February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KELVIN L. MCLEAN A/K/A KEVIN MCLEAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-12-1657.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Baxter and Alvarez.
Defendant Kelvin McLean was found guilty by a jury of possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin, N.J.S.A. 2C:35-10a(1) (count four); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); and possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six). He was acquitted of count two, possession of cocaine with the intent to distribute, and count three, possession of cocaine with the intent to distribute within 1000 feet of school property. On August 8, 2007, following merger of counts four and five into count six, defendant was sentenced on count six to a ten-year mandatory extended term with a five-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-6f. A concurrent five-year term was imposed on count one. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.
The facts developed at trial are as follows. At approximately 10:55 a.m. on September 7, 2005, Detective Ronald Altmann, a seven-year member of the Paterson Police Department's Narcotics Division, was on surveillance assignment along with Detective Sergeant Troy Bailey, in the area of Carroll Street near Governor and Harrison Streets. That morning, while seated in the rear of the surveillance vehicle, Altmann saw two hand-to-hand drug transactions conducted from the front passenger seat of a white Mercury Sable. The transactions occurred in a parking area along the side of a building at 43-45 Carroll Street.
After the first suspected hand-to-hand transaction, Altmann changed the surveillance location because the "drug stash" was out of the officers' line of vision. Altmann testified that during the first transaction he saw an unknown individual approach defendant and engage him in a brief conversation. Defendant then walked into the parking area out of the view of the officers. He returned "a minute later and hand[ed] a small item or items to the suspected buyer, who in turn gave defendant a sum of paper money for the suspected CDS." The buyer walked out of view and the surveillance officers radioed a description of the purchaser to the backup teams, who were unable to locate him.
About ten minutes later, at 11:05 a.m., the officers saw a second individual walk through the Inca Village Housing Complex onto Carroll Street and approach defendant. The two men engaged in a brief conversation. Defendant then began to walk in the same direction as he had previously, onto the Harrison Street side of the parking area. The officers changed their location and were able to observe defendant "exiting the front passenger side of a white Mercury Sable that was parked against the building of 43-45 Carroll Street facing out towards Harrison Street." Defendant then handed this second person a small item or items in exchange for "a sum of paper money for the suspected CDS." The backup team was unable to locate the second buyer.
After the second transaction, Altmann directed the backup team to "move in and investigate further." Immediately upon defendant stepping out of the car at Detective Sergeant Mason Maher's request, Detective Mariano Formentin saw a small bundle of heroin located on the passenger floor. Formentin seized the heroin and began to search for contraband underneath the seats and elsewhere in the vehicle. Formentin found a plastic bag containing a loose quantity of crack cocaine in the glove box. Also found in the vehicle was $384; $20 was found on defendant's person. The money consisted of eight $20 bills, four $10 bills, twenty-two $5 bills and ninety-four $1 bills.
During his trial testimony, Maher on one occasion referred to defense counsel as defendant's "public defender." The attorney, who was not a public defender, asked the trial judge not to give a curative instruction as he did not wish to highlight the comment.
When defendant testified, he explained that he had been staying in an apartment at 43-45 Carroll Street with an aunt, who was ill and in the hospital, since his release from prison. He acknowledged three prior indictable convictions. Although he admitted ownership of the cocaine and heroin found at the time of his arrest, he claimed the drugs were solely for his use as he had abused drugs since 1994 or 1995. He categorically denied selling drugs. He said that the morning of September 7, 2005, he was spending time in and out of his car in the parking area because his aunt forbid him from smoking cigarettes indoors. He took out the garbage, listened to CDs in his car, and urinated against the side of the building. Additionally, he played dice games with other people on the street. His aunt had left him with $120, his sole source of funds for food, and he used "dollars" of this money to gamble.
On appeal, defendant raises the following contentions:
THE STATE'S FACT WITNESS IMPERMISS[I]BLY INTRUDED ON THE JURY'S FACT FINDING ROLE BY EXPRESSING AN OPINION ON GUILT REQUIRING A REVERSAL.
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR POSSESSION WITH INTENT AND POSSESSION WITH INTENT WITHIN 1000 FEET OF A SCHOOL.
THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE WITNESS REFERRED TO DEFENSE COUNSEL AS THE PUBLIC DEFENDER.
THE SENTENCE WAS EXCESSIVE UNDER THE FACTS OF THIS CASE.
In his supplemental pro se brief, although not in the form of a point heading, defendant challenges the search of the car both on the grounds that no probable cause existed for the entry and that exigent circumstances did not justify the detective's failure to obtain a warrant.
Defendant asserts it was error for Detective Altmann to testify as follows:
Q: Back to the question that I had previously asked you before we broke here for a second. Based on what you saw that day and, you know, with your training and your experience, what did you think was happening?
A: I believed that [defendant] was involved in two suspected hand-to-hand drug transactions on that date, and that he was keeping his suspected drug stash or drug inventory inside of the white Mercury Sable which was parked in the parking lot on the Harrison Street side of 43-45 Carroll Street.
Defendant's contention is that Altmann's testimony impermissibly expressed an expert opinion as to defendant's guilt. We disagree.
Defendant asserts initially that because the State did not qualify Altmann as an expert, he should not have been permitted to testify as to his opinion that he had witnessed two drug transactions. The State counters by asserting that Altmann's testimony was properly elicited as a permissible lay opinion pursuant to N.J.R.E. 701, which did not require qualification of the witness as an expert. Defendant maintains that because neither suspected purchaser was ever located, and there was no evidence other than the officer's word, Altmann's opinion cannot be considered a lay opinion, as he had no actual knowledge that a drug transaction took place.
N.J.R.E. 701 states:
If a witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
Altmann's testimony concerning both transactions was based upon his observations, which were a rational basis for his conclusion that drug transactions had occurred. See State v. Moore, 181 N.J. 40, 43-44 (2004) (police officer may, based on his experience, testify as to observations of exchanges of money for small objects which led him to conclude he had witnessed a drug transaction).
Contrary to defendant's contention, Altmann did not offer any testimony regarding defendant's guilt. He was not testifying as an expert; rather, he was testifying as a fact witness reporting his perceptions of defendant's conduct while he was being surveilled. Because of his specialized knowledge and depth of experience as a police officer, he was entitled to characterize his perceptions in that manner. Indeed, our Supreme Court has noted that an expert is not necessary to explain transactions such as the ones observed here, in which "each defendant was observed directly handing something to the alleged purchaser and receiving what appeared to be payment in return." State v. Nesbitt, 185 N.J. 504, 516 (2006). See also Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (holding that a detective's testimony that a neighborhood is a high crime area is admissible as a lay opinion). We are therefore satisfied that Altmann's testimony concerning his belief about the occurrences he had perceived was properly admitted as a lay opinion and did not amount to error. It did not usurp the jury's function to determine guilt.
Defendant also contends that the trial judge erred in denying his motions for acquittal as the verdict was against the weight of the evidence. We have considered defendant's contentions and supporting arguments, and are satisfied that the trial judge's denial of his motion to acquit was proper given the entirety of the evidence presented. State v. Reyes, 50 N.J. 454, 458-59 (1967); R. 3:18-1. Defendant argues as follows:
first, that it was incumbent upon the State to produce some expert testimony as to intent to distribute; and second, that the quantity and packaging of the drugs established only possession for personal use.
We find that the claim the verdict was against the weight of the evidence has no merit. A jury could readily infer intent without expert testimony, based on the officer's observations of the two hand-to-hand transactions, and the drugs and cash found in defendant's automobile. The question of defendant's intent was not so complex that it required expert testimony. State v. Vasquez, 374 N.J. Super. 252, 264 (App. Div. 2005).
Additionally, the jury could rationally find defendant's testimony with regard to his possession of the drugs to be, at least in part, incredible. The jury found defendant believable as to his possession of the cocaine, but not the heroin. The details he supplied as to his activities that morning were not particularly credible as reflected, for example, in his testimony about the cash his aunt had given him. He seemed to be saying, since he had just been released from prison, that the only money he had was $120 she gave him for food. Yet he offered no explanation for the fact $404 was found in his car and on his person at the time of arrest.
Defendant also avers that the court should have granted a mistrial when Maher referred to defense counsel as defendant's "public defender." Defense counsel was actually not a public defender. When the court offered to give a curative instruction, defense counsel stated he did not "want to highlight" the reference.
It is well-established that a defendant's financial status may not be presented to the jury as a factor for their consideration in deciding guilt. State v. Mathis, 47 N.J. 455, 469-72 (1966); State v. Terrell, 359 N.J. Super. 241, 247-48 (App. Div.), certif. denied, 177 N.J. 577 (2003). That is entirely different, however, from Maher's passing reference. Furthermore, when defendant testified, he said he had no job and was living on the $120 his aunt gave him while she was in the hospital. He also said that he had used drugs since 1994 or 1995. Defendant's own testimony established his financial circumstances to a far greater extent than any conclusions the jury may have drawn from Maher's passing comment. The comment therefore did not meet the standard necessary for a mistrial. The interests of justice did not require that any action be taken as a result. See R. 3:20-1.
Defendant challenges the sentence imposed as being excessive. In support of this proposition, he argues that the amount of cocaine on his person was modest and the amount of heroin too small to justify a ten-year sentence subject to five years of parole ineligibility. In fact, defendant suggests that his conduct was merely a "technical violation of the statute," as there was nothing about the drug possession that in any way affected either schools or school children.
At the sentence hearing, the State sought a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The State argued that the mandatory sentence was required by defendant's prior conviction of possession of CDS with intent to distribute within 1000 feet of school property. Where a prosecutor applies, pursuant to that statute, before a sentencing court, the sentencing court must impose the enhanced range sentence. State v. Thomas, 188 N.J. 137, 149-50 (2006). When mandatory extended term sentencing is requested, the court need only determine if a defendant has a predicate prior conviction for drug distribution which qualifies him for the enhanced sentence. Id. at 150-51. So long as the predicate prior sentence exists, the extended term must be imposed. Ibid.
The trial court found that defendant, then thirty-five years old, had no work history "because most of his adult life . . . he spent in prison." Defendant's criminal history commenced in 1988 in North Carolina and this was his eighth indictable conviction. Every prior conviction resulted in a prison term. The court found aggravating factor three, N.J.S.A. 2C:44-1a(3), the risk that defendant will commit another offense; factor six, N.J.S.A. 2C:44-1a(6), the extent of his prior criminal history; and factor nine, N.J.S.A. 2C:44-1a(9), the need to deter defendant and others from criminal conduct. No mitigating factors were found. The court accorded aggravating factor three great weight. The court also determined that aggravating factor six had great weight because of defendant's significant prior criminal history. The court stated, with reference to aggravating factor nine, that defendant has not learned from any of his prior sentences.
Defendant asserts that he was repeatedly admonished for disruptive behavior during the proceedings, and that this disruptive behavior improperly influenced the court's sentence given the relatively benign nature of the crimes he committed. For that reason, he suggests that the maximum sentence of ten years with five years of parole ineligibility was an abuse of discretion and excessive. We do not agree.
First, there is ample credible evidence in the record which supports the sentencing judge's findings as to the aggravating factors. We are satisfied from our review of the entire record that the judge reasonably weighed them. State v. Megargel, 143 N.J. 484, 494 (1996). The court's analysis was clear and was warranted. In our view, the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989). It is a sentence which does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).
Finally, we address defendant's supplemental brief. He asserts that there was no probable cause for the entry into the car and that there were no exigent circumstances which justified a search without warrant. The State counters that defendant's failure to move for suppression before trial constituted a waiver of any objection to the admission of the evidence.
We note that at the start of the sentencing proceeding, counsel and the court discussed the need to prepare an order with reference to defendant's motion to suppress, which had been denied before the start of the trial. During the colloquy, defense counsel stated that the reasons for denial of the motion were placed on the record before trial; however, we have not been furnished with any transcript of those proceedings. Obviously, without a record, we cannot make a ruling on the issue. If no motion was made, defendant has waived the issue.
R. 3:5-7(a), (f). See also State v. Johnson, 367 N.J. Super. 27, 33-34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004); State v. O'Neal, 190 N.J. 601, 618 (2007). We are just not certain from our review of the record if that was the case.
We note in passing that the initial entry into the car was made because Formentin saw drugs on the passenger's side floor of the Mercury Sable as he approached with other officers to talk to defendant. This unanticipated plain view observation of suspected contraband in an open vehicle parked in a lot adjacent to a public street would ordinarily provide both probable cause and exigent circumstances making the warrantless search of defendant's car lawful. State v. Pena-Flores, 198 N.J. 6, 11 (2009). Either a motion was filed, and for some unknown reason, the motion transcript was not ordered, or defendant waived his right to pursue such an application pursuant to Rule 3:5-7(f). We decline to address the issue further.
© 1992-2010 VersusLaw Inc.