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State v. Carswell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARNETT CARSWELL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1512.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Lihotz and Ashrafi.

Defendant Garnett Carswell appeals from his conviction by a jury on charges arising from the sale of heroin and the extended term sentence imposed by the court. We affirm.

Defendant was arrested and charged with four co-defendants on April 23, 2006, following street surveillance by the Jersey City Police. At about 11:30 a.m. on that date, Detective Amy Hulings and other officers were conducting surveillance for drug transactions in the area of Martin Luther King Drive and Myrtle Avenue. Detective Hulings followed the activities of two women and two men who approached defendant and another man named Jasan Allen standing together at a fence near 180 Myrtle Avenue. From her vantage point directly across the street from the Glenn Cunningham Library on Martin Luther King Drive, Hulings saw three of the individuals hand money to defendant. Allen then took a black box from his jacket pocket and gave small items to each of the three.

After the three individuals left the area, perimeter police units stopped each and recovered small packages of heroin. Defendant and Allen were also apprehended. The black box was recovered from Allen and inside were nineteen bags of heroin. Defendant did not have any drugs on his person but was found to be in possession of $129.

Defendant was indicted on fourteen counts: one count of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); one count of third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); one count of third- degree possession of heroin with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; one count of second-degree possession of heroin with intent to distribute within 500 feet of a public building, the Glenn Cunningham Library, N.J.S.A. 2C:35-7.1; three counts of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and b(3); three counts of third-degree distribution of heroin within 1,000 feet of a school, N.J.S.A. 2C:35-7; three counts of second-degree distribution of heroin within 500 feet of a public building, N.J.S.A. 2C:35-7.1; and one count of conspiracy to distribute heroin, N.J.S.A. 2C:5-2. Following trial before a jury, defendant was convicted on ten of the fourteen counts, including two counts of the second-degree offenses because of proximity to the public library.

Defendant filed motions for acquittal on the two second-degree charges and for a new trial as to all counts of conviction. The trial court denied the motions on the date of sentencing. The court granted the State's motion to sentence defendant to a discretionary extended term under N.J.S.A. 2C:44-3 because of his four prior indictable convictions.

After appropriate mergers of counts, defendant was sentenced to thirteen years in prison with six and a half years to be served before parole eligibility on count four of the indictment, charging second-degree possession of heroin with intent to distribute within 500 feet of a public building. Lesser sentences of imprisonment and parole ineligibility on three other counts that were not merged were to run concurrently to the sentence on count four. The court also imposed appropriate money penalties as required by statute.

On appeal, defendant raises the following points:

POINT I

THE ABBREVIATED VOIR DIRE BY THE TRIAL JUDGE DID NOT RESULT IN A FAIR AND IMPARTIAL JURY AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND WARRANTS A REVERSAL.

POINT II

THE DEFENDANT'S CONVICTION ON COUNT TWO [sic] IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, AN ELEMENT OF THIS OFFENSE, THAT DEFENDANT DISTRIBUTED THE CDS WITHIN 500 FEET OF A PUBLIC BUILDING, THEREFORE, THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

POINT III

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL

POINT IV

THE SENTENCE IMPOSED BELOW WAS MANIFESTLY ESCESSIVE.

Defendant contends that the jury voir dire denied him a fair trial because it was "abbreviated," the jurors were confused, and defense counsel's concerns were not addressed. He argues that the trial judge's decision not to question each prospective juror individually violated Administrative Office of the Courts Directive #21-06 issued December 11, 2006.

As a result of the bar's widespread dissatisfaction with prior voir dire practices, the Supreme Court established a special committee to study the issue, and the committee presented a number of recommendations to the Court. The Administrative Office of the Courts (AOC) then issued two directives pertaining to jury voir dire. Directive #21-06 mandated certain procedures for voir dire. See Pressler, Current N.J. Court Rules, comment 1.2 on R. 1:8-3 (2010). It required that trial judges ask each individual juror a set of standard questions in addition to questions tailored to the individual case. See Model Jury Selection Questions, Standard Jury Voir Dire, Criminal.

Soon, however, trial judges reported that the requirement of individual questioning of jurors on every required question was counterproductive and caused unnecessary delay in trials. On May 16, 2007, the AOC issued Directive #4-07, which supplemented and substantially modified the previous directive. Pressler, supra, comment 1.2 on R. 1:8-3.

The first modification authorizes judges to conduct jury voir dire without asking each standard question individually of each juror. Under this alternative procedure, the questions must be provided to jurors in print and a certain number of questions requiring narrative responses must still be asked of each individual juror. See Administrative Office of the Courts Directive #4-07 (May 16, 2007). That was the procedure the trial court followed in this case.

The trial judge asked the entire array of jurors the first six questions of the standard list of questions, and he excused those that expressed a disqualifying answer. The court then seated fourteen jurors in the box and provided all the remaining jurors with the standard questions up to number twenty-seven in printed form. The judge instructed the jurors to answer by checking any question to which they had a "yes" answer or did not fully understand. He also told the jurors that the questions would not be asked again but those jurors called into the box would be asked about their yes answers.

Individually, jurors that were seated were each asked a biographical question, some open-ended questions, and two omnibus qualifying questions that required narrative answers. The judge also offered jurors the opportunity to discuss any questions individually at sidebar. This jury selection process did not violate the applicable AOC directive.

Defendant's reliance on State v. Morales, 390 N.J. Super. 470 (App. Div. 2007), is misplaced because we issued that decision before Directive #4-07 was issued. We reject defendant's argument that the "abbreviated" voir dire deprived him of his constitutional right to a fair trial.

Defendant further argues that the judge should have questioned jurors individually regarding sensitive questions. The judge gave jurors the opportunity to discuss each question at sidebar in accordance with Directive #4-07, which states: "Questioning shall be in open court or at sidebar, in the discretion of the court, with input from counsel." This procedure addressed the defense's concern that a question may not be answered truthfully in the open courtroom.

Defendant also argues that the jurors did not understand all the questions. The fifth question of the standard voir dire questions is: "I have already briefly described the case. Do you know anything about this case from any source other than what I've just told you?" Model Jury Selection Questions, supra, Question 5. Initially, the judge worded that question differently and asked: "Is there anything about the case that reminds you of something that you know already other than what I have told you right now?" The judge's variation was not prejudicial. Furthermore, the judge explained the question a second time by asking it in the wording of the standard question. Any confusion that may have occurred initially was promptly corrected by the judge by his using the exact wording of the standard question.

We find no error requiring our intervention in the manner of jury selection.

Defendant argues next that his conviction on the two second-degree counts of engaging in a drug distribution offense within 500 feet of public property, N.J.S.A 2C:35-7.1, should be reversed because the State did not present proof beyond a reasonable doubt that the transaction occurred within that distance from the Glenn Cunningham Library. Defendant argues that the State failed to use any reliable means of measurement, such as a certified map as it did in its proofs regarding the third-degree school zone charges.

N.J.S.A. 2C:35-7.1 states in relevant part:

Any person who violates subsection a. of N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree . . . .

A public building means "any publicly owned or leased library or museum." N.J.S.A 2C:35-7.1(f).

Subsection (e) of the statute provides that a map produced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area within 500 feet of a public building, and adopted by resolution of the appropriate governing body, shall upon proper authentication be admissible and constitute prima facie evidence of the proximity element of the State's proofs. N.J.S.A. 2C:35-7.1(e). That subsection also provides, however, that: "Nothing in this section shall be construed to preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense . . . ." Ibid.

While a map may be the most common way to establish the location of the drug transaction in proximity to a public building, it is not required by the statute. Witness testimony can be sufficient to establish the distance element. See State v. Trotman, 366 N.J. Super. 226, 235-36 (App. Div. 2004). The State bears the burden of proving all the elements of the offense beyond a reasonable doubt, including distance within 500 feet of a public building. Here, the State presented the testimony of a city detective familiar with the area, describing her surveillance location directly across the street from the library. She estimated the distance from her location to the area of the transaction as 150 feet. The jury considered the evidence and found that testimony credible beyond a reasonable doubt.

Defendant cites State v. Haskins, 131 N.J. 643 (1993), as holding that a distance estimation by a police witness is insufficient to prove guilt beyond a reasonable doubt. The State's evidence in Haskins was that the distance from where drugs were found to the school property was 965 feet. Id. at 647. Defendant and his family members later measured the distance at 1,018 feet. Ibid. The issue in Haskins was not estimation but authentication of the State's measurement device. The State had used an uncertified tape measure in a close case. Id. at 645. There is nothing in Haskins to lead us to conclude that testimony by Detective Hulings placing the transaction well within 500 feet of the public library was insufficient to establish the proximity element of the offense.

For the same reason, we reject defendant's argument that the trial court should have granted his post-trial motion under Rule 3:18-2 for a judgment of acquittal on the second-degree counts.

Nor did the trial court err in denying his motion for a new trial under Rule 3:20-1. In reviewing denial of a motion for a new trial, we defer to the trial court's "'feel of the case,' and 'matters of credibility.'" State v. Gaikwad, 349 N.J. Super. 62, 83 (App. Div. 2002) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984); citing Dolson v. Anastasia, 55 N.J. 2, 7 (1969)).

Defendant argues essentially that the evidence against him did not establish he possessed any heroin and the police erred in pinpointing the location of the alleged transaction. The State's case was, of course, based on defendant's constructive possession of the heroin sold to or seized from the co-defendants. Whether defendant was involved in the sales and the accuracy of the police testimony about their surveillance were matters properly presented to the jury for its determination. We see no clear and convincing showing of a manifest denial of justice in the jury's verdict. R. 3:20-1; State v. Perez, 177 N.J. 540, 555 (2003).

Finally, defendant argues that his thirteen-year sentence with six and a half years before parole eligibility was excessive because of the small amount of drugs involved.

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.

The court found three aggravating factors applicable: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Defendant's prior record showed four indictable convictions for drug offenses and a charge of robbery, and several municipal court drug charges. From 1986 through the date of these charges in 2006, defendant was arrested and charged with offenses regularly every few years. In addition, his criminal history included several parole violations. That record amply supported the sentencing court's findings as to aggravating factors. See State v. Breitweiser, 373 N.J. Super. 271, 287-88 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

The court found no mitigating factors applicable under N.J.S.A. 2C:44-1b. Defendant argues that the small amount of heroin involved supported a finding of mitigating factor one, that defendant's conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1b(1). See State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002). Unlike Cullen, where defendant possessed one baggie containing .33 grams of cocaine, in this case, the police seized a total of twenty-two bags of heroin. In addition, street sales of heroin to three customers in both a school zone and near a public library are not offenses that do not cause serious harm. See State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994).

The court stated its reasons for the sentence it imposed, and those reasons were supported by the competent credible evidence in the record. See State v. Bieniek, 200 N.J. 601, 608-09 (2010). The court did not abuse its discretionary authority in imposing sentence.

Affirmed.

20100802

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