August 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISAAC RICKS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-09-1243 and 05-10-1440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Skillman and Graves.
Defendant Isaac Ricks appeals from a judgment of conviction and sentence entered after a trial by jury and from a sentence imposed following his entry of a guilty plea to a charge in a separate indictment. We affirm.
A jury convicted defendant of fourth-degree possession of marijuana with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count one of Hudson County Indictment No. 05-09-1243), and third-degree possession of marijuana with intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-7 (count two of Indictment No. 05-09-1243). On June 2, 2006, the court granted the State's motion to impose a mandatory extended term for a repeat drug offender under N.J.S.A. 2C:43-6(f); merged count one into count two; and sentenced defendant to a ten-year extended prison term with five years of parole ineligibility.
On the same day, defendant was sentenced on a separate indictment. Prior to sentencing, defendant pled guilty to count two of Hudson County Indictment No. 05-10-1440, which charged him with third-degree possession of marijuana with intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-7. Pursuant to a negotiated plea agreement, defendant acknowledged that he was subject to an extended ten-year term with five years of parole ineligibility. In return for defendant's guilty plea, the State agreed to dismiss count one of the indictment, and it agreed to recommend that defendant's sentence would be concurrent with the sentence that he received as a result of his jury trial. Pursuant to the plea agreement, the court imposed a concurrent ten-year term with five years of parole ineligibility on the second indictment.
During defendant's trial, Jersey City Police Detective Amy Hulings testified that on June 8, 2005, at approximately 11:00 a.m., she was working undercover in the vicinity of Bramhall Avenue and Bergen Avenue, when she observed two men, later identified as defendant and co-defendant Ronald Moore, talking to each other in front of 625 Bramhall Avenue. About twenty minutes later, a black Honda parked nearby, and the driver approached Moore. After a brief conversation, the driver of the Honda took cash out of his pocket and handed it to Moore. Moore then walked to the driveway of 624 Bramhall to pick up a small item. When he returned, Moore gave the small item to the driver of the Honda, who got back in the car and drove away.
Shortly thereafter, an unidentified female approached defendant and, after a brief conversation, the female gave defendant cash. Defendant then took a small item out of a green pouch that he had in his front pocket and handed the item to the female.
Detective Hulings also testified as follows:
Right after I saw that, another male who we later identified as Chris Legrand walked up to the vehicle that I was in, which had tinted windows. He started pressing his face to the windows, like walked around the vehicle, looked in the side windows, looked in the front, and then looked over at defendant and Mr. Moore and yelled out "Five-oh," and was pointing to the vehicle I was in.
At that point Detective Haulings believed that she had just witnessed two drug transactions, but she also believed that the surveillance had been compromised, and she directed her back-up unit to the scene. When defendant was arrested and searched, Officer Ferrante, a member of the back-up team, recovered a green pouch from defendant's front pocket, which contained fourteen small bags of marijuana. In addition, Ferrante recovered forty-six dollars in currency from defendant.
Detective Christopher Robateau testified as an expert witness for the State. Robateau testified that a "dime bag" of marijuana usually sells for "between seven and eight dollars per bag." After being asked a hypothetical question with facts similar to the present case, Robateau testified that in his opinion, the fourteen bags of marijuana recovered from defendant were for distribution rather than for personal use. Robateau based his opinion on "the totality of the circumstances," including the observations by Detective Hulings; the fact that the hand-to-hand transaction took place in an area known for narcotics activity; the quantity of the individually packaged drugs; the denominations of the currency recovered from defendant (two tens, two fives, and sixteen singles), which were indicative of drug sale proceeds; and the fact that no drug paraphernalia was recovered from defendant. In forming his opinion, Detective Robateau did not rely on the fact that Christopher Legrand had pointed to the undercover police vehicle and shouted "five-oh."
Shortly after 11:00 a.m. on the second day of trial, the State advised the court that it was going to rest its case "as soon as the jury comes out." Defense counsel then advised the court that defendant "found Christopher Legrand, and Mr. Legrand can be here tomorrow morning." When the court asked what Legrand would testify to, counsel responded:
Your Honor, Mr. Legrand is going to testify that when he saw the van, it looked like the van that had done the shooting of his sister a week before and . . . it was in the same place, . . . and that's why he went to the van to look at it, to investigate to see if it was the same one.
And that's why he investigated and said it was cops, but not to advise people it was cops. It's like it's not the shooters, it's just the police.
Based on this proffer of proof, the trial court was unwilling to wait until the following morning to receive Legrand's testimony.
Defendant elected to testify on his own behalf, and he called co-defendant Ronald Moore as a defense witness. Defendant admitted that he "had like fourteen bags of marijuana" when he was arrested, but he denied that he intended to sell the marijuana and he also denied that he sold any marijuana to anyone prior to his arrest. According to defendant, the marijuana was for his own use:
Q: And where did [the police officer] find this marijuana?
A: In my pocket.
Q: Do you know how much you had in your pocket?
A: Yes. I had a few bags. I had like fourteen bags of marijuana.
Q: What did you intend to do with your fourteen bags of marijuana?
A: Smoke them like I usually always do.
Q: Pardon me?
A: Smoke them like I usually always do. . . . .
Q: Do you know how about much you smoke every day?
A: A few bags a day, give or take.
Q: How many bags a day?
A: A few bags a day.
Q: A few?
Q: What's a few?
A: Four or five.
Similarly, Moore testified that while he was with defendant he did not see him give, sell, or distribute marijuana to anyone. Moore also testified that defendant was "a real heavy smoker," who "could smoke five bags within an hour." During cross-examination, Moore and defendant both informed the jury of their prior criminal convictions.
The defense rested at approximately 2:50 p.m., and the court conducted a charge conference before adjourning for the day. The next morning, the attorneys presented their closing arguments.
Defendant presents the following arguments on appeal:
POINT ONE THE OVERWHELMING NUMBER OF GAPS AND INAUDIBLE MOMENTS DURING THE COURT PROCEEDING CREATED AN INADEQUATE RECORD (NOT RAISED BELOW).
POINT TWO TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION AND FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL IN FAILING TO GRANT DEFENDANT'S REQUEST FOR ADJOURNMENT TO PROCURE WITNESS WHO WAS SCHEDULED TO TESTIFY ON BEHALF OF DEFENDANT.
POINT THREE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR A. COUNSEL'S FAILURE TO ARGUE EXCLUSION OF PRIOR CONVICTIONS DURING SANDS/BRUNSON HEARING BASED ON THEIR REMOTENESS;
B. FAILURE TO ARRANGE FOR APPEARANCE OF WITNESS LEGRAND.
C. FAILURE TO MAKE A MOTION FOR A JUDGMENT OF ACQUITTAL (NOT RAISED BELOW).
D. FAILURE TO MAKE A MOTION TO SUPPRESS EVIDENCE FOR ILLEGAL SEARCH AND SEIZURE (NOT RAISED BELOW).
POINT FOUR THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY PERMITTING PROSECUTOR TO ALLUDE TO DEFENDANT'S PRIOR CONVICTIONS.
POINT FIVE THE SEARCH OF DEFENDANT WAS ILLEGAL AND EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED (NOT RAISED BELOW).
POINT SIX DEFENDANT'S SENTENCE WAS EXCESSIVE.
Based on our examination of the record, the briefs, and the applicable law, we are satisfied that these arguments do not warrant extended discussion. R. 2:11-3(e)(2). Accordingly, we affirm with only the following comments.
Initially, defendant contends that his judgment of conviction should be reversed and there should be a new trial because the existing record on appeal is "woefully inadequate." We do not agree. After reviewing each of the "gaps and inaudible moments" noted by defendant in the context of the entire record, and in light of the discussions immediately preceding and following the missing portions of the transcript, we are satisfied that we have been able to properly review the trial court proceedings and that defendant's right to appellate review has not been prejudiced by the sporadic gaps in the record. See, e.g., State v. Paduani, 307 N.J. Super. 134, 143 (App. Div.) (noting that defendant was not prejudiced by a record on appeal that contained "twenty-nine unrecorded sidebar conferences"), certif. denied, 153 N.J. 216 (1998).
With respect to defendant's second point, it appears that Legrand's testimony would have been admissible to negate the inference that Legrand was acting as a lookout and attempting to warn defendant and Moore that the police were in the van when he shouted "five-oh." Nevertheless, the absence of Legrand's testimony did not deprive defendant of his right to present his defense----that he was a drug user rather than a drug dealer. Because Legrand was not an essential defense witness, and because there was no explanation for his failure to be present in court on March 29, 2006, when his testimony was needed, we conclude that the trial court did not misapply its discretion in denying defendant's request to adjourn the trial for Legrand's testimony. Additionally, we are convinced that the absence of Legrand's testimony was "'harmless beyond a reasonable doubt.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967)).
In his third point, defendant contends that trial counsel rendered ineffective assistance at various points in the proceedings. Because these claims involve strategic decisions by trial counsel and evidence that is not part of the trial record, we decline to address them on this direct appeal. Should defendant elect to pursue these claims he may do so through a petition for post-conviction relief, at which time an appropriate record may be developed. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."); see also State v. Arthur, 184 N.J. 307, 320 (2005) ("Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront.").
In his fourth point, defendant contends the trial court abused its discretion by allowing the prosecutor to question defendant regarding his seven prior convictions for impeachment purposes even though the prior convictions were sanitized to preclude reference to specific crimes. See State v. Brunson, 132 N.J. 377, 392 (1993) ("Sanitization of prior-conviction evidence of similar crimes merely limits the scope of the prosecution's cross-examination of a defendant to the date, the degree, and number of similar prior convictions."). Defendant contends that some of his convictions "should not have been admitted because they were too remote." We disagree. Between 1989 and 1995, defendant committed five indictable offenses. Although he had no indictable convictions from 1997 through 2005, he was sentenced to an eight-year prison term with four years of parole ineligibility on November 1, 1996. Under these circumstances, the trial court correctly concluded that defendant's prior convictions were admissible for impeachment purposes. See State v. Sands, 76 N.J. 127, 145 (1978) ("If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.").
Defendant also challenges his sentence, but he does not dispute he was subject to a mandatory extended term as a repeat drug offender under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present, enhanced sentencing must occur."). Defendant was thirty-six years old when he was sentenced, and these were his eighth, ninth, and tenth indictable convictions. The court properly noted that defendant had been "continuously involved" with the adult criminal justice system, and it found three aggravating factors: the risk of recidivism, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.
"An appellate court may modify a sentence only if the sentencing court was 'clearly mistaken.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In this case, the trial court correctly applied the sentencing guidelines and its findings regarding the presence of aggravating factors and the absence of mitigating factors were based on competent and credible evidence in the record. Additionally, we are satisfied the sentence imposed was not manifestly excessive or unduly punitive, and it did not constitute an abuse of discretion. State v. Roth, 95 N.J. 334, 364-66 (1984).
© 1992-2009 VersusLaw Inc.