(b) AND BY OVERLOOKING ALL MITIGATING FACTORS B(1) AND B(2).
THE TRIAL COURT ERRED IN ITS JURY CHARGE ON COUNT 5 (OBSTRUCTION OF JUSTICE)
TRIAL JUDGE ERRED IN DENYING DEFENDANT'S REQUEST FOR ACQUITTAL ON COUNT (5) OBSTRUCTION OF JUSTICE, ON SENTENCING.
THE SENTENCE IMPOSED WAS EXCESSIVE AND UN-STATUTORY DUE TO THE DOUBLE-COUNTING OF AGGRAVATING FACTORS.
We have considered the arguments raised in light of the record and applicable legal standards. We affirm the denial of defendant's motion to suppress and affirm the convictions on counts six, seven and nine. We reverse defendant's conviction on count one because the testimony of the State's expert exceeded what was permissible in a drug prosecution trial. However, because count one was merged with count seven, a conviction we affirm, there is no need for resentencing. We remand only for amendment of the Judgment of Conviction.
We recite the facts surrounding defendant's arrest as presented through police testimony during the suppression hearing. On December 13, 2005, members of the New Brunswick Police Department received a tip from a reliable confidential informant that defendant would be selling heroin and cocaine to the residents of apartment 2A located at 5 Hoffman Boulevard. Upon checking, Lieutenant Paul Shuster located outstanding warrants issued in October 2005 for defendant's arrest on charges of aggravated assault and weapons offenses.
At 7 p.m., Lt. Shuster, detectives from the New Brunswick Police Department Anti-Crime Unit and members of the Middlesex County Narcotics Task Force, arrived outside the apartment building, wearing plain clothes with their badges visible, and driving unmarked police vehicles. Lt. Shuster, who knew defendant and, therefore, could recognize him, set up surveillance to effectuate defendant's arrest outside the multi- unit apartment building. Several officers were stationed in an unmarked police van parked approximately one hundred and fifty feet from the entrance of the apartment building. Additionally, a group of officers was stationed in the front and two officers stood ready at the rear of the building.
At 7:25 p.m. defendant, Gregory, and a third man, Demetrius Richardson, were seen standing outside the apartment building. A police check verified warrants for the arrest of Gregory and Richardson were outstanding. Before police could arrest defendant, the three entered the building. Approximately forty-five minutes later, Richardson exited the building and walked past the surveillance van. He then turned, walked back toward the building and began talking on his cellular telephone. Lt. Shuster believed Richardson recognized the police surveillance van and was warning defendant of the officers' presence. Richardson was detained.
Lt. Shuster directed a group of officers to enter through the front of the apartment building. Several attempts to enter by knocking and ringing the first and second floor buzzers proved unsuccessful. The officers stationed in the rear of the building radioed Lt. Shuster to inform him defendant and Gregory had begun leaving the apartment using the fire escape ladder outside a rear window. The officers at the apartment's front entrance rammed the outer common door and then proceeded to apartment 2A. The police were met on the second floor landing by Herv Byron, who acknowledged he was the tenant in 2A. Police told Byron to open the door to the apartment, but he explained he had been locked out.
Lt. Shuster was again radioed and told defendant and Gregory had climbed nearly half way down the fire escape, saw Officer Yurkovic and Detective Plowucha waiting at the bottom, and proceeded to climb back to the second floor window to re-enter the apartment. Officer Plowucha began climbing the fire escape ladder in pursuit.
Lt. Shuster commanded the officers outside apartment 2A to use a battering ram to enter the apartment. After ramming the door, the police announced their presence and proceeded to the bedroom containing window access to the fire escape. Defendant was found in the bedroom closet, and Gregory was hiding under the bed. After a brief struggle, they were both placed under arrest and handcuffed. The police recovered four packets of heroin from the floor of the closet and sixteen packages of cocaine behind the bed near Gregory.
Prior to trial, defendant moved to suppress the drug evidence seized by the police at the time of his arrest. He contends the court erred in determining the exigent circumstances exception to the warrant requirement was applicable to justify the police conduct when effectuating the arrest warrant. Defendant suggests he was a guest of apartment 2A. Therefore, the warrantless entry into a private residence was unlawful, requiring suppression of all evidence seized. See State v. Johnson, 193 N.J. 528, 554 (2008) (citing Steagald v. United States, 451 U.S. 204, 216 n6, 101 S.Ct. 1642, 1650, 68 L.Ed. 2d 38, 49-50 (1981)) ("[B]efore entering a third-party's home to execute an arrest warrant, [police] must have either consent, a search warrant, or exigent circumstances."); see also State v. Bell, 388 N.J. Super. 629, 639 (App. Div. 2006) (citing State v. Miller, 342 N.J. Super. 474, 495 (App. Div. 2001)), certif. denied, 189 N.J. 647 (2007).
Defendant also argues the subsequent search and seizure of CDS was unlawful as any exigency was police-created, thereby defeating application of the exception, and all other recognized warrant exceptions were inapplicable. We find no factual or legal basis for these arguments.
In reviewing a motion to suppress, we only determine whether the trial court's factual findings and legal conclusions are reasonably supported by the credible evidence present in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). "[S]o long as those findings are 'supported by sufficient credible evidence in the record[,]'" we uphold the trial court's decision. State v. Elders, 192 N.J. 224, 243 (2007) (citing Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562 (App. Div. 1990). Also, we defer to a trial court's factual determinations, "'which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 161). "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment[.]" State v. Emery, 27 N.J. 348, 353 (1958). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).
"Warrantless searches, particularly in a home, are presumptively unreasonable and invalid unless justified by a recognized exception to the warrant requirement." State v. Bolte, 115 N.J. 579, 585, cert. denied, 493 U.S. 936, 110 S.Ct. 330, 107 L.Ed. 2d 320 (1989). One recognized exception is exigent circumstances. State v. Patino, 83 N.J. 1, 7 (1980).
"The existence of probable cause and exigent circumstances trumps the right of privacy and the requirement of a search warrant." State v. Laboo, 396 N.J. Super. 97, 104 (App. Div. 1999) (citing Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed. 2d 782, 787 (1967)).
"The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." State v. Pena-Flores, 198 N.J. 6, 11 (2009). When a defendant retreats or causes some elements of a chase, and thereby causes a "hot pursuit" by police, the United States Supreme Court has stated the situations may create a "realistic expectation that any delay would result in destruction of evidence[,]" thus justifying a warrantless entry. Bolte, supra, 115 N.J. at 589 (quoting United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed. 2d 300, 305 (1976)).
Pertinent factors in making the determination include "the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination." State v. Deluca, 168 N.J. 626, 632-33 (2001); State v. Stott, 171 N.J. 343, 358 (2002). Generally, "[a]s long as the officers acted reasonably in executing the warrant, . . . then the arrest and any evidence seized incident to the arrest should be admitted." State v. Jones, 143 N.J. 4, 17 (1995); State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974).
Testimony at the suppression hearing disclosed the police knew defendant committed violent crimes involving weapons for which he was to be arrested. Additionally, a confidential informant linked defendant to the illegal distribution of narcotics operating from apartment 2A. The police reasonably believed Richardson alerted defendant to the police presence outside the apartment. The attempt to flee through the rear window and fire escape required the police to act quickly. Once defendant and Gregory spotted police at the base of the fire escape, causing them to react by reclimbing the escape ladder and return to the building, a realistic expectation arose where delay would result in the destruction of evidence. The subsequent retreat toward the apartment, while pursued by Detective Plowucha, further compromised the overall safety of the police and the public.
Thus, viewing the totality of all circumstances presented, when a police officer has probable cause to believe the delay involved in procuring an arrest warrant will gravely endanger the police or the public, or will result in the suspect's escape or the destruction of evidence, and the suspect flees to a private residence, exigency is established. This allows the police to enter the residence without first procuring a warrant. Jones, supra, 143 N.J. at 19-20.
In summary, the exigent circumstances justifying the warrantless entry into apartment 2A resulted from defendant and Gregory's flight, coupled with the officers' valid arrest warrant for violent crimes, and the knowledge evidence could be destroyed and persons injured. We conclude, given the fluidity of the situation in this matter, securing a search warrant was not feasible. The court properly applied the exigent circumstances exception under the facts of this case and police entry into apartment 2A was permissible.
Additionally, we reject defendant's related argument suggesting the exigent circumstances were police-created, thus defeating the exception to the warrant requirement. Here, there is no basis to disturb the court's findings that Lt. Shuster and the other officers acted in an objectively reasonable manner. Ibid. Therefore, even if "the exigent circumstances that justified entry into the apartment may have been 'police- created,' they arose as a result of reasonable police investigative conduct." Laboo, supra, 396 N.J. Super. at 106.
Finally, defendant challenges the constitutionality of the warrantless drug seizures. We reject this argument and determine the drugs found in plain view were properly admitted at trial.*fn2 State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). No warrant for seizure of the drugs was required, as the CDS was plainly visible. The police found the drugs as they removed defendant and Gregory from their respective hiding places in the closet and under the bed. A search of the premises was neither conducted nor necessary. Therefore, defendant's challenge on this issue lacks merit.
Defendant next advances arguments challenging the testimony of the State's narcotics expert. The claimed error is two-fold: first, allowing Lt. Shuster to testify as an expert was not properly disclosed until the day before trial, causing unfair surprise; and, second, the officer impermissibly offered an opinion as to defendant's guilt.
On the day prior to commencement of the trial, the prosecutor advised he intended to offer Lt. Shuster not only as a fact witness, but also as an expert to testify on "the packaging of the seized heroin" to support the distribution charge. The State listed Lt. Shuster as a witness, but had not previously disclosed he would present expert opinion. Defense counsel sought a N.J.R.E. 104 hearing to review Shuster's proposed expert testimony, arguing: this is highly prejudicial to [defendant] to have Lieutenant Schuster testify as an expert witness because he is for purposes of the state's case, the main fact witness as it relates to the surveillance that was done here, the arrest. He actually charged [defendant] with possession with intent to distribute. So, how it is that he can render an independent, unbiased opinion with respect to these categories that we would ask any expert witness to speak to, in terms of the weight of the CDS and the packaging, when he was directly involved in the signing of the criminal complaint that led to this indictment?
Defense counsel further argued Lt. Shuster submitted no report and the State failed to supply his curriculum vitae impeding his ability to assess his expertise. The trial judge denied the request for a hearing. Following voir dire, the court admitted Lt. Schuster as an expert in narcotics possession and distribution in Middlesex County.
On appeal, defendant limits his argument to the State's failure to provide sufficient notice of the proposed expert's testimony, as required by Rule 3:13-3(c)(9). He maintains "had [he] received proper notice of the proposed expert witness, he could have better prepared his cross-examination of the witness. Further[,] the defense would have retained an expert of its own to meet the allegations State's expert." We are not persuaded by these contentions.
The decision to allow an expert's testimony rests within the discretion of the trial court. Here, defense counsel's proffered need for the pretrial hearing was to "incorporate [the proposed testimony] in his opening statement." Counsel acknowledged his familiarity with Lt. Shuster's long-standing work with the police department's narcotics unit and questioned him during the suppression hearing. The State disclosed the limited scope of the proposed expert testimony, and the trial judge ordered the State to supply Lt. Shuster's report. At trial, the court separated all of the factual testimony from Lt. Shuster's expert testimony.*fn3 A total of six days elapsed between Lt. Shuster's two appearances. Finally, defendant was afforded extensive cross-examination.
It is preferred that the State fully disclosed its intention to elicit expert testimony from a fact witness long before commencement of trial. However, in this matter, Lt. Shuster's dual role was not unanticipated. We conclude defendant did not suffer prejudice, and the trial court did not abuse its discretion in admitting the expert testimony of Lt. Shuster, notwithstanding the State's short notice. State v. Toro, 229 N.J. Super. 215, 223-24 (App. Div.), certif. denied, 118 N.J. 216 (1999).
During trial, Lt. Shuster was recalled as an expert witness "in the field of narcotics possession, possession with intent to distribute, and distribution." Defendant argues Lt. Shuster impermissibly invaded the province of the jury and opined on the ultimate issue of his guilt. State v. Reeds, 197 N.J. 280, 285 (2009); State v. Odom, 116 N.J. 65, 77 (1989). He seeks a new trial.
Lt. Shuster was presented and qualified as an expert. He had thirty-four years experience centered on illegal narcotics investigations and had testified in Superior Court as a State expert in 129 cases. Mirroring the facts of the case at hand, the State posed hypothetical questions regarding methods used by street drug vendors, the quantity of narcotics, their specific packaging, and estimated value. Lt. Shuster's expert opinion regarding the inferences likely drawn from those facts was sought. His testimony was admitted to prove defendant possessed the narcotics for distribution. N.J.R.E. 704; Odom, supra, 116 N.J. at 78-79; State v. Montesano, 298 N.J. Super. 597, 619 (App. Div.), certif. denied, 150 N.J. 27 (1997).
It aids understanding of defendant's challenge on appeal to examine portions of Lt. Shuster's direct examination. Applying the factual scenario in the form of a hypothetical, Lt. Shuster was asked to consider that one individual discarded fourteen packets of cocaine and had two more in his shirt pocket, and a second individual "discard[ed] four packets of heroin, which have a stamp on them of the convenience store Seven Eleven . . . and place[d] them in a closet, has $40 cash on him, and a cell phone that is locked," and also to consider the two individuals do not reside in the apartment where the police located them. He was then asked this question:
Based on these particular facts, would you be able to render an expert opinion on whether or not either or both of the individuals in that scenario possessed -- and I'm going to show you S-1 and S-2 for identification -- possess these items for personal use or distribution?
Lt. Shuster responded affirmatively. The colloquy continued:
Q: And based on the scenario that I just told you, Lieutenant, what is your opinion?
A: I believe that the two men who had the drugs were going to sell them.
Q: And what do you base that opinion on?
A: The overall circumstances. First of all, four bags of heroin, in and of itself, is not a lot of heroin, but you have the second individual has 16 packets of cocaine. Sixteen packets of cocaine is in excess of what a person would possess for personal use.
You have three men, as you described, coming to a house not in a high-crime area. Obviously somebody is waiting for them at the door, since they gain immediate access. One man comes out, perhaps to act as a lookout, spots an unmarked police car, makes a phone call, whereupon his two companions try and escape out the back. Based on the overall circumstances, as I had testified previously, the things I consider --
It would appear that these individuals came to that house to make a delivery. As I said, 4 bags of heroin is not a lot of heroin, but 16 bags of cocaine is a significant quantity of heroin [sic] for one person . . . . Sixteen packets of cocaine is in excess of what a person would have for personal use. It would be more for distributive purposes. Since these men are together, obviously they came together, they tried to escape together, I believe they were conspiring together to sell CDS.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
N.J.R.E. 702 permits expert testimony where such testimony will assist the jury in understanding the evidence or determining a fact in issue. The Supreme Court has long held that expert testimony regarding "drug trade practices" is generally to be admitted, provided the trial court is satisfied such testimony will assist the jury in resolving a material dispute of fact. Reeds, supra, 197 N.J. at 290; State v. Berry, 140 N.J. 280, 300 (1995). The Court has also approved the use of a hypothetical question as an appropriate vehicle through which an expert could testify in respect of inferring intent or purpose when drugs are possessed under certain circumstances. Id. at 191; State v. Summers (Summers II), 176 N.J. 306, 311 (2003).
An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged, Odom, supra, 116 N.J. at 77, but may express an opinion that "characterizes defendant's conduct based on the facts in evidence in light of his specialized knowledge, . . . even though it embraces ultimate issues that the jury must decide." Odom, supra, 116 N.J. at 79; see also State v. Nesbitt, 185 N.J. 504, 511 (2006) (citing Summers II, supra, 176 N.J. at 312) (Odom is the foundational New Jersey case on expert testimony incorporating the use of hypothetical questions about drug possession and distribution activities.).
The Court has placed limitations on the use of the mirror-image hypothetical, emphasizing the jury's role as factfinder. Reeds, supra, 197 N.J. at 292.
Obviously, the expert must walk a fine line.
His or her opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," [Odom, supra, 116 N.J.] at 81, but it cannot contain an explicit statement that "the defendant is guilty of the crime charged under the statute." Id. at 80. [Summers II, 176 N.J. at 314-15.]
Odom states the use of a hypothetical adduced from the facts presented at trial and the query to the expert must focus on the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs . . . , the import of circumstances surrounding possession, the conduct of the possessor and the manner . . . drugs may be secreted or otherwise possessed for personal use or [distribution]. [Odom, supra, 116 N.J. at 81-82 (quoting State v. Odom, 225 N.J. Super. 564, 573 (App. Div. 1988).]
In the present case, the prosecutor employed a factually aligned hypothetical when eliciting Lt. Shuster's opinion on distribution. The use of a hypothetical question allowed Lt. Shuster's specialized knowledge on the nuanced techniques utilized by drug dealers to be presented to the jury. His testimony on this issue fairly falls within the parameters outlined by the Court. Odom, supra, 116 N.J. at 79; Nesbitt, supra, 185 N.J. at 511; Summers II, supra, 176 N.J. at 312. However, Lt. Shuster's opinion that the two men illustrated in the hypothetical "were conspiring together to sell CDS" added nothing that could validly be considered to "assist the trier of fact to understand the evidence." N.J.R.E. 701. Rather, Lt. Shuster's last comment inappropriately asserted a factual statement that a conspiracy was established and expressed a conclusion on the ultimate legal issue that the conspiracy was to distribute CDS. This was improper. State v. Baskerville, 324 N.J. Super. 245, 257 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
Count one of the indictment charged defendant and Gregory with conspiring to distribute CDS. As defined in the Criminal Code, conspiracy requires an agreement between at least two people "to engage in conduct [that] constitutes a crime" or to plan the "commission of such crime." N.J.S.A. 2C:5-2(a)(1) and (2). The facts supporting an alleged conspiracy -- that defendant and Gregory arrived at apartment 2A together, both possessed drugs, and tried to escape together -- did not require assistance to ensure understanding. "[A] jury does not need expert testimony to explain the obvious." Reeds, supra, 197 N.J. at 303 (Albin, J. concurring). We agree with defendant that the explicit statement from the State's lead fact witness, who also was in charge of the surveillance and arrest, that "I believe they were conspiring together to sell CDS" went too far and was designed to unfairly answer the actual question of defendant's guilt.
Thus, the expert's answer to the State's question, although not explicitly mentioning defendant by name, included an opinion embracing the ultimate legal issue using statutory terminology defining the criminal offense. Id. at. 297; Odom, supra, 116 N.J. at 80 ("It may be that an expert's opinion is expressed in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute. This would be impermissible."). Lt. Shuster was not to give his opinion on whether a conspiracy occurred-- that determination was for the jury. His comment did not assist "the jury's understanding of facts and their significance," but rather implicitly added credibility to the State's case and was "unduly prejudicial." Nesbitt, supra, 185 N.J. at 515. The comment should not have been uttered; and once made should have been stricken.
Citing Reeds, defendant maintains the error requires a new trial. We do not agree. We conclude the reversal of defendant's conviction on conspiracy does not necessitate a new trial and we distinguish this matter from Reeds. In Reeds, supra, the Court was compelled to grant a new trial following the prejudicial testimony whereby the expert offered his conclusion that the defendant constructively possessed the drugs found in the vehicle he was driving. 197 N.J. at 300. The defendant was charged with possession with intent to distribute CDS. Id. at. at 286. In granting a new trial, the Court explained "possession" was an element for the crimes for which defendant was charged and the term "constructive possession" used by the expert was a legal term defining a type of possession. Id. at 295-96. Thus, the conclusory testimony tread on a determination that was within the province of the jury.
In this matter, the inappropriate expert testimony addressed the conspiracy charge. However, conspiracy is a separate and distinct offense from the distribution offenses that were the object of the conspiracy. State v. Sessoms, 187 N.J. Super. 625, 637 (Law Div. 1982). When a defendant is convicted of the crime that is the object of the conspiracy, the conspiracy count must be merged into the offense. N.J.S.A. 2C:1-8(a)(2). Therefore, we review whether the error resulting in our reversal of the conspiracy charge affects the other convictions.
Defendant was indicted for possession and distribution of the heroin found on the floor of the closet. The basis for defendant's conviction turned on facts unrelated to the inappropriate statement of conspiracy uttered by Lt. Shuster. The State produced the following evidence, which the jury was entitled to fully accept in reaching its verdict. Defendant did not reside in apartment 2A; he arrived with Gregory; when alerted to the police presence, the two attempted to escape through a rear window; spotting the police at the base of the fire escape, the two returned to the apartment and hid in the same bedroom; the heroin was found at the base of the closet where defendant was hiding and the cocaine was found adjacent to Gregory's hiding place; neither defendant nor Gregory possessed drug paraphernalia to enable the ingestion of the illicit narcotics; and defendant possessed a locked cell phone and $40 cash.
In his expert opinion, Lt. Shuster acknowledged four bags of heroin is not a large quantity. However, he also explained the scenarios of street drug distribution, which revealed the frequent use of cell phones to effectuate the transactions. A buyer calls the seller who delivers the specific quantity sought. Thus, the person "involved in selling drugs would only bring out what their customer wants . . . . [T]hey work off the phone and they'll make deliveries[.]" He then discussed the packaging of heroin and the use of a "brand name" in New Brunswick. In response to the factually aligned hypothetical, Lt. Shuster opined the individuals described were going to sell the drugs they possessed because they arrived at a location together, tried to escape police apprehension together and possessed no means of personal drug use.
The quantum of evidence overwhelmingly supports defendant's conviction for possession of CDS with intent to distribute. That evidence was untainted by Lt. Shuster's subsequent limited conspiracy comment.*fn4
In his charge to the jury, the trial judge separated the instructions on the drug offenses from those for conspiracy, further distancing the crimes. The jury was instructed on all elements of counts six and seven before the court mentioned the conspiracy charged in count one. We cannot agree that Lt. Shuster's comment unfairly impacted the jury's evaluation of the other evidence. Accordingly, we affirm defendant's conviction on count seven. Because the conviction under count one merged into count seven, there is no change in defendant's overall sentence.
Defendant's challenge to the sentence imposed contends the trial court double counted the aggravating factors contrary to State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We disagree.
The State moved for an extended term, N.J.S.A. 2C:43-6(f) because this was defendant's third adult conviction for possession with intent to distribute, and he had prior juvenile adjudications for the same offense.
In imposing the sentence, the judge found applicable aggravating factors three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), (defendant's prior criminal record), and nine, N.J.S.A. 2C:44-1(a)(9), (the need to deter defendant and others from violating the law), which outweighed the nonexistent mitigating factors. Applying the extended term, the court imposed a sentence of eight years with a four-year period of parole ineligibility.
We conclude the trial judge's consideration of defendant's prior drug convictions, when determining the applicability of N.J.S.A. 2C:43-6(f), and the inclusion of factor six when imposing sentence was proper. Defendant had an extensive juvenile and adult criminal history, which included more than one conviction for distribution of CDS. Defendant had been adjudicated delinquent for conduct, which if committed by an adult constituted the offenses of robbery, possession and distribution of CDS, and violation of probation. As an adult, in addition to this matter, defendant was convicted on two separate occasions for numerous charges involving the distribution of CDS. Finally, he awaits trial on charges for murder, burglary, and weapons offenses. The court's consideration of factor six was appropriate and there was no "double counting" when imposing the extended term. State v. Vasquez, 374 N.J. Super. 252, 269 (App. Div. 2005).
"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). We discern no abuse of discretion, as the judge's findings are amply supported by the evidence.
Our review of defendant's supplemental brief reveals the arguments raised in Points One and Five are subsumed in the arguments presented by counsel and discussed above. We find defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2).
We affirm the order denying the motion to suppress, affirm defendant's convictions on counts six, seven and nine, and reverse the conviction on count one, which was merged obviating resentencing. We remand for correction of the Final Judgment of Conviction.