September 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT DANIELS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Following his arrest by police officers, who later testified they had witnessed defendant engage in an illegal hand-to-hand drug transaction in Newark on April 8, 2006, defendant was indicted and charged with: third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession with the intent to distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession with the intent to distribute CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).
Count three was dismissed prior to trial. At the conclusion of a three-day trial, defendant was convicted on the remaining counts. The trial judge granted the State's motion to impose an extended term, pursuant to N.J.S.A. 2C:43-6(f), and sentenced defendant to: a four-year prison term, with a two-year period of parole ineligibility, on count one, and concurrent seven-year prison terms, with forty-two-month periods of parole ineligibility, on counts two and four.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT'S INITIAL CHARGE TO THE JURY AND ITS SUBSEQUENT JURY RECHARGE WERE INADEQUATE, INCOMPLETE, AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
A. The Trial Court's Failure To Rein-struct The Jury On The Elements Of "Possession" And On The Mental States Of "Knowingly" And "Purposely" Constitute Plain Error (Not Raised Below).
B. The Trial Court's Failure To Instruct The Jury Sua Sponte On "Mere Presence" Was Plain Error (Not Raised Below).
II. DETECTIVE HOLLOWAY'S EXPERT OPINION THAT A HAND-TO-HAND DRUG TRANSACTION HAD OCCURRED CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
III. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S IMPROPER HYPOTHETICAL QUESTION (NOT RAISED BELOW).
IV. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
V. THE AGGREGATE CUSTODIAL SENTENCE OF 7 YEARS WITH 3-1/2 YEARS (42 MONTHS) OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
A. The Trial Court Abused Its Discretion In Imposing Base Sentences And Periods Of Parole Ineligibility That Exceeded The Statutorily Authorized Minimum Terms.
B. The Defendant's Convictions For Possession Of Cocaine On Count One And Possession of Cocaine With The Intent To Distribute On Count Two Should Have Been Merged With The Conviction For Possession Of Cocaine With The Intent To Distribute Within A Public Housing Zone On Count Four.
We find insufficient merit in Points I, II, III, and IV to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also find insufficient merit in defendant's arguments in Point V regarding the excessiveness of the prison terms imposed, but we agree -- and the State concedes -- that the convictions on counts one and two should have merged into the conviction on count four for sentencing purposes; as a result, we remand for resentencing. We add only the following comments regarding Point I.
Defendant argues in Point I that the trial judge failed to reinstruct the jury regarding "possession," and what is meant by "knowingly" and "purposely," after the jury posed a more general question during deliberations. When the judge indicated how he would respond, defense counsel did not then object nor did he object after the jury was reinstructed. As a result, we examine defendant's arguments by reference to the plain error standard. See R. 2:10-2.
The record reveals that the jury asked during deliberations whether it could be provided with transcripts and "[i]f so, we need all three witness's transcripts and the elements to consider on each charge." The judge explained the difficulties and time involved in having transcripts prepared and advised that if there was some part of the testimony the jurors wanted to hear again, it could be read back to them. He also advised that if the jury wanted a readback, a note to that effect should be sent to him.
The judge then turned to the jury's other request. The judge provided the elements of each charge, but, as defendant now complains, instead of again defining "possession," "knowingly," and "purposely," the judge simply reminded the jury that he had defined those terms the afternoon before. When the judge had finished, defendant did not object.
After careful review, we conclude that the judge fully and fairly responded to the jury's request. As the judge mentioned, the original charge had been given the day before. We are satisfied that had the jury felt the judge's reference to his instructions the day before regarding "possession," "knowingly," and "purposely" was insufficient, its members understood that they could have requested further explanation. The fact that the jury did not pose any additional questions or ask for a readback of any testimony reveals the jury was satisfied with what had been provided. In essence, we find no error in the judge's handling of the jury's question or in the instructions he gave. And we find no error in the judge's failure to sua sponte provide, for a second time, definitions of the terms now in question; moreover, if we were to find the judge to have erred in this regard, we are convinced that such an error was not "clearly capable of producing an unjust result." R. 2:10-2.
In the second aspect of Point I, defendant argues that the judge erred by failing to instruct the jury that defendant's mere presence in what the testimony suggested was a high crime area was not alone sufficient for the jury to infer that defendant was in possession of CDS, citing State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987). Because defendant never requested such a charge, we again consider this argument with reference to the plain error standard. R. 2:10-2. Although it certainly would have been appropriate for the judge to provide this instruction upon request, we find no error in his failure to sua sponte give the instruction, particularly, as here, where the State's contention, based upon the testimony it proffered, was that defendant was in actual possession of CDS and defendant testified that he was not in actual possession. In essence, the factual dispute for the jury to decide focused on the credibility of the witnesses regarding whether defendant was in actual possession and did not require the jury to consider whether defendant was in constructive possession of CDS, where the possibility that the jury might apply the "mere presence" inference would be more acute.
For these reasons, we affirm the convictions, but remand for resentencing in light of the judge's mistaken failure to merge the convictions for sentencing purposes. We do not retain jurisdiction.
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