August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHIM MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Reisner and Chambers.
Defendant Rahim Muhammad appeals from his conviction by a jury of second degree conspiracy to possess, or to possess with intent to distribute, cocaine, N.J.S.A. 2C:5-2, (count one); third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), (count two); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3), (count three); and third degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, (count four).*fn1
At sentencing, the trial court determined that counts one, two and three merged with count four. On count four, the trial court sentenced defendant to six years in prison with a period of three years of parole ineligibility, suspended defendant's driving privileges for twelve months, and imposed the requisite financial penalties and assessments. We affirm.
Defendant presented no evidence at trial, so we ascertain the following facts from the State's evidence presented to the jury. On July 27, 2007, the Newark police were conducting drug surveillance at an intersection in Newark. Officer Celso Vinueza, who is the only officer who witnessed the drug transaction, testified that he was in an unmarked car in civilian clothes observing the intersection with binoculars. He observed an unidentified Hispanic male approach a group of males on the southeast corner of the intersection. A juvenile initiated a conversation with the man, and the man handed the juvenile some currency. The juvenile signaled to the group of males on the southwest corner of the intersection. The unidentified man and defendant, whom the officer identified in court, then began walking together. Defendant retrieved a plastic bag from his waistband and took from it an item which he handed to the man.
Believing that he had witnessed a drug transaction, Officer Vinueza alerted his "take down" unit. An officer from the take down unit testified that he detained the group of males on the southeast corner and, based on the description of clothing from Officer Vinueza, he arrested defendant and the juvenile. He found twenty-seven small Ziploc baggies of cocaine in defendant's waistband. The State also presented the testimony of an expert in drug distribution.
On appeal, defendant raises the following issues:
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL. SUCH DENIAL VIOLATES BOTH BANKSTON*fn2 AND CRAWFORD*fn3 AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL.
THE COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, 10. (Not Raised Below.)
THE ADMISSION OF EXPERT TESTIMONY ON DRUG DISTRIBUTION THAT INCLUDED AN EXPERT'S OPINION THAT DEFENDANT HAD ENGAGED IN DRUG DISTRIBUTION AND WAS INTRODUCED INTO EVIDENCE VIA A FLAWED HYPOTHETICAL, IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, ¶¶ 1, 9, 10. (Not Raised Below[.])
THE STATE FAILED TO PROVE COUNT ONE, CONSPIRACY TO VIOLATE NARCOTICS LAWS, BEYOND A REASONABLE DOUBT. THEREFORE, COUNT ONE, SHOULD HAVE BEEN DISMISSED. (Not Raised Below.)
DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant contends that he was denied a fair trial because a hypothetical question answered by the State's expert witness included facts that were not addressed at trial. The law permits the State to utilize an expert to testify to drug distribution techniques "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). The expert may respond to a hypothetical question that mirrors the facts of the case, and "the hypothetical may be 'expressed in terms of ultimate issues of fact.'" Ibid. (quoting State v. Odom, 116 N.J. 65, 81 (1989)). Based on the facts presented at trial, an expert witness may be asked a hypothetical question about whether, under certain circumstances, drugs were possessed for distribution or personal consumption. State v. Reeds, 197 N.J. 280, 291 (2009). However, the hypothetical question must be based on the evidence presented at trial. State v. Summers, 176 N.J. 306, 314 (2003).
Here, one of the hypothetical questions improperly referenced specified amounts of currency, which was contrary to the proofs presented at trial. Because defense counsel did not object to the question,*fn4 the plain error standard applies.
Although the question was in error, we find that it was harmless in the circumstances because the proofs against defendant were substantial. Twenty-seven baggies of cocaine were found on his person, and a police officer observed him engage in a drug transaction. Further, the expert's opinion did not rest alone on the hypothetical question involving currency. The expert had expressed his opinion on distribution in a preceding series of hypothetical questions that did not mention currency. These earlier hypothetical questions were based on facts in evidence, and the expert's answers supported a finding of distribution. The expert also testified that a person seeking a large quantity of CDS for use would buy in bulk rather than multiple single bags, which would be more expensive.
Defendant also contends that the conviction should be overturned and a new trial ordered because the trial court failed to give an identification charge. Defense counsel did not request this charge or object to the trial court's failure to give it, so the plain error standard applies. R. 2:10-2. Whether the failure to give an identification charge constitutes plain error requiring reversal is "highly fact-sensitive" and depends on the strength of the corroborating evidence. See State v. McNeill, 303 N.J. Super. 266, 272-73 (App. Div. 1997).
In light of the strong corroborating evidence in this case, we find no plain error here. Defendant was observed by a trained police officer who was looking at him through binoculars over a period of time for the purpose of determining if narcotics were being distributed and identifying the people doing so. Shortly after the drug transaction, defendant was apprehended and identified again at the scene by the officer. Further, defendant was found to have on his person twenty-seven baggies containing cocaine. The State's expert witness testified that these baggies were packaged for quick sale. Further, the fact that defense counsel did not object to the charge "suggests that counsel perceived the alleged error to be of no moment, and deprived the trial judge an opportunity to consider the objection and, if appropriate, remedy the instructions." State v. Swint, 328 N.J. Super. 236, 257 (App. Div.), certif. denied, 165, N.J. 492 (2000).
The balance of defendant's arguments are not sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(2).