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State v. Brown


February 5, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-02-0499.

Per curiam.


Submitted December 1, 2009

Before Judges Wefing, Messano and LeWinn.

Defendant Timothy Brown appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(b)(3); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). After appropriate mergers, the judge sentenced defendant to an extended term of ten years imprisonment with a five-year period of parole ineligibility on the possession with intent to distribute conviction, and a concurrent ten-year term with a five-year parole disqualifier on the conviction of possession with intent to distribute within 500 feet of public property.

Defendant raises the following issues on appeal;

















We have considered these arguments in light of the record and applicable legal standards. We affirm.


Defendant was indicted along with co-defendant Michael A. Robinson who entered a guilty plea prior to trial. Defendant was tried alone.

Atlantic City Police Detective Owen Ingenito testified that on December 28, 2005, he arrested Rachel Andrews, a/k/a Barbie, for prostitution. While in custody at the police station, Andrews told Ingenito that "she had some information she wanted to talk about." Ingenito had Andrews speak to Sergeant James Sarkos.

After speaking to the woman, Sarkos watched Andrews dial a number on her cell phone, and listened to the ensuing conversation between Andrews and an unidentified male voice. Sarkos testified:

When [Andrews] dialed the number, I could hear a male's voice answer the phone. He said: Hello.

She then asked for Timmy.

The male says: No, it's Mike.

And . . . she says: Mike, it's Barbie.

And he says: What's up, Barbie girl?

And she then asked for Timmy and he informs her that Timmy is at Caesar's and asked her what does she need and she says an eight ball.*fn1

He then says: I'll get Tim and I'll call you back.

Several minutes after this conversation, Andrews's phone rang. Sarkos again listened to the conversation:

She answered the phone. She said: Hello.

[A] [v]oice replied: What did you need?

I could tell it was a male voice and it was different than the first voice from the previous conversation. [Andrews] says: Eight ball .

. . . I'm on a date. I'm at the Taj Mahal. Meet me on Pennsylvania Avenue.

The voice then said: How much do you got? She says: Three hundred. It's three hundred, right? I'm on a date. He has three hundred.

The voice then says: I'll be right there with Mike. I got to get it together.

She says: What car you got? The Saturn?

He replied: Yeah.

She says: I'll meet you on Pennsylvania Avenue.

And he says: Okay.

Sarkos did not record the conversations, but rather took notes that he incorporated into his report and then destroyed.

After hearing the conversations, Sarkos called Detective Rudy Lushina and instructed him and his partner, Detective Jaimee Moore, "to respond to Pennsylvania Avenue next to the Taj Mahal and wait there." Andrews received another phone call; Sarkos once again listened in, and heard the same male voice from the last conversation.

The voice says: I'm outside Pennsylvania Avenue. Where you at?

She says: I'm on my way down.

And he says: I'm sending Mike in.

She says: Okay. And they hang up.

During this conversation, Sarkos again called Lushina, advised him of the substance of the conversation, and that he should be looking for a four-door silver Saturn, with two men, one talking on the phone, and the other about to leave the car.

Lushina saw a Saturn drive past his location, make a U-turn, and stop next to the door of the Taj Mahal casino on Pennsylvania Avenue. The car contained two men, one of whom was talking on a cell phone. The passenger, later identified as Robinson, exited the vehicle and entered the Taj Mahal; after approximately thirty seconds, Robinson returned to the vehicle and appeared to have a conversation with the driver, later identified as defendant. Robinson again exited the car and entered the casino, only to return to the Saturn five minutes later.

Lushina, Moore, and other officers approached the vehicle with weapons drawn. When asked by the prosecutor why they drew their weapons, Lushina responded, "We were investigating a narcotics investigation [sic] in reference to possible drug dealers and there's a high probability that they might have been armed with some type of weapon." Defense counsel immediately objected, and the judge gave a curative instruction, telling the jurors to "disregard the response concerning the propensity for people involved in drugs [to be] in [the] habit of using guns. It's not an issue in this case. You should disregard it."

Lushina testified that after removing Robinson from the vehicle, he asked him where the drugs were located. Robinson told him they were in his pocket, which Lushina subsequently searched, finding "seventeen small bags of cocaine wrapped inside of a sandwich baggie." Moore also "recovered seven bags of powder cocaine and one [bag] of rock cocaine" from Robinson's right pants pocket. When the officers searched the Saturn, they seized defendant's cell phone; he, too, was searched, but no drugs were found.

When defendant and Robinson were taken to the Atlantic City Police Station, Sarkos spoke to defendant. He recognized defendant's voice as that of the male he heard during the second and third conversations on Andrews's cell phone.



Defendant argues that the seizure of the cocaine from co-defendant Robinson was unlawful. Before trial, the judge conducted an evidentiary hearing on defendant's motion to suppress. Defense counsel clearly indicated that the motion only pertained to the seizure of defendant's cell phone, and the record of calls made and received on it. After the hearing, the judge granted defendant's motion and suppressed any evidence regarding defendant's cell phone and any record of calls.

In refusing to consider an issue regarding the execution of a search warrant that was not raised before the trial court, the Supreme Court recently noted, "Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). "[T]he points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid. Having specifically waived any challenge before the trial court as to the seizure of the drugs found on Robinson, we decline the request to consider the issue for the first time on direct appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).


Defendant argues that Sarkos's testimony regarding the conversations he overheard between Andrews and the two, then-unidentified men was hearsay and should have been excluded. At trial, over defendant's objection, the judge admitted the testimony under the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5).

Initially, we note that Sarkos identified defendant's voice as the one he heard during the last two conversations on Andrews's cell phone. Thus, those statements were clearly admissible under N.J.R.E. 803(b)(1) (a "party's own statement" is not excluded by the hearsay rule).

Under the co-conspirator exception to the hearsay rule, "statements made 'at the time the party and the declarant were participating in a plan to commit a crime' and 'made in furtherance of that plan,' are admissible . . . ." State v. Savage, 172 N.J. 374, 402 (2002)(quoting N.J.R.E. 803(b)(5)). In addition, for the exception to apply, "there must be 'evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.'" Savage, supra, 172 N.J. at 402 (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)). The State bears the burden of proving this third prong of the admissibility standard by a preponderance of the evidence. Phelps, supra, 96 N.J. at 518.

Defendant's sole argument on appeal is that the State failed to demonstrate that a conspiracy existed by sufficient evidence independent of the hearsay. However, in considering the sufficiency of the State's proofs regarding the co-conspirator exception to the hearsay rule, the trial judge is "not preclude[d] . . . from considering some hearsay evidence in conjunction with independent evidence." Id. at 511. "When the coconspirator's hearsay statement is used because of its inherent reliability, it ought to be considered in tandem with the independent corroborative proof." Id. at 512.

Here, not only was some of testimony based upon statements actually made by defendant, much of it involved statements made by Andrews, herself a co-conspirator. See State v. Conway, 193 N.J. Super. 133, 159-60 (App. Div.) ("[U]ndercover agents can be conspirators for the purpose of proving that a conspiracy existed"), certif. denied, 97 N.J. 650 (1984)). Andrews made the statements while she was in police custody and under direct observation. Under the circumstances, Sarkos's testimony regarding what Andrews said was inherently reliable.

The independent corroborative proof of the existence of a conspiracy was bountiful. Lushina observed defendant and Robinson arrive at the Taj Mahal together in the Saturn. While defendant waited in the car outside, Robinson entered the casino, only to return a short time later and converse with defendant. Almost immediately thereafter, Robinson went back into the casino while defendant again waited outside in the Saturn. Five minutes later, Robinson again left the casino and returned to the car.

These observations coincided with the arrangements that had been made during the phone conversations Andrews had with the two men. Considering the totality of the evidence, the State met its burden of proving the existence of a conspiracy, thus making Sarkos's testimony regarding the out-of-court statements made by defendant, Andrews and Robinson admissible.


Defendant next contends that Lushina's testimony that he and his fellow officers approached the Saturn with guns drawn because they were "investigating . . . possible drug dealers and there's a high probability that they might have been armed with some type of weapon" amounted to prosecutorial misconduct. He further contends that the judge's curative charge was inadequate. We disagree.

While Lushina's answer to the prosecutor's question was improper, it was also unanticipated. At the sidebar that followed, the prosecutor indicated that he expected Lushina to simply say that the officers drew their guns for their own safety. Moreover, the testimony was contained in a single answer, was immediately objected to by defense counsel, and was immediately the subject of a strong, curative charge by the judge. See State v. Echols, 199 N.J. 344, 360 (2009) (noting the "responsiveness of counsel and the court to the improprieties when they occurred" as factors in considering whether misconduct requires reversal) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). Any error in this regard was sufficiently addressed by the judge and was rendered harmless. See R. 2:10-2.


At the conclusion of the testimony, before summations and the jury charge, defendant moved to suppress the testimony Sarkos gave regarding the conversations he overheard on Andrews's cell phone. He argued that although Sarkos did not record the conversations, he testified from "verbatim" notes. Defense counsel argued there was essentially no "distinction" between the two, and that the evidence should be suppressed pursuant to State v. Worthy, 141 N.J. 368 (1995). See N.J.S.A. 2A:156A-21(a) (specifically permitting an "aggrieved person . . . [to] move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom"). The judge denied the request, concluding that "[t]he statute requiring consensual authorization by the Prosecutor d[id] not apply." Defendant reiterates the argument before us.

The New Jersey Wiretapping and Electronic Control Act, N.J.S.A. 2A:156A-1 to -34 (the Act), makes it unlawful for any party to "intercept any wire, electronic or oral communication . . . ." N.J.S.A. 2A:156A-3(a). The Act defines "intercept" as "the aural . . . acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device . . . ." N.J.S.A. 2A:156A-2(c) (emphasis added).

"Electronic, mechanical or other device" means any device or apparatus, . . . that can be used to intercept a wire, electronic or oral communication other than:

(1) Any telephone or telegraph instrument, equipment or facility, . . . furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties . . . . [N.J.S.A. 2A:156A-2(d)(1).]

Under the Act, a party, acting at the direction of law enforcement, may lawfully "intercept" a conversation, "provid[ing], however, that no such interception shall be made without the prior approval of the Attorney General . . . or a county prosecutor . . . ." N.J.S.A. 2A:156A-4(c). In Worthy, supra, the Court suppressed conversations between the defendant and the State's informant recorded with his consent because the investigator failed to secure the necessary "prior approval." 141 N.J. at 385-86. Defendant's reliance on Worthy, supra, however, is misplaced.

We have long recognized that "without the use of an electronic mechanical or other device . . . an overhearing is not an 'intercept' within the meaning of the [A]ct." State v. McDermott, 167 N.J. Super. 271, 277 (App. Div. 1979). Here, Sarkos used no device whatsoever; he listened to the calls Andrews placed and received, and he wrote notes of the conversations. His notepad is not the equivalent of an interception device for purposes of the Act, and the judge properly reasoned the Act had no application to the facts presented.


In his opening statement, defense counsel told the jurors that "the only people that will be testifying in front of you are police officers." The prosecutor objected claiming this was a "back door comment in violation of Clawans."*fn2 The judge overruled the objection "seeing [no] reason to step in."

The issue again arose at the end of the testimony and during the charge conference. Although it is somewhat unclear from the transcript, defense counsel apparently requested the judge give a Clawans charge because the State failed to call either Andrews or Robinson as a witness. After extended colloquy, the judge concluded that he would not give the charge; instead, he permitted defense counsel to make "fair comment" on the absence of the witnesses, "as long as he d[id not] argue that [the jury] [c]ould draw an inference that [the witnesses'] testimony would have been contrary to the State's interest." In summation, defense counsel made no direct comments regarding the absence of Andrews or Robinson from the trial.

Defendant now contends that the judge committed reversible error in not giving a Clawans charge. We disagree.

A Clawans charge recognizes "the 'natural inference" that may arise from an adversary's failure to call a witness . . . ." State v. Hill, 199 N.J. 545, 559 (2009) (quoting Clawans, supra, 38 N.J. at 170). The Court recently provided guidance regarding the trial judge's "critical" role in determining the propriety of such a charge:

[A] court must demonstrate that it has taken into consideration all relevant circumstances by placing, on the record, findings on each of the following: "(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven." [Hill, supra, 199 N.J. at 561-62 (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

In this case, the prosecutor indicated that all efforts to locate Robinson had been fruitless; he also indicated that he did not attempt to find Andrews because her testimony would not be superior to that of the other State's witnesses. Defense counsel indicated that his attempts to find Andrews were unsuccessful. The judge concluded that since both Robinson and Andrews were charged with various offenses by the State, both "would . . . likely . . . be so prejudiced against the [State] that [it] could not . . . expect[] to obtain the unbiased truth from [them]." See Clawans, supra, 62 N.J. at 170.

Neither Andrews nor Robinson was "peculiarly within the control or power of only the" State. Hickman, supra, 204 N.J. Super. at 414. Nor was either apparently "available to th[e] [State] both practically and physically . . . ." Ibid. Defendant was therefore not entitled to a Clawans adverse inference charge because the State failed to call either Robinson or Andrews as a witness.

Based upon the foregoing, defendant's argument that the effects of cumulative errors require reversal, State v. Orecchio, 16 N.J. 125, 129 (1954), is without merit. See R. 2:11-3(e)(2).


In Point V, defendant raises two issues regarding the jury. First, he claims that jury selection procedures in Atlantic County systematically excluded minorities in violation of his Constitutional rights; second, he claims there were "irregularities in selecting alternate jurors, which resulted in the designation of the only Afr[ican]-American juror as an alternate." We are persuaded that neither argument has merit.


During jury selection, after the prosecutor utilized a peremptory challenge to excuse one of two African-American jurors seated on the jury, defense counsel objected and moved to have the judge compel an explanation from the prosecutor regarding his use of the challenge. Noting the racial composition of the jury venire, defense counsel stated that "[t]here are only seven minorities out of sixty-five people." The judge did not grant defendant's request, finding it was the first challenge the prosecutor used to excuse an African-American juror and that no "pattern" had been shown. Nevertheless, the prosecutor provided his reason for excusing the juror, i.e., that the excused juror, an African-American woman, was "married to a State Trooper" and was now divorced. He thought it possible that she might "harbor animosity toward police officers . . . ." The prosecutor's use of his peremptory challenges did not arise again.

After the jury charge, the court clerk selected the alternate jurors, one of whom was the only remaining African-American on the jury. Defense counsel requested a sidebar. He again noted that the original jury venire consisted of 65 jurors with only 7 minority jurors. Defense counsel claimed this was an extraordinarily low number considering that minorities comprised "twenty percent" of Atlantic County's population.*fn3

Noting that defendant "[wa]s a black individual," counsel argued that the juror selection process "w[as] resulting in a disproportionate amount of whites and not a fair representation of blacks either . . . and in this case no African-American jurors on the jury." Defendant, however, sought no specific relief.

The judge first noted that "a challenge to the array must be made before trial . . . ." He nonetheless concluded that defendant had failed to demonstrate "something occurring systematically" that resulted in minority under-representation in the jury pool.

During deliberations, after responding to a question from the jurors and instructing them to continue their deliberations, the following exchange occurred:

[Defense counsel]: I want to put on the record . . . some concerns that my client's family raised with the picking of the alternates. They asked me how that's done. They asked me whether there's proof that all of the alternates -- all of the jurors' names are on the scrolls and whether the person that selected them, the Clerk, can see the numbers when they're picked out. That's some of the issues that are raised.

I went over and showed to my client the scrolls and how the names of the jurors are on the inside and numbers are on the outside, but that, in fact, there is representation of all fourteen jurors on the scrolls. I asked the Clerk how it's done and she says that she spins the wheel, it comes up to the top, she reaches in, can't see through it and picks out.

The Judge: She did it in open Court. [Defense Counsel]: I understand, but what was seen allegedly by family members and what happened may be two different things. . . . I think his family members are indicating that they believed that it was done and then done again. So their allegation, at least to me, and my client isn't saying this, but the family members are saying this, that the Clerk saw a number and then spun it again and picked a different number. That's what is being alleged. I do want to bring it to your Honor's attention. . . .

The judge held a hearing to permit defense counsel "to offer his proofs as to an alleged irregularity in the selection of the alternate jurors . . . ."

Defendant's son, Darrel Adams, testified, as did the court clerk and two sheriff's officers, one of whom monitored the security cameras that captured events in the courtroom. The videotape from those cameras was eventually reviewed, but the movements of the clerk in selecting the alternate jurors from a "drum" were not seen on the tape. The judge found that based upon all of the evidence, no impropriety in selecting the alternates had occurred.


The Equal Protection clause requires the "selection of . . . jurors . . . be free from any taint of discriminatory purpose." State v. Ramseur, 106 N.J. 123, 215 (1987) (citation omitted). The Sixth Amendment requires that "petit jurors . . . be drawn from pools that represent a 'fair-cross section' of the community . . . ." Ibid. "To prove either an equal protection or fair cross-section claim, a defendant must": (1) "identify a constitutionally cognizable group, i.e., a group capable of being singled out for discriminatory treatment[;]" (2) under equal protection, prove "'substantial under-representation' over a significant period of time, [and] . . . under the [S]ixth [A]mendment[,] . . . show that the representation of the particular group is not 'fair and reasonable' over a period of time[;]" and (3) under equal protection, prove "discriminatory purpose, either by the strength of his statistical showing or by demonstrating the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial under-representation." Id. at 215-16 (citation omitted). Under the Sixth Amendment, "the defendant need not show purposeful discrimination but must show merely that the under-representation was due to systematic exclusion." Id. at 216 (citation omitted). Once a defendant "prove[s] the three prongs[] under either the equal protection or fair cross-section tests, the defendant has made out a prima facie case[,] and the State must establish a rebuttal case, which also varies under the two tests." Ibid.

Applying these standards to the facts presented, it is quite clear that defendant failed to establish a prima facie case under either the Equal Protection clause or the Sixth Amendment. Defendant failed to demonstrate that the jury selection processes in Atlantic County resulted in a "'substantial under-representation' [of minority jurors] over a significant period of time[;]" or, that the representation of African-Americans was not "fair and reasonable." Ramseur, supra, 106 N.J. at 215. Moreover, defendant failed to demonstrate any systematic exclusion of minority jurors, or any discriminatory purpose on the part of the county's jury management staff. Defendant's arguments regarding the under-representation of minority jurors on his jury panel are without merit.

Rule 1:8-2(d)(1) provides that "the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged." In his brief, defendant argues that the hearing conducted by the judge resulted in "inconclusive" "testimony." He contends, without any authority, that the judge should have "stay[ed] jury deliberations and redo[ne] the alternate selection process under the watchful eye of the court." We find the argument to be of insufficient merit to warrant any extensive discussion in this opinion. See R. 2:11-2(e)(2). The judge heard the testimony of the various witnesses and reviewed the videotape of the proceedings. His findings that there were no irregularities in the selection of the alternate jurors are entitled to our deference. See State v. Locurto, 157 N.J. 463, 472 (1999).


In light of defendant's eight prior convictions, all of which were "for offenses relating to possession and/or distribution of narcotics[,]" the judge imposed a mandatory extended term on defendant's conviction for possession with intent to distribute. See N.J.S.A. 2C:43-6(f). He also imposed the maximum ten-year sentence on defendant's second-degree conviction for possession with intent to distribute within five-hundred feet of public property. Defendant argues that these sentences were manifestly excessive. He contends that the judge erred in finding that aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), applied, and that a proper sentence should have been "at the low end of the statutory range." We disagree.

In sentencing, a trial court's role is to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 216 (1989); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Our role is different. Id. at 215.

An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. [State v. Cassidy, 198 N.J. 165, 180 (2009) (quoting O'Donnell, supra, 117 N.J. at 215-16 (citations omitted).]

As the judge found, defendant has eight prior convictions as an adult and has already spent twelve years in prison as a result. All the convictions involved the possession or distribution of narcotics. Despite this history, defendant was apparently undeterred, and once again stood before the court facing sentencing for similar offenses. The judge appropriately found that defendant was likely to re-offend, had an extensive and serious prior criminal record, and needed to be deterred. He also appropriately found no mitigating factors. The sentence he imposed does not "shock[] [o]ur conscience." O'Donnell, supra, 117 N.J. at 215-216 (citing State v. Roth, 95 N.J. 334, 365 (1984)). We find no basis to disturb it.


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