January 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BLAIR MANNING, A/K/A JUSTIN WOODS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 05-11-1197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Carchman and Parrillo.
Tried by a jury, defendant, Blair Manning, was found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count I); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count II); third-degree possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (Count III); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count IV). After appropriate mergers, defendant was sentenced to a mandatory minimum extended term sentence on the school zone offense, N.J.S.A. 2C:35-7, of seven years with a three-and-one-half year period of parole ineligibility, to run concurrently with an eighteen-month term on the resisting arrest offense.*fn1
Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on July 8, 2005, at approximately 5:25 p.m., Detective William Mulryne of the Trenton Police Department, assigned to the Vice Enforcement Unit, was conducting a narcotics surveillance at the corner of Walnut Avenue and Chambers Street, within 1,000 feet of Trenton Central High School. Approximately twenty to thirty people were gathered at the intersection. The area under surveillance was known for narcotics activity.
At that time, Mulryne observed an individual approach defendant, who was on a bicycle, at the intersection. After moving to the side of a corner liquor store and speaking briefly with the other man, defendant "reached down his right leg area, reached up under his [sweatpants], retrieved some objects from his sweatpants, handed the [. . .] buyer some objects and then received paper currency from him." Detective Mulryne was approximately sixty to seventy feet from defendant, and his view was unobstructed.
A short time later, defendant was approached by a group of four individuals. Again, Mulryne observed that after a brief conversation, defendant "reached down to his ankle, . . . retrieved objects from the same right ankle from underneath his [sweatpants], and . . . handed the objects to each of the individuals[.]" The buyers then handed defendant paper currency. Mulryne believed, based on his experience and training, that he had witnessed defendant engage in two narcotics transactions.
Mulryne then radioed assisting units, relaying a description of defendant riding a bicycle as well as the detective's observations of the suspected drug transactions. Although unable to locate any of the buyers, members of the arrest team observed defendant riding his bicycle on Chambers Street, exited their police vehicle, identified themselves, and told defendant to stop as he was under arrest. Instead of complying, defendant pedaled away from the officers who pursued him on foot, ordering him to stop. Eventually, about three-quarters down the street, defendant lost control of the bicycle as he reached down toward his ankle. At that point, he was placed under arrest and a search of his person revealed 1.24 grams of crack cocaine in his jeans, which were worn underneath his sweatpants. Defendant was also found in possession of $66.
On appeal, defendant raises the following issues:
I. THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY THAT "MERE PRESENCE" ALONE COULD NOT SUSTAIN A CONVICTION. [NOT RAISED BELOW].
II. THE DEFENDANT'S SENTENCE IS EXCESSIVE. We find no merit in these issues. R. 2:11-3(e)(2).
Defendant argues, for the first time on appeal, that the trial court committed reversible error by failing to charge the jury with excerpts from Model Jury Charge (Criminal), "Liability for Another's Conduct - No Lesser Includeds" (May 22, 1995) (the "mere presence" charge). He concedes, however, that no request for this charge, which is part of the general charge on accomplice liability, was made at trial, nor was any objection voiced at trial to the jury instruction actually given.
"Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2." State v. Adams, 194 N.J. 186, 206- 07 (2008). "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citing State v. Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572 (2003). Therefore, this court may reverse only when we find plain error, that is error "clearly capable of producing an unjust result." Adams, supra, 194 N.J. at 207 (quoting R. 2:10-2); see also State v. Martin, 119 N.J. 2, 15 (1990). Here, we discern no error, much less plain error, in the court's jury instructions.
The Court has "reaffirmed the need for jury instructions to relate the law to the facts of a case . . . ." State v. Savage, 172 N.J. 374, 389 (2002). "[T]he test is to examine the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of the case." State v. LaBrutto, 114 N.J. 187, 204 (1989) (emphasis added).
In this case, the judge charged the jury that they were to determine whether the State proved beyond a reasonable doubt that: the evidence seized from defendant was cocaine; defendant possessed cocaine or had it under his control; defendant had the intent to distribute cocaine when he possessed it or had it under his control; and defendant acted knowingly or purposely. This charge accurately reflected the relevant facts of the charged offenses and was not "devoid of reference to the specific circumstances of the case." State v. Gartland, 149 N.J. 456, 475 (1997). As required, the judge comprehensively explained to the jury which questions it must decide, "including the law of the case applicable to the facts . . . ." State v. Green, 86 N.J. 281, 287 (1981).
The "mere presence" charge is inapposite in this case. That charge provides in pertinent part:
Mere presence at or near the scene does not make one a participant in the crime[.] . . . It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed.
While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same. It depends upon the totality of the circumstances as those circumstances appear from the evidence. [Model Jury Charge (Criminal), Liability for Another's Conduct - No Lesser Includeds (May 22, 1995) (emphasis added).]
As is evident from the language employed, the "mere presence" charge is appropriate where a defendant's physical proximity to the criminal acts of the principal, along with other factors, indicates that the defendant was an accomplice, aider, or abettor, to a charged offense. Here, however, defendant was never charged as an accomplice. Rather, the facts clearly indicate that defendant was the principal actor as he was observed selling suspected CDS within 1,000 feet of a school and was thereafter found to be in possession of crack cocaine and currency. These facts simply do not support the rendition of a "mere presence" charge.
Nor was the defense prejudiced by this omission. The defense strategy here was that defendant was misidentified as the drug dealer, not that he was "merely present" at the location of the drug sale. In any event, as the court properly instructed, the jury was required to determine whether, among other things, the State proved beyond a reasonable doubt that defendant possessed cocaine or had it under his control, and, if so, whether he had the intent to distribute cocaine when in his possession or under his control. No doubt, if the jury had believed that defendant was merely present at the scene, and did not participate in the actual drug transaction, it simply would have acquitted him of the charges.
We are satisfied, upon examining the charge in its entirety, that the judge explained the controlling legal principles and tailored the charge to the factual circumstances of the case. Lacking any factual basis, omission of the "mere presence" charge was not error, much less prejudicial to defendant.
Defendant also contends that his sentence was excessive. We disagree.
By way of background, defendant's prior record consists of fifteen juvenile arrests and eight adjudications, as well as ten adult arrests resulting in two prior convictions for possession of a CDS with intent to distribute on or near school property, and two other municipal drug-related convictions. He was therefore eligible for a mandatory extended term based on his prior school zone convictions. N.J.S.A. 2C:35-7. Moreover, by virtue of his present conviction, defendant was subject to a mandatory minimum period of parole ineligibility of between "one-third and one-half of the sentence imposed . . . or three years, whichever is greater. . . ." N.J.S.A. 2C:43-6(f). In imposing the seven-year base term and three-and-one-half-year parole bar, the court balanced aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1(a)(3), (6) and (9), against the sole mitigating factor of defendant's long-term drug and alcohol addiction, N.J.S.A. 2C:44-1(b)(4). These factors were all supported by competent, credible evidence in the record, State v. O'Donnell, 117 N.J. 210, 215 (1989), and we therefore find no warrant for interference with the sentence imposed.