August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERIBERTO RIVERA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-01-0079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Grall and Espinosa.
Tried to a jury, defendant Heriberto Rivera was convicted of second-degree possession of cocaine with intent to distribute "in a quantity of one-half ounce or more, but less than five ounces," N.J.S.A. 2C:35-5a(1), -5b(2); third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of marijuana with intent to distribute "in a quantity of one ounce or more but less than five pounds," N.J.S.A. 2C:35-5a(1), -5b(11); third-degree possession of marijuana "over one ounce," with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a, -7; fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); and, second-degree possession of firearms while in the course of committing, attempting to commit or conspiring to commit the above-referenced crimes, N.J.S.A. 2C:39-4.1a. The judge imposed a sentence of imprisonment and fines for each conviction and the appropriate fines, penalties and assessments. Defendant's aggregate sentence is twelve years' imprisonment with a three-year period of parole ineligibility.
Around 11:30 p.m. on October 6, 2005, Detective Anthony Ferraioli and his partner were on patrol in Hackensack. Ferraioli saw two men standing in or near an entrance to 333 Park Street, an apartment building. Defendant was holding "a plastic bag with white powder in it" and his companion had money in his hand. Ferraioli and his partner stopped, got out of their car and identified themselves. Defendant ran into the apartment building; his companion fled. The officers followed defendant. He entered an apartment on the first floor, and the officers continued their pursuit. Ferraioli saw defendant throw "the bag he had in his hand" into a garbage can in the kitchen and placed him under arrest. There were three other people in the apartment - Frank Smickley, who rented and lived in the apartment, Kourtney A. Keefe and Michael Sampson. Ferraioli saw four sandwich-size plastic bags containing marijuana and cocaine, three bags of marijuana seeds, six plastic bags of cocaine, two digital scales, empty clear and yellow plastic bags used to package drugs and two firearms. Subsequent testing revealed that the baggies seized, including the baggie which defendant threw into the garbage can, contained a total of at least 16.8 grams (0.59 ounces) of cocaine and 92.7 grams (3.27 ounces) of marijuana.*fn1 The knotted plastic baggie that Ferraioli saw defendant throw in the garbage held .62 grams of cocaine. The firearms were operable BB guns.
At trial, the prosecutor presented expert testimony from Detective Melissa Pera of the Bergen County Prosecutor's Office. The detective had participated in over 500 narcotics investigations and had served as a member of the Narcotics Task Force. The expert testified about practices of drug dealers, including their use of scales, plastic bags, guns and "stash" houses. In response to a hypothetical, she gave her opinion that the "cocaine and marijuana" were possessed with the intent to distribute.
Although defendant elected not to testify, he presented evidence to rebut Detective Ferraioli's testimony. If the jurors credited that evidence, they could have concluded that the officer could not have seen defendant holding cocaine or followed defendant into the building. According to Neil Blake, defendant's friend, he and defendant were talking inside the building when the officers knocked on the door and demanded to speak to the "super" about a truck that they wanted moved.
Blake opened the door, and defendant went to get Frank Smickley. Blake saw the officers follow defendant into Smickley's apartment. Michael Sampson, who was inside, said that the police officers barged in behind defendant and found everything they seized in the bedroom of Smickley's apartment; none of it was visible in the kitchen or the living room.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DILUTED THE STATE'S BURDEN OF PROOF AND DEPRIVED DEFENDANT OF HIS DEFENSE AND A FAIR TRIAL. THE COURT THEN FURTHER ERRED IN FAILING TO EXPLAIN THIS CONCEPT TO THE JURY AFTER THE JURY SPECIFICALLY ASKED WHETHER DEFENDANT COULD BE CONVICTED BASED ON HIS PRESENCE IN A ROOM WHERE DRUGS WERE FOUND.
II. THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO SUGGESTED THAT DEFENDANT WAS GUILTY OF "DEALING ON THE STREETS," THAT DEFENDANT WAS PART OF A LARGER DRUG DISTRIBUTION SCHEME, AND THAT THE APARTMENT WHERE THE DRUGS WERE FOUND WAS A "STASH HOUSE" WHERE DEFENDANT AND OTHER MEMBERS OF HIS "ORGANIZATION" STORED THEIR GUNS AND WEAPONS, IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY.
III. DEFENDANT'S CONVICTIONS FOR SECOND-DEGREE POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE AND THIRD-DEGREE POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE MUST BE REVERSED BECAUSE THE JUDGE NEGLECTED TO CHARGE AN ELEMENT OF THOSE CRIMES TO THE JURY. (Not Raised Below).
IV. PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. V. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF DEFENDANT'S REMOTE CONVICTIONS.
VI. THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD POSSESSED CDS.
VII. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF TWELVE YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
VIII. THE SENTENCES IMPOSED ON COUNTS TWO, THREE, FOUR, AND SIX MUST BE VACATED. (Not Raised Below).
We reject defendant's claim of error based on the denial of his motion for a judgment of acquittal. The evidence, viewed in the light most favorable to the State, was adequate to permit the jury to draw the inferences essential to find that defendant had actual possession of the drugs he held outside the apartment building and constructive possession of the drugs and firearms in the apartment. State v. Brown, 80 N.J. 587, 591-94 (1979); State v. Reyes, 50 N.J. 454, 459 (1967).
A verdict of guilt on a charge of possession of contraband requires proof that the defendant "knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c. "Possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time," State v. Davis, 68 N.J. 69, 82 (1975), exercised by one who has knowledge of the "character" of the item, State v. Reed, 34 N.J. 554, 557 (1961). See Brown, supra, 80 N.J. at 597. Actual physical possession is not necessary. Ibid. When "there is an intention to exercise control over [contraband] manifested in circumstances where it is reasonable to infer that the capacity to do so exists," the defendant is in "constructive possession" and may be found guilty on that basis. Ibid.
A finding of "constructive possession cannot be based on mere presence at the place where contraband is located." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd o.b., 133 N.J. 481 (1993). There must be "circumstances beyond mere presence" that permit a reasonable inference of the defendant's intention and capacity to exercise control over the object and the defendant's knowledge of what the object is. Ibid.; see State v. Palacio, 111 N.J. 543, 551-54 (1988); Brown, supra, 80 N.J. at 593.
In this case, the evidence of circumstances in addition to defendant's presence, viewed in the light most favorable to the State, was adequate to permit the jury to draw the inferences essential to find that defendant had actual possession of the drugs he held outside the apartment building and constructive possession of the drugs and firearms in the apartment. Brown, supra, 80 N.J. at 591-94; Reyes, supra, 50 N.J. at 459. Detective Ferraioli's testimony was sufficient to establish that defendant held a bag of cocaine outside Smickley's apartment building and, when detected by the police, fled to Smickley's apartment where drugs, paraphernalia used to weigh and package drugs and guns used to protect the drugs and the dealers were readily accessible and in plain view. From that evidence, the jury could infer that defendant was familiar with the apartment and its occupants, knew about their activities and had the intention and ability to exercise control over the drugs and guns inside, just as he had held the drugs outside and used the wastebasket inside to dispose of them. Those were not the only available inferences, but they were reasonable inferences and supported a finding of guilt. Accordingly, we reject the argument raised in Point VI of defendant's brief without further discussion. R. 2:11-3(e)(2).
Defendant contends that the jury instruction on the law governing constructive possession was not adequate. State v. Afandor, 151 N.J. 41, 54 (1997). Although the trial court delivered the complete model jury instruction on possession, actual, constructive and joint, the court refused defendant's request for a supplementary instruction on "mere presence." Defendant asked the court for a "mere presence" charge twice: at the initial charge conference; and again when the deliberating jurors asked the court whether defendant's presence in Smickley's apartment was enough to establish defendant's constructive possession of the guns and drugs found inside.
In State v. Montesano, 298 N.J. Super. 597, 612-15 (App. Div.), certif. denied, 150 N.J. 27 (1997), we held that an accurate and complete charge on possession and constructive possession, read "as a whole, . . . left no room to doubt that 'mere presence' was insufficient to bring about a finding of the necessary elements of possession." But in this case, the question asked by the deliberating jurors showed that one or more of them were wondering whether "mere presence" was sufficient.
The deliberating jurors asked, "Is a person liable for constructive possession if he is in the room with other people and drugs are present." The judge responded, "[I]n answering that question [I] may give you a non-answer because this is the jury's determination whether a person is liable or not liable for constructive possession." After that preface, the court repeated the portion of the possession charge that focuses on constructive possession:
Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.
I'm not going to charge you any further on that. I could give some examples of constructive possession. I'm not going to do that. I leave the jurors to their own good common sense to analyze the charge, re-establish the facts as were presented in the courtroom to determine your determination in answering this question.
"When a jury requests clarification, the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). "A question . . . means that one or more jurors need help and that the matter is of sufficient importance that the jury is unable to continue its deliberations until the judge furnishes that help." State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994). Here, the question was an unambiguous request to know whether mere presence was enough to support a guilty verdict based on constructive possession. That question has an unambiguous and well-settled legal answer, which is "no"; mere presence, without more, is a legally insufficient basis for a finding of constructive possession and "all of the surrounding circumstances" must be considered in their "totality" in evaluating whether the State has established that a defendant was in constructive possession of contraband. Palacio, supra, 111 N.J. at 547 (quoting the jury charge given by the trial court with approval). While we are inclined to agree with the trial judge that "examples of constructive possession" would not have been helpful to jurors struggling to understand the legal significance of mere presence, direction focusing the jurors' attention on relevant circumstances - the placement and accessibility of the contraband in the apartment and defendant's access to and connection with the apartment and its occupants - would have been appropriate. See ibid. (repeating the guidance on circumstances relevant in that case given to the jurors by the trial court). We recognize that the model jury instruction on constructive possession does not include a charge on mere presence, but the instruction given by the trial court and quoted by the Supreme Court in Palacio illustrates how a court can fashion one that gives the jurors guidance in considering the facts of a particular case.
The difficulty here is that by directing the jurors to resolve a question about the law by using "their own good common sense to analyze the charge," the judge misinformed them. True, the question of guilt was for "the jury's determination" based on their "common sense" consideration of the evidence, but the legal sufficiency of "mere presence" is a matter of law, not a question committed to the common sense of the jurors deciding individual cases. The court's response to the jurors' question, read as whole, was clearly capable of leading the jurors to conclude that they were free to infer that the State proved defendant's constructive possession by showing that he was "in the room with other people and drugs are present" and that they were free to draw the same conclusion about defendant's presence in a room with other people and guns. Because we have serious doubt about whether the jurors' verdicts are based on a misunderstanding of the law, we reverse his convictions for possession of the guns and the drugs and remand for further proceedings in accordance with this opinion. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971).
In concluding that a new trial is essential, we have considered that the error in the charge would not implicate a finding based on defendant's possession of drugs outside the apartment building. Because the indictment did not include a separate charge based on that act of possession and the jury was not asked to consider defendant's guilt on that basis alone, the error has an impact on every count of the indictment and every conviction, necessitating a new trial.
Our reversal of defendant's convictions based on the inadequacy of the jury charge obviates the need to discuss the remaining issues. Nonetheless, we briefly address issues that may arise again. Defendant's claim of error based on the trial court's ruling on the admissibility of his prior convictions as relevant to credibility lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). On remand, the trial judge should reconsider the extent to which this expert's testimony will be helpful to the jurors and evaluate the admissibility of the expert's opinions in light of decisions rendered recently by the Supreme Court and this court in State v. Reeds, 197 N.J. 280 (2009) and State v. Thompson, 405 N.J. Super. 76 (App. Div.), certif. denied, 199 N.J. 133 (2009). Finally, because the State has conceded that the amount of drugs at issue must be submitted to the jurors where it is relevant to the degree of the offense at issue, we assume that this error of omission will not be repeated and that any convictions that are returned will be merged prior to sentencing in accordance with controlling legal principles.