September 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN MOORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-09-1549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Gilroy and Ashrafi.
Defendant Hassan Moore appeals from his conviction by a jury and sentence of ten years' imprisonment for possession of heroin and cocaine in a school zone with intent to distribute the drugs. We affirm.
Defendant was indicted on seven counts, all third degree crimes: (count one) possession of cocaine, N.J.S.A. 2C:35-10a(1); (count two) possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); (count three) possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; (count four) possession of heroin, N.J.S.A. 2C:35-10a(1); (count five) possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); (count six) possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and (count seven) resisting arrest, N.J.S.A. 2C:29-2a.
At trial, the prosecution presented the testimony of several police officers to describe the events at the time of defendant's arrest in possession of drugs and a chemist to confirm that the drugs seized were heroin and cocaine.
The evidence established that on the morning of June 11, 2007, Sergeant Christopher Robateau of the Jersey City Police Department was on patrol in an area of the city known for drug activity. He was in uniform and driving a police car. At the corner of Wegman Parkway and Ocean Avenue, he observed a hand-to-hand transaction between defendant and a woman. Defendant handed the woman an object, and she gave him money. Based on the location, his fifteen years of experience as a police officer, and the interaction he observed between the two people, Robateau believed that defendant had made a sale of an illegal drug to the woman.
Robateau contacted other Jersey City police officers for backup to confront defendant. In the meantime, he followed in his police car as defendant walked on the street. Before other officers were available for backup, Robateau lost sight of defendant after he turned onto a one-way street where the officer could not follow.
About half an hour later, Robateau saw defendant again near Stegman Avenue and Martin Luther King Drive, and he notified other officers of the location. Officers Michael Burgess and Carlos Lugo of the Jersey City Police Department saw defendant, stepped out of their vehicle, and walked on opposite sides of the street toward him. Defendant began to run and threw a plastic bag at about the same time that one of the officers announced "police." Officer Lugo tackled defendant, and a brief struggle occurred. Defendant was subdued and handcuffed. The officers retrieved the bag that defendant had thrown to the ground and found it contained sixteen vials of suspected cocaine. In defendant's rear pants pocket, the officers found fifty-nine small baggies of suspected heroin. The officers also recovered $21 in cash in defendant's possession.
Linda Hogar, senior forensic chemist for the Hudson County Prosecutor's Office, testified at trial that she tested the suspected drugs seized at the time of arrest and determined that the sixteen vials each contained.1 gram of cocaine and the fifty-nine baggies each contained.01 gram of heroin. Sergeant Wally Wolfe testified as a narcotics expert that the vials of cocaine and baggies of heroin would have a value of $10 each for sale on the street. He testified that the drugs were packaged for distribution and not for personal use.
During Robateau's testimony, the prosecutor showed him a map of the area marked with 1,000-foot perimeters of schools. Robateau marked on the map the location where he observed defendant engage in the hand-to-hand transaction as within 1,000 feet of Public School 15. On cross-examination, he testified that he was familiar with the area and knew which schools were in operation on June 11, 2007.
Defendant elected not to testify and did not present any witnesses.
The jury found defendant guilty on all the drug charges but not guilty of resisting arrest. At sentencing, the trial judge granted the State's motion for a mandatory extended term within the second-degree range under N.J.S.A. 2C:43-6f because defendant had two prior convictions for selling illegal drugs in a school zone. After merging counts one and two with count three and counts four and five with count six, the judge sentenced defendant to concurrent extended terms of ten years' imprisonment with five years of parole ineligibility on each of counts three and six.
On appeal, defendant makes the following arguments:
POINT I THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF FAIR COMMENT BY IMPROPERLY BOLSTERING THE CREDIBILITY OF THE POLICE WITNESSES -- ASSERTING THAT THEY SHOULD BE BELIEVED BECAUSE THEY HAD "A CENTURY OF POLICE TRAINING" AND THEY WOULD NOT WANT TO "THROW AWAY EVERYTHING THEY'VE DONE." (NOT RAISED BELOW).
POINT II THE JUDGE PROVIDED HIS JUDICIAL IMPRIMATUR TO PROSECUTOR'S VERSION OF THE FACTS IN VOIR DIRE, THEREBY DENYING DEFENDANT A FAIR TRIAL BY AN IMPARTIAL JURY. (NOT RAISED BELOW).
POINT III THE JUDGE'S FAILURE TO FULLY INSTRUCT THE JURY ABOUT THE PROPER, EVIDENTIARY USE OF A 1,000 FOOT, SCHOOL ZONE MAP REQUIRES A REVERSAL. (NOT RAISED BELOW).
POINT IV THE JUDGE'S UTILIZATION OF THE STATUTORY MAXIMUM AS A STARTING POINT IN ANALYZING THE AGGRAVATING/MITIGATING FACTORS WAS IMPROPER AND REQUIRED A REMAND FOR RE-SENTENCING.
All three of defendant's arguments alleging trial errors are subject to the plain error standard of review under Rule 2:10-2 because no objections were raised at trial regarding those issues. To be reversible plain error, the error must be of sufficient magnitude "to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues plain error in the prosecutor's summation, reciting without context the following remark:
Sergeant Robateau, Officer Michael Burgess, Officer Carlos Lugo have almost a century of police training. Are they going to throw away everything they've done for all the years as police officers to set up, as [defense counsel] claims, an innocent man?
Defendant argues that a number of prior decisions have held this type of comment to be improper vouching for the credibility of police witnesses that prejudices a defendant's right to a fair trial. See, e.g., State v. Frost, 158 N.J. 76, 85 (1999); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994); State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993). In those and other similar decisions, our courts have repeatedly held that a prosecutor may not vouch for the credibility of police witnesses, for example, by arguing that they have no motive to lie, that they would jeopardize their careers and positions if they lie, or simply that the jury should accept their testimony because they are police officers. In this case, the comments of the prosecutor were not in the nature of vouching for witnesses based on such generalized and improper reasons.
In context, the prosecutor was responding to and refuting specific arguments and statements by defense counsel in her opening statement and summation implying that the officers had planted illegal drugs on defendant. In her opening statement, defense counsel asserted that defendant did not possess any drugs at the time of his arrest. She said that "the police needed an escape goat [sic]" because they had "failed to do their jobs to rid the community of drugs." She implied that the police falsely accused defendant of possession of the bag of cocaine vials recovered from the street and that they "planted" the heroin they alleged had been recovered from his person.
Not having presented any evidence affirmatively to contest the officers' versions of the events, defense counsel began her short summation by telling the jury that "[t]his case breaks down to a matter of credibility, the credibility of the officers and whether or not you believe what happened is per [sic] their version or you believe something other than that." She then accused the officers of a "witch hunt" and "harassing" defendant. After highlighting alleged gaps in the officers' testimony, defense counsel continued:
There is such a thing as misconduct and police officers they have good and they have bad. And you will just have to think about the evidence as it is. The drugs are what they are. You heard the chemist testify as to what they were and we don't know where they came from.
The officers had it. It could have been there. We don't know where they came from, but it's being pinned on Mr. Moore.
Immediately following these comments, the prosecutor began his closing argument by responding to these accusations. He argued to the jury:
Would your common sense have you believe what [defense counsel] is arguing? Sergeant Robateau, office of over 15 years on a police officer [sic] decides one day to call up Officer Burgess. Says hey, Mike, I see this guy walking down where - Ocean and Wegman. You know what? I've got nothing better to do. Let's set him up. Hey, you've still got the drugs in the cop car from last time when we set up last time? Sure we do. How much have you got? I've got 100 vials. You know what, that's a little too much. Let's only use, I don't know, 16 vials. Have you got some heroin, too? Let's use a little heroin, too. Maybe 59.
And you know what we're going to do, we're going to plant it on this guy and that way we'll have it - we'll testified, we'll have fun, we'll all waste everyone's time today and we'll send a missing person [sic] to jail.
Ladies and gentlemen, use your common sense. Sergeant Robateau, Officer Michael Burgess, Officer Carlos Lugo have almost a century of police training. Are they going to throw away everything they've done for all the years as police officers to set up, as [defense counsel] claims, an innocent man?
These comments were not vouching for the officers' testimony in a general sense of police officers having no motive to lie or facing punishment if their version of the evidence was rejected by the jury. Rather, they were specific responses refuting defense counsel's argument, which asked the jury to surmise without any supporting evidence that the police may have planted illegal drugs on defendant's person.
In State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991), we held that in determining whether a prosecutor's remarks were prejudicial, we take into account defense counsel's remarks. There was no unfair prejudice to the defendant where the prosecutor commented on the police officers' lack of interest in the case in response to defense counsel's remarks that the State's case was a lie. Id. at 377, 379.
Similarly in this case, it was the defense argument rather than the prosecutor's response that departed from the evidence. In such circumstances, the prosecutor does not violate defendant's right to a fair trial by responding to the improbability of the defense argument.
In reviewing allegations of prosecutorial misconduct in statements to the jury, the Supreme Court has held:
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.
Failure to object also deprives the court of the opportunity to take curative action. [State v. Timmendequas, 161 N.J. 515, 576 (1999) (internal citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).]
We conclude there was no error, much less plain error, in the prosecutor's summation comments.
Defendant argues next that the trial judge tainted the jury's impartial consideration of the evidence during jury selection by describing the State's case as based on "what appeared to be a drug transaction" rather than "alleged transaction" or "alleged interaction", or simply "a transaction." Defendant acknowledges that the plain error standard of review applies to this contention because defense counsel at trial made no objection and did not otherwise request an alternative explanation of the case to the jury. Again, absence of contemporaneous objection at trial may lead to a fair inference that "in the context of the trial the error was actually of no moment." State v. Nelson, 173 N.J. 417, 471 (2002) (quoting Macon, supra, 57 N.J. at 333).
During the voir dire, the judge stated:
The allegations in this case are that the defendant was seen in what alleged -- what appeared to be a drug transaction on June 11th, 2007 in the areas of Wegman Parkway and Ocean Avenue at about 10:50 to 11 o'clock a.m. in the morning.
"A trial court exercises its discretion when it voir dires a jury, and the exercise of that discretion is subject to reversal only if defendant meets the burden of showing prejudice." State v. Mance, 300 N.J. Super. 37, 54 (App. Div. 1997).
There was neither plain error nor abuse of discretion in the trial court's description of the case to the jury panel. The trial court must give the jury a statement of the allegations to determine whether "there [is] anything about the nature of the charge itself that would interfere with [a potential juror's] impartiality." See Directive #4-07, Model Jury Selection Questions, Standard Voir Dire (Criminal). The trial court told the jury about the State's "allegations," using that word specifically. Moreover, the trial court instructed the jury that they were the finders of fact, that the State carried the burden of proof, and that defendant was presumed innocent. These instructions were given both at the beginning and at the end of the trial.
We find no prejudicial error in the judge's description of the State's allegations during jury voir dire.
Next, defendant contends that the final charge to the jury contained prejudicial error in failing to instruct the jury that a school building must be used for school purposes to satisfy all the elements of a school zone offense. Defendant argues further that, during defense counsel's cross-examination of Sergeant Robateau, the trial court erroneously instructed the jury that whether a school is open or closed is irrelevant.
Because defendant did not request additional instruction on the school zone issue, and also did not object to the court's instruction during Robateau's cross-examination, the plain error standard of review applies, and we must determine whether the alleged errors were "clearly capable of producing an unjust result." R. 2:10-2; see State v. Torres, 183 N.J. 554, 564 (2005). Where a defendant alleges an erroneous jury instruction, however, the "qualitative assessment under the plain error rule is different... since the clear capacity to produce an unjust result is more likely in the case of an erroneous or insufficient instruction to the jury." State v. Pierce, 330 N.J. Super. 479, 488 (App. Div. 2000); see also State v. Jordan, 147 N.J. 409, 422 (1997) ("Erroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions.").
In charging the jury on the school zone counts, the trial court first repeated the elements of possession of an illegal substance with intent to distribute. Then, in accordance with the model jury charge under N.J.S.A. 2C:35-7, the court instructed the jury:
In addition to proving possession with intent to distribute the State must also prove beyond a reasonable doubt the act occurred on or within 1,000 feet of school property.
The term school property means any property which is used for school purposes and is owned by or leased to an elementary school, secondary school, or school board. The 1,000 foot zone extends from the outermost boundary of the school property and not from the school building itself. It does not matter whether the school is public, private, or parochial. It is also no defense to this charge that no juveniles were present on the school property at the time of the offense or that the school was not in session.
The possibility that defendant may have been unaware that the prohibited conduct took place on or within 1,000 feet of the school property is not a defense to the crime and shall not be considered by you in your deliberations.
See New Jersey Model Jury Charge (Criminal), "Possession With Intent to Distribute Controlled Dangerous Substances Near or On School Property Used for School Purposes" (2008). Defendant argues that the court erred in failing to give the following additional instruction:
In addition to determining whether property is school property, you must determine the purpose for which it is used.
You must decide whether the property is regularly, consistently, and actually used for school purposes, and whether the property's appearance would give an objectively reasonable person reason to know that it was used regularly, consistently, and actually for school purposes.
Such a charge is only required where a question has been raised at trial about whether the school property was actually being used for school purposes. See State v. Ivory, 124 N.J. 582, 591-92 (1991). The charge must be given "[w]hen that element of the offense is in dispute." State v. White, 360 N.J. Super. 406, 412 (App. Div. 2003). In White, we held that the trial court's failure to charge the jury that the school must be used for school purposes was error where the property in question "did not bear the legend of a school and many community activities were conducted at the center." Ibid. In this case, defendant did not contest whether the property described as Public School 15 was being used for school purposes.
Defendant argues he did raise that issue in cross-examination of Sergeant Robateau. Defense counsel asked whether Robateau was updated on school closings. Robateau answered that he was familiar with the area and knew which schools were open. The trial judge then stepped in to correct a potential misconception, since the offense occurred on June 11, 2007, that the school must be in session for a violation of the statute. The court told the jury:
Okay, I just want to instruct the jury, whether or not a school is open or closed is irrelevant. Whether or not a school is functioning as a school purpose that's the only thing that's important in this case. And a school during the summertime may be "closed," school functions even though it's in recess and therefore the 1,000-foot would still be in existence.
The only time if a school permanently closes, that means it's no longer used as a school then it would not become a 1,000-foot zone anymore. Okay? But I', -- go ahead, continue.
Defense counsel continued her cross-examination of Robateau as follows:
Q: Yes. Just for clarification when I say closing I mean closed in terms of not in operation -
Q: I don't mean closed for the weekend or closed for the season.
A: Yes. Yes, ma'am.
Defense counsel then moved on to a different topic.
Defendant claims now that the defense sought to pursue a line of questioning as to whether the school was used for school purposes on the date of the offense but "was sidetracked by [the] instruction from the judge." However, defendant did ask Robateau whether he was updated on school closings, and Robateau testified that he in fact was. In the questions following the judge's instruction, Robateau indicated that he understood the reference to closing to mean whether the building was in operation as a school.
Unlike in White, supra, 360 N.J. Super. at 412, where the defendant presented evidence that a reasonable person might not know that the subject property was used for school purposes, defendant in this case relied on no such evidence. Furthermore, in Ivory, supra, 124 N.J. at 591, the Court noted that "[i]n most cases, like that of a school itself, or playgrounds immediately adjacent to the school, use 'for school purposes' will be self-evident." Here, Robateau testified that he was familiar with the neighborhood and Public School 15. There was no issue in the case about whether the building was being used for school purposes.
We conclude the trial court did not err in charging the jury on the school zone counts.
Finally, defendant argues that his sentence of ten years' imprisonment with five years of parole ineligibility should be vacated because the trial judge presumed that he should receive the maximum available sentence and did not consider the entire sentencing range of five to ten years. We reject defendant's argument.
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). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Id. at 365.
An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.
[State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]
Defendant does not contend that the trial court erred in sentencing him to a mandatory extended term under N.J.S.A. 2C:43-6f. Defendant had two prior convictions for possession of illegal substances with intent to distribute in a school zone. Consequently, the statute required an extended term sentence of between five and ten years with a minimum term, that is, a period of parole ineligibility, set at between one third and one half of the sentence, or at least three years.
In addition to the two school zone convictions, defendant had three other indictable convictions on his record and had spent the majority of his adult life in prison. The trial court found three aggravating factors applicable to the sentence: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior 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). The court found no mitigating factors applicable. We find no error in these findings.
The trial court stated:
I'm looking at the record and I mean it's an extensive record. Two prior 1,000-foot, five total convictions and I do find aggravating Factors 3, 6, and 9. Unfortunately, I can't find any mitigating factors because apparently the type of life you've led has been basically making money through the drug possession and trafficking.
I cannot find any reason to lower sentence than the maximum allowed by this conviction. (Emphasis added.)
Defendant seizes upon the last-quoted sentence and argues that the court erred as a matter of law by beginning with a presumption that the maximum sentence should be imposed. We do not read the record as indicating such an error.
The record demonstrates that the trial judge followed appropriate sentencing procedure, and it suggests that he considered the full sentencing range. In fact, the underscored sentence above does not make good grammatical sense as written, suggesting a possible transcription error.*fn1 In making the remark, the trial judge appears to have been commenting that his weighing of aggravating factors against non-existent mitigating factors led him to conclude that a sentence at the top of the available range was warranted. We find no abuse of discretion in reaching that conclusion based on the defendant's criminal record and the circumstances presented.