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State v. Salomon


June 15, 2010


On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-09-861 and 07-06-557.

Per curiam.


Submitted January 12, 2010

Before Judges Wefing, Grall and Messano.

Defendant appeals from his conviction and sentence on two indictments. Finding no harmful error and no abuse of the judge's sentencing discretion, we affirm.

Tried to a jury with his co-defendant Philip Thomas on Indictment No. 06-09-861, defendant Land Salomon was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. The jury acquitted Thomas.

Prior to his sentencing on Indictment No. 06-09-861, defendant pled guilty to a separate charge of third-degree possession of cocaine with intent to distribute alleged in a second indictment, Indictment No. 07-06-557. Due to convictions entered prior to his trial and plea, defendant qualified for a mandatory extended-term sentence with a minimum three-year term of parole ineligibility on his convictions for possession with intent to distribute in violation of N.J.S.A. 2C:35-5a(1).

N.J.S.A. 2C:43-6f. His guilty plea was entered pursuant to an agreement under which the State would recommend a five-year sentence, which is the minimum extended-term sentence, with a three-year period of parole ineligibility to run concurrently with the sentence on Indictment No. 06-09-861.

Defendant was sentenced on both indictments in one proceeding. The State waived its application for extended-term sentences on Indictment No. 06-09-861 but not on Indictment No. 07-06-557.

On Indictment No. 06-09-861, defendant's convictions for possession and possession with intent to distribute were merged with his conviction for possession with intent to distribute within 500 feet of a public park. The judge imposed the appropriate fines, penalties and assessments and sentenced defendant to a seven-year term of incarceration with a three-year period of parole ineligibility. On Indictment No. 07-06-557, defendant was sentenced to an extended term of five years, with a three-year period of parole ineligibility, which is the minimum period mandated. That sentence is concurrent with the sentence he received under Indictment No. 06-09-861.

This is the evidence that was presented at defendant's trial. Around 3:00 p.m. on June 4, 2006, Officers Vincent Flatley and David Conrad were conducting a surveillance of Jefferson Park in Elizabeth, an area known to the officers for narcotics transactions. They saw a woman approach Thomas and hand him money, which he put in his pocket. Thomas gestured to defendant, and defendant approached them, reached into his back pocket and handed the woman something small. She placed it in her pocket, walked away, got into a green car, and drove off.

The officers contacted others who were serving as their back-up, Officers Amilcar Colon and Kimberly Borras, to arrest defendant. Colon and Borras drove to the park and went up to defendant and Thomas. When defendant was arrested he had fifteen small plastic bags containing crack cocaine and $254.00 in cash. Thomas had $174. The officers did not find the woman.

On appeal, defendant challenges the jury verdict but not the factual basis or validity of his guilty plea. He also contends that his sentences on both indictments are excessive. He raises the following issues:




The first claim is based upon this portion of Officer Colon's testimony:

Colon: [Officers Conrad and Flatley] contacted us via Nextel that the two individuals were in the park, known to them as Land Salomon and Philip Thomas, that they were -

Prosecutor: Let me ask you, did you know

Land Salomon and Philip Thomas?

Colon: Yes, I did.

Prosecutor: How did you know them?

Colon: From the area. I've known them from working the post. Prosecutor: Had you seen them around the community?

Colon: Yes, I have.

There was no objection to the testimony. The claim, therefore, is subject to review for plain error. R. 2:10-2; State v. Taffaro, 195 N.J. 442, 454 (2008).

It is improper for the State to present testimony suggesting a defendant's prior involvement with criminal activity and tending to suggest the defendant's propensity for criminal activity. State v. Ramos, 217 N.J. Super. 530, 538 (App. Div.), certif. denied, 108 N.J. 677 (1987). Evidence of a defendant's prior bad acts is admissible only for limited purposes and subject to jury instructions explaining the permissible uses of the evidence and prohibiting an inference based upon propensity for criminality. N.J.R.E. 404(b); State v. Blakney, 189 N.J. 88, 92-93 (2006).

There is no question that the testimony to which defendant objects would have permitted the jurors to draw an impermissible inference - that defendant was a person known to the police because of his involvement in prior criminal activity. Colon suggested that he and the officers conducting the surveillance knew defendant and Thomas by name. At least with respect to Colon, his testimony subtly suggests he acquired that knowledge in the performance of his duties - from "working the post." That testimony was improper.

The trial judge, however, gave the jury an instruction that precluded them from drawing the impermissible inference suggested. He directed:

Both of the witnesses who are policemen testified that on the date of the alleged offense June 4th, 2006, they observed Land Salomon and Philip Thomas and they recognized both individuals from the community/area. You are not to consider the fact that the police officers recognized the defendants as prejudicing them in any way.

There are a variety of legitimate reasons as to why legal law enforcement would come into contact with individuals on streets, which are totally unconnected with criminal activity. This recognition of the defendants by the officers is not evidence that the defendants have ever been arrested or convicted of any crimes and may not be considered by you as proof of the same.

In the absence of evidence to the contrary, we presume that jurors follow limiting and curative instructions given by the trial court. State v. MacIlwraith, 344 N.J. Super. 544, 547 (App. Div. 2001). In this case, there is nothing to suggest the jurors disregarded the judge's direction.

In fact, the verdict suggests that the jurors considered evidence that was properly admitted. The impermissible inference applied equally to defendant and Thomas, but the jurors acquitted Thomas and convicted defendant. The verdict is consistent with the relative strength of the State's evidence implicating defendant and Thomas; the State's proofs against defendant were more persuasive. Defendant was the person who was in possession of fifteen bags of crack cocaine and the person who had been seen, moments before, removing something from his pocket and giving it to the woman with Thomas.

Because the judge gave an instruction addressing the prejudice and there is nothing in the record that suggests the jurors ignored that direction, we cannot conclude that the improper testimony led the jurors to reach a verdict they would not have returned had Colon not testified that the officers knew defendant by name. Given the judge's ameliorative action, the improper testimony was harmless. R. 2:10-2; Taffaro, supra, 195 N.J. at 454.

Defendant also claims that the evidence was inadequate to permit the jury to find him guilty of possession of crack cocaine with intent to distribute. That claim warrants only brief comment. R. 2:11-3(e)(2). Evidence is adequate when, viewed in the light most favorable to the State, it is sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 458-59 (1967).

Assuming the jurors believed the testimony of the officers, they could find that defendant, who was in Jefferson Park, had fifteen bags of cocaine on his person within minutes of taking something from his back pocket and giving it to a woman who had paid Thomas. The officers' testimony about the transaction they saw and the drugs in defendant's possession described events sufficiently proximate in time and place to inform the jurors' understanding of defendant's purpose for carrying fifteen bags of crack cocaine. That evidence, along with the reasonable inferences arising from it, was more than adequate to permit reasonable jurors to find that defendant, while within 500 feet of the park, held the cocaine he had at the time of his arrest with the intent to distribute it. See State v. Lewis, 185 N.J. 363, 371 (2005) (discussing the elements of the crime).

Defendant argues that expert testimony was required. "[E]xpert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (emphasis added). In this straightforward case, we question whether expert testimony would have been properly admitted but have no doubt that the State did not need an expert to prove its case.

We also reject defendant's claim that the concurrent sentences imposed on these separate indictments were excessive. After considering the evidence presented at trial and at the sentencing hearing, including defendant's criminal history and the evidence he offered in mitigation, the judge found three aggravating factors - a risk that defendant would commit another offense; defendant's prior record; and the need for deterring defendant and others. N.J.S.A. 2C:44-1a(3),(6),(9). The judge did not, as defendant argues, overlook evidence defendant offered in mitigation. Rather, the judge rejected defendant's claim that his efforts to address his drug addiction and the letters submitted on defendant's behalf established mitigating factors.

The judge's findings of fact are supported by the record, and this court has no authority to substitute its assessment of the significance of those facts or the balance of aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010). Accordingly, there is no basis for this court to disturb the judge's conclusion that the aggravating factors "substantially outweigh" the non-existent mitigating factors.

The sentences the judge imposed were within the applicable statutory range and consistent with the judge's assessment of the aggravating and mitigating factors. Defendant was sentenced to a seven-year term and a discretionary three-year term of parole ineligibility on his conviction for the second-degree crime of possession with the intent to distribute within 500 feet of a public park. The sentence is within the range of ordinary sentences for a crime of the second degree. N.J.S.A. 2C:43-6a(2); State v. Natale, 184 N.J. 458, 487-88 (2005). Parole ineligibility terms may be imposed pursuant to N.J.S.A. 2C:43-6b when the judge is "clearly convinced that the aggravating factors substantially outweigh the mitigating factors," even when the sentence is not above the midpoint of the range. State v. Bowens, 108 N.J. 622, 639 (1987). While the judge did not expressly state that he was "clearly convinced" of the relative weight, the judge conveyed that degree of certainty by stating that the aggravating factors substantially outweighed the non-existent mitigating factors.

Defendant's sentence on the second indictment was to an extended term for a third-degree crime. Based upon a prior conviction for possession of a controlled substance with intent to distribute and upon the State's application, the judge was required to impose an extended term and a mandatory parole ineligibility term of no less than three years. See N.J.S.A. 2C:43-6f (enumerating the crimes including N.J.S.A. 2C:35-5). For a crime of the third degree, the range for an extended term is five to ten years. N.J.S.A. 2C:43-7a(4). Thus, defendant received the minimum sentence and the minimum period of parole ineligibility. In addition, he received the benefit of a plea bargain under which the State recommended concurrent sentences on both indictments despite the fact that the crimes were committed on different dates.

There is no basis for finding that the judge disregarded the sentencing law or the record in exercising his discretion to fix either sentence, and neither sentence is shocking to the judicial conscience. Bieniek, supra, 200 N.J. at 608; State v. Cassady, 198 N.J. 165, 180-81 (2009). Accordingly, we affirm defendant's sentences.



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