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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...