September 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY T. RAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-0396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
Defendant Anthony T. Ray was arrested by the Plainfield police and charged with third-degree unlawful possession of a firearm, specifically a BB gun. Although the Director of the Union County Pre-trial Intervention Program (PTI) recommended his admission to the program, the Union County Prosecutor's Office rejected his application.*fn1 Defendant pled guilty to a single-count accusation charging him with a violation of N.J.S.A. 2C:39-5(b).
Before sentencing, however, defendant moved to vacate his guilty plea, and also appealed the denial of his admission into PTI. The State did not object to defendant's motion to withdraw his guilty plea, noting that it intended to present the case to a grand jury. Before defendant's motions were heard, the matter was in fact presented to the Union County grand jury that returned a three-count indictment charging defendant with third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); third-degree possession of imitation CDS with intent to distribute, N.J.S.A. 2C:35-11(a)(3); and second-degree possession of a firearm in the course of committing a CDS offense, N.J.S.A. 2C:39-4.1(a). Defendant moved to dismiss the indictment.
At oral argument before Judge Stuart L. Peim, defendant argued, among other things, that the State's proofs before the grand jury regarding the imitation CDS charge were insufficient to establish a prima facie case. The judge rejected this argument, finding the testimony before the grand jury to be adequate. Noting that the State consented to the withdrawal of defendant's guilty plea to the accusation, Judge Peim posed the following question to defense counsel: "[D]o you want the plea to remain in effect and go ahead with the sentencing  or do you want to withdraw the plea and let . . . the other charges play out?" Defense counsel responded,
I don't think we have any choice. I think that under the circumstances of the Court's ruling that it doesn't make sense to withdraw the plea because the reality of it is  that . . . in all likelihood  a [conviction of] possession of a weapon third-degree would be the result of a jury trial in this matter.
Defendant then formally withdrew his motion to withdraw his guilty plea.
Judge Peim denied defendant's appeal from the prosecutor's rejection of his PTI application, noting sufficient evidence of "a second-degree crime." See R. 3:28, Guideline 3(i) ("A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."). Thereafter, the prosecutor dismissed the indictment. Defendant was subsequently sentenced to three years probation, and the appropriate financial penalties were assessed.
On appeal before us, defendant raises the following point:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT WHERE THE STATE FAILED TO PRESENT TO THE GRAND JURY SUFFICIENT EVIDENCE TO SUPPORT ITS CLAIM THAT DEFENDANT POSSESSED IMITATION CONTROLLED DANGEROUS SUBSTANCES WITH INTENT TO DISTRIBUTE.
We have considered this argument in light of the record and applicable legal standards. We affirm.
The standards that inform our review are well-settled.
Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective. Moreover, the decision whether to dismiss an indictment lies within the discretion of the trial court and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused. [State v. Hogan, 144 N.J. 216, 228-29 (1996) (quotations and citations omitted).]
However, "[t]he grand jury must be presented with sufficient evidence to justify the issuance of an indictment[,]" and "[t]he absence of any evidence to support the charges would render the indictment 'palpably defective' and subject to dismissal." State v. Morrison, 188 N.J. 2, 12 (2006) (quoting Hogan, supra, 144 N.J. at 229). "[I]f there is some evidence establishing each element of the crime to make out a prima facie case[,]" the indictment should not be dismissed. Ibid. In considering the sufficiency of the evidence, the trial court should use a standard similar to that applicable in a motion for a judgment of acquittal at trial, R. 3:18-1.
The court should evaluate whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it. [Id. at 13 (citing State v. Reyes, 50 N.J. 454, 459 (1967)).]
Applying these standards to the case at hand, defendant's motion to dismiss the indictment based upon insufficient evidence before the grand jury was properly denied.
The State's sole witness before the panel was Detective Ronald Fusco of the Plainfield police department. He had been assigned to the narcotics unit for over three years, had experience and training in identifying various types of controlled dangerous substances and their packaging, and had observed "[s]everal hundred" narcotics transactions during that time. On the day in question, Fusco and another officer were in plainclothes in an unmarked police car. He observed defendant standing in the middle of an intersection, pulled his police car over, and asked defendant what he was doing. Defendant responded that he "was waiting for the bus and heading toward Newark." Fusco told defendant to stand on the sidewalk for his own safety, and defendant complied by standing in the bus stop near Fenrose Liquors.
Five minutes later, as Fusco drove by the area again, he observed defendant "face to face with a male later identified as Sergio Orrego[.]" He saw Orrego with an "undetermined amount of U.S. paper currency in his right hand[.]" Fusco observed defendant "spit" an unknown object into his right hand, and take the money from Orrego. Based upon his training and experience, Fusco believed "defendant was attempting to distribute a quantity of narcotics to  Orrego[,]" noting it was common for street dealers to "conceal narcotics in their mouth to avoid police detection."
Fusco and his partner stopped their car and observed defendant place his cupped right hand "towards his mouth." He believed defendant placed the narcotics "in his mouth," and, as the officers approached, defendant "step[ped] away from  Orrego and walk[ed] west in the parking lot[.]" Defendant "kept looking over his right shoulder" as the officers approached him from behind.
When defendant "quickly reach[ed] towards the front of his waist with his right hand[,]" Fusco ordered him to halt and show his hands, but defendant did not comply. Believing defendant was going to flee or that he had a weapon in his waistband, Fusco tackled defendant from behind and handcuffed him. He recovered a BB gun from defendant's waist.
Fusco checked defendant's mouth and found no "narcotics." Fusco advised defendant of his Miranda rights, and, after stating he understood them, defendant told the detective that he was going to sell Orrego "candy," a term Fusco understood to mean "fake narcotics." Fusco retrieved $24 from defendant's left pants pocket.
A grand juror inquired whether Fusco had found "any other packets [anywhere] on [defendant] ?" Fusco testified that "no narcotics or imitation narcotics [were] found on [defendant's] person[.]" The prosecutor then asked, "[Defendant] indicated he swallowed, correct?" Fusco responded, "Correct." In response to another juror's question as to what Orrego thought he was buying, Fusco testified that Orrego had given no statement to the police. Another juror asked, "But [defendant] did ingest something?" The assistant prosecutor immediately repeated, "[Defendant] said that he swallowed . . . the candy or the fake narcotics?" Fusco responded, "Correct."
N.J.S.A. 2C:35-11(a) makes it unlawful for any person to distribute or to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance or controlled substance analog:
(1) . . . ;
(2) . . . ;
(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance or controlled substance analog.
Any of the following shall constitute prima facie evidence of such circumstances:
(a) The substance was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances or controlled substance analogs.
(b) The distribution or attempted distribution of the substance was accompanied by an exchange of or demand for money or other thing as consideration for the substance, and the value of the consideration exceeded the reasonable value of the substance.
(c) The physical appearance of the substance is substantially the same as that of a specific controlled dangerous substance or controlled substance analog.
The statute, and its nearly-identical predecessor, N.J.S.A. 24:21-19.1, have been the subject of little case analysis. In State v. Sharkey, 204 N.J. Super. 192, 199 (App. Div.), certif. denied, 102 N.J. 360 (1985), we upheld the former statute against a challenge of unconstitutional vagueness, noting "that persons of ordinary intelligence would understand this legislation to proscribe the distribution of, or possession or control with the intent to distribute, substances which are represented as, or substantially similar in physical appearance to, controlled dangerous substances." We also rejected the "defendant's claim that the statute permit[ted] the use of an unconstitutional presumption" by describing examples of evidence that would establish a prima facie violation. Id. at 201.
In In re M.G., 307 N.J. Super. 348, 351 (App. Div.), certif. denied, 154 N.J. 607 (1998), we affirmed an adjudication of delinquency based upon evidence that the defendant possessed "two saran wrapped sheets of blotter paper, each perforated into 100 sections with each section imprinted with black and white smiley faces . . . styled and packaged in a traditional manner used to transfer LSD." Specifically noting subsection (3)(a) of the statute, we held that "[w]hen a substance is packaged in a manner normally used for unlawful transfer of controlled dangerous substances, there is prima facie evidence of circumstances that would lead a reasonable person to believe the substance is the controlled dangerous substance replicated by the packaging." Id. at 355; and see In re A.B., 278 N.J. Super. 380, 391 (Ch. Div. 1994) (noting "the packaging and physical appearance of the substance [was] prima facie evidence of a [statutory] violation").
In this case, defendant essentially argues that because the police never recovered any object, and because the State never produced any testimony before the grand jury regarding the appearance of the object, there was insufficient evidence that the substance was "not a controlled dangerous substance or controlled substance analog." N.J.S.A. 2C:35-11(a). He further argues that because there was no testimony regarding the physical appearance of the object or how it was packaged, and no evidence regarding how much money was exchanged between defendant and Orrego, the State was not entitled to the benefit of N.J.S.A. 2C:35-11(a)(3)(a) - (c), i.e., circumstances that establish a prima facie statutory violation. As a result, the State failed to adduce sufficient evidence that defendant possessed the substance "under circumstances which would lead a reasonable person to believe that the substance [was] a controlled dangerous substance or controlled substance analog." We disagree with both contentions.
In order to secure an indictment, the State needed to adduce evidence that defendant possessed with intent to distribute "any substance which is not a controlled dangerous substance or controlled substance analog[.]" N.J.S.A. 2C:35-11(a). To carry this burden, the State need not produce the actual substance or even supply its description. We agree with Judge Peim that the State presented prima facie proof that the substance defendant allegedly swallowed was not CDS through defendant's own "admission," i.e., his statement to Fusco that the substance was "candy," and Fusco's expert "interpretation of the admission," i.e. that "candy" meant fake narcotics. Taken in conjunction with the testimony regarding defendant's actions, there was sufficient evidence upon which the grand jury could conclude that defendant possessed a substance that was not a controlled dangerous substance or controlled substance analog.
Defendant also contends that the State failed to adduce sufficient evidence to establish a prima facie case that he possessed the substance with intent to distribute it "[u]nder circumstances which would lead a reasonable person to believe that the substance [wa]s a controlled dangerous substance or controlled substance analog." N.J.S.A. 2C:35-11(a)(3). He argues that Fusco failed to describe how the substance was "packaged," N.J.S.A. 2C:35-11(a)(3)(a), or its "physical appearance," N.J.S.A. 2C:35-11(a)(3)(c), and that while Fusco testified about Orrego's exchange of money in consideration of obtaining the substance, there was no testimony that "the value of the consideration exceeded the reasonable value of the substance." N.J.S.A. 2C:35-11(a)(3)(b).
Assuming arguendo that defendant is correct in his characterization of Fusco's testimony, the argument is nevertheless without merit. The Legislature has chosen to prohibit the possession of imitation CDS with intent to distribute it "[u]nder circumstances which would lead a reasonable person to believe" the substance was CDS. Prima facie proof of such circumstances exists when the State demonstrates conduct described in N.J.S.A. 2C:35-11(a)(3)(a)-(c). But those three subsections do not comprise an exclusive list of the only ways by which a violation may be proven.
As Judge Peim noted, Fusco's observations were "consistent with a conclusion that there was a drug transaction going on." The detective saw defendant engage in a hand-to-hand transaction in which Orrego handed him money. He observed defendant spit something into his hand, before eventually putting his hand back toward his mouth. Defendant was armed with an authentic looking BB gun in his waistband during the transaction, and quickly walked away as the police approached. He failed to heed Fusco's command to stop and was ultimately wrestled to the ground. In short, under all the circumstances presented, a reasonable person could believe that defendant was offering to sell CDS to Orrego, and was in the middle of the sale when the police arrived on the scene.
We hasten to add, as Judge Peim noted, that the quantum of evidence adduced before the grand jury "need not be great," State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997), and certainly "need not be sufficient to sustain a conviction[.]" State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 27 (1984). Providing the State with "every reasonable inference," Fusco's testimony was sufficient "to determine that there [wa]s prima facie evidence  establish[ing]" defendant's violation of N.J.S.A. 2C:35-11(a)(3). Ibid.