September 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINSON WINGATE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1321.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant, Vinson Wingate, was convicted by a jury of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1), third-degree distribution and/or possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5b(3), third-degree possession of cocaine with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7, second-degree possession of cocaine with the intent to distribute it within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a. After merger of the third-degree drug convictions into the second-degree drug conviction, defendant was sentenced to ten years in custody, subject to a five-year period of parole ineligibility. He was additionally given a concurrent eighteen-month sentence on the conviction for resisting arrest. Defendant has appealed his conviction and his sentence.
In a counseled brief, defendant has made the following arguments:
THE COURT ERRED IN PERMITTING THE STATE TO POSE A HYPOTHETICAL QUESTION TO THEIR DRUG EXPERT WHICH CALLED FOR A CONCLUSION ON THE ULTIMATE ISSUE IN THE CASE.
THE SENTENCE IMPOSED, 10 YEARS WITH A FIVE YEAR PAROLE BAR, WAS MANIFESTLY EXCESSIVE.
Defendant has additionally filed a pro se brief in which he argues that variances between the police report and the trial testimony of Sergeant Jeffrey Frett require reversal of the verdict against defendant. He additionally argues that the sentence is manifestly excessive when considered in the light of defendant's actual prior convictions.
Testimony in this matter establishes that, on the morning of March 12, 2008, members of the Camden Police Department were conducting an undercover surveillance in the area of Tenth Street and Carl Miller Boulevard near the Branch Village public housing complex and Cream School. At 10:50 a.m., Police Officer Miguel Rodriguez observed a person, later identified as defendant, exchanging what he described in his police report as an "unknown item," which he removed from his left front coat pocket, for currency proffered by a heavy-set Caucasian woman. A few minutes later, another female approached defendant, and another exchange of currency for an item occurred.
At this point, Rodriguez requested that an assisting unit move in and detain defendant. Within one minute, a marked Camden police car, driven by Sergeant Jeffrey Frett and occupied by his brother, Sergeant William Frett, came to the scene and stopped within ten feet of defendant, who was standing with another black male. The two were ordered to approach the police vehicle. However, defendant instead fled on foot, pursued by William Frett. Jeffrey Frett drove along side of defendant as he ran. During his flight, defendant was observed by Jeffrey Frett to toss an object into what was termed an empty trash can in the police report, but was described as a dumpster by Frett in his trial testimony. Soon thereafter, Jeffrey Frett blocked defendant's progress with his police car, and defendant was taken down and handcuffed. After a clear plastic bag containing twenty-one smaller green, heat-sealed bags of crack cocaine was retrieved from the dumpster by Jeffrey Frett, defendant was arrested. The sum of $140 was recovered from defendant in a search incident to arrest. However, Maritza Alston, a witness for defendant, established that, on March 1, 2008, a tax refund check in the amount of $139.53 had been issued to defendant by her employer, Jackson Hewitt, and that defendant had cashed the check on March 4 or 5, 2008.
Defendant, who testified on his own behalf, stated that on the morning in question, he had overslept. When sighted by the police, he was waiting for a bus to take him to the anger management and out-patient drug treatment program that he attended daily as a condition of his parole. He testified that the man standing next to him was an acquaintance who had just returned to the corner after purchasing loose cigarettes at defendant's request. Defendant denied any drug-dealing. He stated that he fled from the police because he was on parole and because he knew that a warrant for his arrest for nonpayment of a misdemeanor fine was outstanding.
Defendant first argues that the expert testimony offered by Terry King, an investigator for the Camden County Prosecutor's Office, exceeded permissible bounds and intruded on the jury's fact-finding role because he expressed an impermissible opinion on guilt.
The record reflects that, after being qualified as an expert, King testified regarding packaging of cocaine for street-level distribution, stating that quantities of one-tenth to one quarter of a gram are generally packaged in small heat-sealed or zip-locked bags that are often colorful, so as to appeal to a youthful audience. A bag sells for a price between five and twenty dollars. King testified that the cocaine itself is off-white in color, and it resembles broken sheet rock. King then described a hand-to-hand transaction, testifying that it was a quick exchange of money for drugs through gestures that resembled a handshake, some times accompanied by a brief conversation.
King was next asked a hypothetical question, to which he responded. The exchange between counsel and King follows:
Q: Investigator King, hypothetically speaking, if we have an individual by the name of Mike and Mike is in a high crime area in the City of Camden, and hypothetically if Person A hands Mike paper currency and Mike hands Person A a small item, based on your training and experience, what could you say - what would you say has just occurred?
A: I would say that you described the typical street-level drug transaction. Mike being the person that would be the seller in that regard, and the Person A would be that person's activities that are which [sic] consistent with a buyer purchase.
Q: Going with that same hypothetical, let's say that within a few minutes, Person B approaches Mike and Person B hands Mike paper currency, and Mike hands Person B a small item. In your training and experience, what has just occurred?
A: Again, the activities are very consistent, very similar. I would say that that would be, again, another street-level hand-to-hand drug transaction.
Defendant acknowledges that, in State v. Odom, 116 N.J. 65 (1989), the Court permitted an expert to respond to a hypothetical question as to whether drugs were possessed for personal use or distribution, when the question mirrored the facts of the matter before the jury, so long as the expert did not express an opinion that defendant was guilty of the crime charged. Id. at 81. See also State v. Summers, 176 N.J. 306, 314-16 (2003). However, he argues that King's response to a hypothetical that embraces an ultimate issue in the case must be circumscribed in a case such as this involving an observed drug transaction, because a N.J.R.E. 403 analysis compels the conclusion that the probative value of the testimony is outweighed by the risk of undue prejudice. Further, defendant contends, expert testimony was not required to explain to the jury the significance of the straightforward transaction observed by Officer Rodriguez, and it constituted prejudicial bolstering of the State's evidence.
In support of his position, defendant relies on State v. Nesbitt, 185 N.J. 504 (2006). In that case, the Court found that the expert's testimony regarding a drug transaction involving the participation of two individuals in a drug sale to an undercover buyer was helpful to the jury and did not constitute plain error. But in doing so, the Court observed:
This case is distinguishable from State v. Boston, 380 N.J. Super. 487 (App. Div. 2005)[, certif. denied, 186 N.J. 243 (2006)]; State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999); and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). In each of those cases plain error occurred in the admission of an expert's testimony because no expert was needed to explain the straightforward manner in which the transactions at issue took place. Stated simply, each defendant was observed directly handing something to the alleged purchaser and receiving what appeared to be payment in return. Because there was no need for an expert to explain any unusual aspect of those transactions, plain error was found to have occurred by virtue of the admission of expert testimony on an ultimate issue that was for the jury. [Id. at 516.]
Defendant urges that, in the similar factual circumstances presented here, we should likewise find error in the admission of King's testimony characterizing the hand-to-hand transfers as drug sales. We do not agree. In this matter, Officer Rodriguez could not testify with certainty that the objects transferred by defendant to the females were drugs and, because the alleged drug purchasers were not apprehended, it was not possible for the State to prove through evidence found on them that the exchange had, in fact, involved drugs. Further, at the time of defendant's arrest, he was not found in possession of any drugs, having allegedly disposed of them in the dumpster or trash can. Thus, to prove beyond a reasonable doubt that defendant had distributed drugs, the State needed to establish both that Officer Rodriguez had observed conduct that was characteristic of a hand-to-hand transfer and that, at the time of the transfer, defendant had in his possession a sufficient quantity of appropriately packaged drugs to suggest that he was, in fact, a distributor and that the observed transactions had constituted exchanges of money for drugs.
Our examination of the record demonstrates that the State introduced those proofs through King, utilizing both the hypothetical and testimony based directly on King's drug-related experience. In an exchange that immediately followed King's conclusion, in response to the State's hypothetical question, that activity mirroring that which occurred in this case was characteristic of a hand-to-hand transfer of drugs for cash, counsel for the State showed King S-2, the item that the police had recovered from the trash can or dumpster. The following testimony was then elicited:
Q: If I tell you that in fact S-2 is crack cocaine,*fn1 can you form an opinion as to whether this cocaine is packaged in a way that is consistent with street-level distribution?
A: Yes. Again, as I described earlier, the bags, the smaller zip-lock bags, again, they could often times be seen in small heat-sealed bags as well. Rock-like substance contained inside, again, colorful bags again to appeal to a younger audience and for also identification purposes for that particular drug set or drug location. In other words if there's green bags being sold at 3rd and Main Street, if a buyer comes up, he or she will know the purchase-named bags....
[I]n addition to that, it's for identification purposes to basically denote the potency, if you will, of that particular drug location that drug set.
The State then established through King that buyers usually purchase two to four twenty-dollar bags for their own use. He stated: "It's very rare that you have buyers coming to purchase in excess of four bags at a time. It's certainly possible, but highly unlikely."
Defendant is correct in his contention that experts cannot be utilized to bolster the State's proofs by reaching a conclusion that requires no expertise in response to a hypothetical question. However, viewing King's testimony in its entirety in light of the evidence presented, we conclude that is not what happened in this particular case. Because there was no direct evidence that what defendant had transferred to the females was drugs, the introduction of expert testimony that the transaction resembled a hand-to-hand purchase of drugs, together with testimony that the quantity and packing of the drugs recovered by the police suggested that they were for distribution, was of some measurable assistance to the jury in its fact-finding process. Accordingly, we find no error in the admission of the testimony at issue.
We reject defendant's pro se argument that inconsistencies between Sergeant Jeffrey Frett's trial testimony and the police report written by Officer Rodriguez so undermined Frett's credibility as to have deprived him of a fair trial. In this regard, defendant notes that the police report stated that Frett "observed the male toss an unknown object into a trash can." It then stated that: "Recovered from the empty trash can where he threw an unknown object [was] a clear plastic sandwich bag containing several green translucent small ziploc bags containing a white rock like substance." In contrast, at trial, Frett testified that he saw defendant throw "a clear object" into a "dumpster." Frett further testified that, upon returning to the dumpster after defendant's arrest he "saw a clear plastic sandwich bag which was consistent in shape, size, and color of the object [he had] seen him discard laying in the dumpster with - and it was dry, no debris on it or around it which led [him] to believe that that was in fact the object that he discarded."
Following Jeffrey Frett's direct testimony, defense counsel cross-examined him both on Frett's contributions to the police report written by Rodriguez and the inconsistencies between that report and Jeffrey Frett's trial testimony. Thus, defendant's Sixth Amendment right to confrontation was amply protected through in-court direct testimony by Frett, the veracity of which was "tested by the rigors of cross-examination. State ex rel. J.A., 195 N.J. 324, 342 (2008). Defendant is entitled to no more.
Defendant argues, through counsel and in his pro se brief, that his sentence of ten years with a five-year parole disqualifier was excessive. At the sentencing hearing in this matter, the trial judge found aggravating factors three, the risk of another offense, and six, the extent of defendant's prior record, were applicable as the result of defendant's record of five prior convictions, consisting of two convictions for shoplifting, a conviction for a weapons offense, and two prior convictions for drug offenses. N.J.S.A. 2C:44-1a(3) and (6). The judge also found a need for deterrence. N.J.S.A. 2C:44-1a(9). Finding no mitigating factors, the judge imposed the ten-year sentence with the five-year parole disqualifier to which defendant objects.
In his pro se brief, defendant claims that his record as set forth on the Presentence Investigation Report was incorrect. He states that his drug conviction on July 21, 2006 pursuant to I-178-01-06 was vacated on June 19, 2010 as a "corrupted cop case." Additionally, he notes that the Presentence Report states that he was arrested on March 9, 2003 for robbery and a weapons offense, and that the charges were merged with I-3691-10-03. However, there is no mention of that indictment in the report. Further, defendant claims that he could not have committed a robbery on March 9, 2003 and a drug offense three days later on March 12, 2003, because he never, once confined, made bail, and he could not have committed the drug offense from the jail.
In response, the State agrees that defendant's conviction under I-178-01-06 was vacated, and the indictment was dismissed. With respect to the remainder, the State contends:
[D]efendant's referral to offenses charged on March 9, 2003 from the pre-sentence report is not without explanation. On that date, defendant was charged pre-indictment under Complaint W-2003-001880-0408 and W-2003-001881-0408 which then merged with Indictment Number 3692-10-03, not Indictment Number 3691-10-03 as mistakenly indicated on the pre-sentence report. (PSR). Defendant was then sentenced under Indictment Number 3692-10-03 on March 4, 2004 to three (3) years New Jersey State Prison after pleading guilty to possession of a weapon for an unlawful purpose concurrent to three (3) years New Jersey State Prison after also pleading guilty to possession of a controlled dangerous substance (cocaine) under Indictment Number 1603-05-03.
The State does not address whether the date of the drug charge was also the date of the offense or otherwise address defendant's argument with respect to the timing of the offenses.
Because defendant was sentenced at the top of the second-degree range,*fn2 in large measure as the result of the judge's consideration of his prior criminal record, and because the extent of that record has now been reduced, we vacate defendant's sentence and remand for resentencing. At that time, defendant may address any additional issues that arise from the report of his criminal history.
Defendant's conviction is affirmed; the matter is remanded for resentencing.