On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Sabatino and Simonelli.
Following a jury trial, defendant Antoine Stevens was convicted of third-degree possession of a controlled dangerous substance ("CDS"), namely heroin, N.J.S.A. 2C:35-10(a)(i) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count six); and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a) (count seven). Defendant was sentenced to an aggregate prison term of thirteen years, with six-and-a-half years of parole ineligibility.
Defendant appeals his convictions on various substantive and evidentiary grounds. In particular, he argues that the trial court's failure to confirm on the record that his trial counsel had sufficiently advised him about his right not to testify requires reversal. Additionally, defendant maintains that: the trial court erred in denying his motion for judgment notwithstanding the verdict as to the resisting arrest conviction; irrelevant and prejudicial evidence was improperly admitted; and the jury instructions were deficient. Finally, defendant claims errors in his sentence.
For the reasons that follow, we reject defendant's arguments concerning his convictions, which we affirm in their entirety. However, as conceded by the State, the matter must be remanded for resentencing because of the required merger of the park-zone and school-zone drug offenses.
The State's proofs at trial adduced the following salient facts.
As part of a narcotics investigation, Anthony Goodman, a Jersey City police officer, was performing surveillance on September 29, 2006, at the intersection of Stegman Drive and Martin Luther King Drive ("MLK Drive"). That neighborhood contains a mixture of residential and commercial buildings. It was considered by law enforcement to be a high-drug area where narcotics arrests were often made.
Officer Goodman began his surveillance at 10:50 a.m. Shortly thereafter, he began to focus on two black males who were standing and conversing in front of a barbershop on MLK Drive. He identified the two males in court as co-defendants Damian Haynes and Kendall McCord.*fn1 Goodman then noticed Haynes walk into a nearby liquor store with another individual.
Apparently, no drug transaction occurred at that point, and Haynes left the store without purchasing anything. This scenario repeated two more times. Goodman asserted that he had an unobstructed view of the two establishments. He was situated approximately forty feet from the liquor store and 150 to 200 feet from the barbershop.
Following these initial observations, Officer Goodman began to focus on the area with binoculars. He noticed a tall black male, whom he later identified as defendant, approach. Haynes entered the barbershop while defendant and McCord waited outside. According to Goodman, McCord yelled, and at the same time made a hand gesture, asking for "two more." Given the officer's distance from the store, McCord's shout was not "clear as day" to Goodman; however, the officer insisted that he heard what McCord had shouted.
Haynes then left the barbershop and entered the liquor store with defendant. Once they were inside, Officer Goodman saw Haynes give defendant a small object via a "hand-to-hand exchange." Defendant gave Haynes what appeared to be currency in return. According to his testimony, Goodman was able to observe this because the store had large glass windows, which allowed him to see the upper bodies of the persons inside. Although there were promotional advertisements on the windows, Goodman stated that they did not block his view of the interactions between defendant and Haynes.
Based on these observations, Officer Goodman believed that he had witnessed a drug transaction because: (1) Haynes repeatedly left the liquor store without purchasing anything; (2) money had been exchanged between defendant and Haynes for a small package; and (3) defendant and Haynes left a public area and went into the liquor store, apparently desiring to transact their business in a more private setting. Goodman was unable, however, to identify the particular contraband that had been handed to defendant.
After the apparent hand-to-hand drug transaction was completed, defendant and McCord entered a green Chrysler Sebring. McCord drove the car, with defendant accompanying him in the front passenger seat. Haynes remained at the barbershop. Meanwhile, Officer Goodman alerted perimeter police units that were waiting nearby. Goodman gave them a description of the car, the passengers inside, and the direction in which McCord was driving.
Michael Burgess and Alexander Rivera, two of the Jersey City police officers involved in the perimeter duty, received Officer Goodman's call. They followed the Sebring and eventually pulled it over near the intersection of Bidwell Street and MLK Drive. Both Officers Burgess and Rivera were driving unmarked cars. They were wearing civilian clothes, although their police badges were readily viewable hanging from their necks.
Officer Burgess and another police officer approached the driver's side of the Sebring. Simultaneously, Officer Rivera approached the passenger side and identified himself to defendant. Both McCord and defendant were advised that they had been stopped as part of a narcotics investigation. They were asked to step out of the car.
According to Officer Rivera, defendant became "very belligerent" when he was asked to leave the car. Officer Burgess similarly recalled that by the time defendant got out and stood in the car's doorway, he was "real verbally confrontational." He asked the officers why the car had been stopped, and he started to flail his arms about. He also refused to stand still. Noting the disturbance, Officer Burgess came around the car to assist Officer Rivera. As he did so, defendant, according to Rivera, "made a move to take off" and he elbowed Burgess.
At that point, the police decided to handcuff and arrest defendant. Defendant resisted that effort, and, in doing so, kicked Officer Rivera in the shin. Both Rivera and Burgess testified that defendant's actions caused them pain.
Officer Burgess then searched defendant and McCord. From defendant's front pants pocket, Burgess recovered a Newport cigarette box. The box held fifty-four glassine bags containing what laboratory testing later confirmed to be heroin. The logo "Black Flag" was printed on the bags, indicating the identity of the distributor of the CDS. Burgess also uncovered from defendant a bag of suspected marijuana as well as $63 in cash. Officer Goodman then called the arresting officers to notify them that Haynes was walking towards the arrest scene. Haynes was subsequently arrested and marijuana was likewise found on his person.
Defendant was indicted and charged with various crimes, including the possession of heroin with the intent to distribute it generally, to distribute it within a school zone, and to distribute it within a park zone. The indictment did not, however, charge defendant with any offenses relating to the marijuana. Additionally, the indictment charged defendant with two counts of aggravated assault of a police officer (count five as to Officer Burgess and count six as to Officer Rivera), and also contained a count for resisting arrest.
At trial, Officer Goodman testified that the apparent drug transactions had occurred within 1000 feet of a school zone, as demarcated by an official map of Jersey City. Subsequently, defense counsel and the State stipulated that the transaction occurred within 1000 feet of a school. Goodman further contended that the drug transaction occurred within 500 feet of a public park, known as Audubon Park. This was based on a certified 500-foot City map.*fn2
The State produced two expert witnesses. First, it called William Goebel, a municipal engineer for Jersey City, as an expert in engineering and planning. Goebel testified that the 500-foot map depicted all areas within the City limits that were within 500 feet of a public park. Although that particular map had not been adopted by a City ordinance, Goebel testified that it was based on, or "scaled" from, an "official" City map.
Using the map as a reference, the State contended that the area where the heroin transaction took place was within 500 feet of Audubon Park. Goebel described how the map was made, using a scale that was adopted and certified by the State. He noted that as the supervisor in charge of the map, he had spot-checked the work done by his subordinates in preparing the map. Goebel also referred to an aerial map of Jersey City to demonstrate for the jury that the transaction occurred within 500 feet of Audubon Park.
The State also presented expert testimony from Wally Wolfe, a sergeant with the Jersey City Police Department. Sergeant Wolfe was admitted as an expert in illegal narcotic packaging and distribution. He opined that heroin was commonly sold in small glassine bags that usually contained a logo of the drug's producer. Wolfe concluded that the packaging used to contain the heroin found on defendant was of a type typically used in street sales. Over defendant's objection, Wolfe claimed that, in general, the heroin found in the area of the City where the transaction occurred was "very potent." He acknowledged, however, that the CDS involved here was not tested for its specific potency.
Defendant testified in his own behalf. He admitted that he was present with McCord and Haynes, as described, on September 29, 2006. However, he claimed that no CDS was on his person after he was stopped by the police. Defendant conceded that he asked the police several times why he was being stopped, and was told that the stop was part of an investigation. At the police station following the arrest, defendant was shown the heroin and marijuana the police claimed to have found on his person. However, he denied that the drugs were his own. Defendant conceded that he had been convicted of unlawful possession of a weapon in 1999, a fact which the prosecution used in summations to impeach his credibility.
After considering these proofs, the jury found defendant guilty on all counts charged in the indictment except for count five, aggravated assault of Officer Burgess. Although defendant was found guilty on count seven, resisting arrest, the jury concluded that defendant did not resist through the "use or [threat of] physical force or violence," thereby reducing its severity from a third-degree crime to a disorderly persons offense.
At sentencing, the trial judge merged counts one and two into count three. On count three, defendant was given a five-year term of incarceration, three years to be served without parole. Defendant received a concurrent nine-year term, four-and-one-half years without parole, on count four. A term of four years, two years without parole, was imposed on count six, to be served consecutively to count four. Finally, defendant received a six-month concurrent term on count seven. Appropriate fines and penalties were imposed. In sum, defendant's aggregate sentence was thirteen years, with six-andone-half years to be served without parole.
Defendant thereafter appealed. In his brief on appeal, defendant argues:
FAILURE TO CONFIRM THAT DEFENSE COUNSEL EXPLAINED TO DEFENDANT THE EFFECT OF HIS WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION, SUCH AS DISCLOSURE OF HIS PRIOR RECORD TO THE JURY OR THE OPTIONAL "NO-ADVERSE-INFERENCE" CHARGE, WAS A VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS. N.J. CONST. ART. I, PARAS. 1, 10; U.S. CONST. FIFTH AMEND
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE RESISTING ARREST CHARGE BECAUSE DEFENDANT WAS NEVER TOLD HE WAS BEING ARRESTED
THE TRIAL WAS TAINTED WITH IRRELEVANT AND PREJUDICIAL EVIDENCE THAT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. U.S. CONST. AMEND. V, VI AND XIV, N.J. CONST. ART I, PARA. 10
A. Since defendant was not charged with marijuana offenses, the bulk of the state's evidence was irrelevant and prejudicial
B. The admission of the 500 foot map without proper foundation, authentication and qualified witness testimony and Officer Goodman's reference to the maps as "1000 Foot" and "500 Foot" violated defendant's right to confrontation, contrary to Crawford v. Washington, 541 U.S. 35, 124 S.Ct. 1354 (2004)
D. The State's expert, and the trial judge, improperly testified as to the alleged purity of the heroin, denying defendant's right to a fair trial, due process and an impartial jury
E. Officer Goodman's testimony about his experience was irrelevant and prejudicial; he was a fact witness, not an expert witness opining based on his experience; his testimony as to what was in the minds of defendant and/or Damien Haynes was irrelevant, prejudicial and not a subject on which he would possess personal knowledge. Furthermore, the prosecutor's attempt to bolster the officers' testimony simply by virtue of their being police officers was inappropriate
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCES TO THE FACTS OF THE CASE OR THE DEFENSE THEORY OF THE CASE, AND WHICH INCLUDED EXTRANEOUS PORTIONS OF STATUTES NOT CHARGED, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT OF A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 10
THE DEFENDANT'S CONVICTIONS UNDER N.J.S.A. 2C:35-7 AND 2C:35-7.1 MUST MERGE
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE. FURTHERMORE, CONSECUTIVE TERMS WERE UNWARRANTED
A. Computation of sentence
B. Consecutive Sentences were not Warranted We now consider those ...