June 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD TOBIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-11-1863.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Reisner and Chambers.
Defendant Richard Tobin appeals from his conviction for third degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and the four year sentence imposed on December 5, 2008.
On this appeal, defendant raises the following points for our consideration:
THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF HIGHLY INCRIMINATING EVIDENCE WITHOUT A PROPER FOUNDATION SHOWING THAT ITS KEY WITNESS HAD KNOWLEDGE OF THE FACTS BASED ON PERSONAL OBSERVATIONS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION. (Not Raised Below)
A. Other-Crime Evidence Was Improperly Admitted.
B. The Trial Court Failed To Give A Proper Limiting Instruction.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY PREJUDICIAL LOCATION-PROFILING EVIDENCE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT.
POINT VII: THE SENTENCE IS EXCESSIVE.
A. The Sentencing Court Improperly Balanced The Aggravating And Mitigating Factors.
B. The Court Made Findings Of Fact To Enhance The Sentence.
Finding no merit in any of these arguments, we affirm.
The following evidence was presented at the suppression hearing. Sergeant Scerbo testified that he saw defendant making a telephone call from a pay phone that, based on his extensive prior experience, he knew customers frequently used to call drug dealers. Scerbo also heard defendant talking loudly about the fact that he had money but wanted to buy something on credit as well. Based on his suspicions, he followed defendant and observed what appeared to be a drug sale involving defendant and two other individuals. Scerbo alerted his backup officers.
Officer Costigan, who was serving as backup to Scerbo, testified that he and two other officers stopped defendant, who was riding a bicycle. One of the officers ordered defendant to get off the bicycle, and as defendant removed his hand from the handlebar, Costigan saw a bag of heroin fall out of defendant's hand. He retrieved the heroin and placed defendant under arrest.
At the hearing, defendant denied that he possessed drugs. He claimed that he only approached one of the alleged drug dealers to collect a debt and not to buy drugs. He contended that after he was arrested, the police planted drugs on him because he refused to act as an informant. The trial judge found the officers more credible than defendant. The judge found that based on their observation of an apparent drug transaction, the police had reasonable grounds to stop defendant and then had probable cause to arrest him when they found the drugs. He therefore denied the suppression motion.
At the trial, the State presented testimony from Scerbo that was consistent with his testimony at the suppression hearing, and testimony from Officer Chewanek, who participated in stopping defendant and observed the drugs fall from defendant's hand. The State also presented testimony from a chemist who analyzed the drugs. The defense called Officer Costigan, who also testified to stopping defendant and recovering the heroin. Defendant testified that he was merely trying to collect a debt from a friend, when the police spontaneously stopped him, tackled him, and arrested him.
On this appeal defendant contends that certain background testimony was unfairly prejudicial to him. In particular, he argues that the State's witnesses should not have been allowed to testify that they had received prior complaints about drug sales in the area or that the pay phone defendant used was known to be used for drug deals. Defendant contends that this testimony unfairly implied that he was using the phone for that illegal purpose and unfairly implied that anonymous sources were complaining about him. He further argues that this evidence constituted what he characterizes as "location profiling." From these arguments, he extrapolates a further contention that the trial court should have given a N.J.R.E. 404(b) limiting instruction concerning other crimes evidence.
Absent plain error, we will not consider arguments such as these, which were not raised at the trial. R. 2:10-2. This case illustrates the unfairness of withholding trial objections and raising them for the first time on appeal. Defense counsel did not object to any of the testimony to which defendant now ascribes error. Hence, the State had no opportunity to more narrowly focus its presentation to avoid what defendant now claims were possibly prejudicial implications, and the court had no opportunity to craft any limiting instructions.
Plain error is error that "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; R. 1:7-5. "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). On this record, we find no plain error in the admission of any of the challenged testimony or the absence of a limiting instruction.
The purpose of the evidence was to set the context, to explain why the police were in the area in the first place and why the officer was paying such close attention to defendant talking on the pay phone. The evidence of defendant's guilt could fairly be described as overwhelming, and none of the evidence was likely to have caused the jury to convict defendant when they would otherwise have acquitted him. Taffaro, supra, 195 N.J. at 454.
We also find no merit in defendant's arguments concerning alleged hearsay testimony from one of the police officers. Defendant argues that Officer Scerbo should not have been permitted to testify that defendant was found in possession of drugs, when Scerbo did not observe the incident. However, there was no objection to this testimony and the State presented testimony from Officer Chewanek, who participated in stopping defendant and observed defendant in possession of the drugs. Defendant's additional arguments concerning Officer Scerbo's testimony are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We find no merit in defendant's arguments concerning the suppression motion. We are bound by the trial judge's factual findings, because on this record they are supported by substantial credible evidence. See State v. Elders, 192 N.J. 224, 244-45 (2007); State v. Locurto, 157 N.J. 463, 474 (1999). Based on the facts as the judge found them to be, the police had a reasonable articulable suspicion that defendant had purchased drugs, and were thus legally justified in making an investigatory stop. See State v. Stovall, 170 N.J. 346, 356-57 (2002).
Finally, while we appreciate that defendant has a long history of drug addiction, in light of our limited scope of appellate review we find no abuse of discretion or other error in the four-year sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 363-64 (1984). We affirm the sentence without prejudice to defendant's right to file a motion for re-sentencing to an inpatient drug treatment program, pursuant to Rule 3:21-10(b).
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