November 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NADIR LAWRENCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010
Before Judges Rodríguez, Grall and LeWinn.
Following a jury trial, defendant, Nadir Lawrence, was convicted of two counts of third-degree distribution of a controlled dangerous substances (CDS), heroin, N.J.S.A. 2C:35- 5(a)(1), (b)(3), (counts one and five)*fn1, and two counts of third-degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7, (counts two and six). Defendant was sentenced to an aggregate term of ten years with a five-year parole ineligibility period. He appeals, raising seven claims of trial error and the contention that his sentence is excessive. We affirm.
The pertinent trial evidence may be summarized as follows. In June 2007, "[b]ased on information... received," members of the East Orange Police Department's Violent Crimes Task Force, Narcotics Division, set up surveillance of possible narcotics activity in the area of Brookside Street and South Clinton Avenue. On the night of June 5, 2007, Detective Anthony Ricks observed defendant, who was known to the officer, enter a vehicle parked outside defendant's residence. At the request of Ricks, Detective Gary Blakney approached the vehicle and obtained identification from defendant who was in the passenger seat.
Based on further investigation, Ricks obtained a direct contact phone number, known as a "chirp phone number," which he believed to belong to defendant. Under Ricks' direction, undercover Detective Clothy Ortiz called that number and engaged defendant in a conversation; she called him again on the following day and arranged to meet him to purchase ten envelopes of heroin. That transaction occurred on June 7, 2007.
Ortiz was equipped with a two-way radio, known as a "KEL," which did not record but permitted Ricks to hear her conversation with defendant. Ricks also testified that he used binoculars to observe defendant's transaction with Ortiz, which he described as follows: defendant walked to the passenger side of Ortiz's vehicle, "reached in the vehicle and made a hand transaction with the undercover detective."*fn2
Ortiz testified that defendant "pulled out... ten little envelopes wrapped in a rubberband[,]" which defendant gave to Ortiz in exchange for one hundred dollars in cash. Immediately following that transaction, Ortiz "surrendered the product" to Ricks.
Ortiz engaged in a second undercover narcotics purchase from defendant on June 13, 2007; again, this transaction was arranged by Ortiz calling defendant's chirp phone number. Accompanied by Detective Katie Dunn, who was driving, Ortiz met defendant at a pre-arranged location. She stated that defendant "walked over to [her] side of the car," and she told him she "wanted five. And... he put his hand in the [sic] pants and removed... a group of... gla[ss]ine envelopes. He counted five and then he said, here, I'll toss [in] one extra...." Ortiz gave defendant fifty dollars in cash. Again, she immediately left the area and met with Detective Ricks to whom she gave the six envelopes. Ricks had monitored and observed this transaction as well, through use of the KEL.
Ricks identified schools within 1000 feet of each transaction. He also testified that defendant was not arrested immediately after either transaction because the police investigation was "still... ongoing."
Defendant was ultimately arrested on June 27, 2007. At the time of his arrest he had in his possession a cell phone which the police ascertained was the same phone used to arrange the transactions with Ortiz.
On appeal, defendant raises the following contentions for our consideration:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM ABSENTEE WITNESSES. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.
THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF POSSESSION OF CDS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO RECORD AND DOCUMENT THE OUT-OF-COURT IDENTIFICATION EVIDENCE AND PROCEDURE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL IN RESPONSE TO DISCOVERY VIOLATIONS DISCLOSED AT TRIAL.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE SUGGESTING THAT THE DEFENDANT WAS INVOLVED IN VIOLENCE. (Not Raised Below)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. (Partially Raised Below)
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT'S SENTENCE SHOULD BE VACATED AND REMANDED IN LIGHT OF THE AMENDMENT TO THE SCHOOL ZONE DRUG LAW [(]N.J.S.A. 2:35-7).
B. THE COURT IMPROPERLY IMPOSED MULTIPLE EXTENDED TERMS.
C. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
D. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
Having considered these issues in light of the record and the controlling legal principles, we are satisfied they provide no basis either to reverse defendant's convictions or to modify his sentence.
Defendant's first argument is based upon his claim that the testimony by Ricks raised a "clear and unmistakable inference... that the police... targeted... defendant... based on reports from unknown accusers" whom defendant never had the opportunity to cross-examine. In other words, defendant claims that "[s]omebody provided the police with... information, but the source was never subjected to confrontation."
Defendant did not raise this objection at trial; therefore, it is presented here as plain error, thus requiring defendant to demonstrate that it was "clearly capable of producing an unjust result." R. 2:10-2. We are satisfied that defendant has failed to make such a showing.
Although Ricks did testify as to some specific circumstances leading to the investigation of defendant and the police presence outside of defendant's residence, there was no direct testimony by any of the police officers as to known criminal involvement on defendant's part. Furthermore, although Ricks testified that he had "prior knowledge" of defendant, he expressly denied that such "knowledge" had "anything to do with criminality of any nature."
Considering Ricks' testimony regarding his direct observations of defendant's interactions with Ortiz, as well as Ortiz's testimony about her face-to-face encounters with defendant, the challenged testimony was not "clearly capable of producing an unjust result." R. 2:10-2.
"It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so upon information received." State v. Bankston, 63 N.J. 263, 268 (1973) (internal quotations omitted). Given the strength of the testimony directly implicating defendant in two undercover narcotics transactions, we are satisfied that the jury did not "reach a result that it would not have arrived at in the absence of the disputed testimony." State v. Cotto, 182 N.J. 316, 337 (2005).
Defendant's claim of prosecutorial misconduct is premised upon his assertion that, in summation, the prosecutor "misinformed the jurors by telling them, '[i]dentification in this case is not an issue.'" To the contrary, defendant contends, identification "was the ultimate issue" in the case, and, therefore, this comment intentionally misled the jury.
Defendant, however, has taken this statement out of context. Following the challenged statement, the prosecutor proceeded to summarize the evidence tending to establish that defendant was the individual who sold heroin to Ortiz on two occasions. That evidence included the initial identification of defendant by Blakney; the visual observations of both Ortiz and Ricks; and the cell phone found on defendant's person at the time of his arrest, which proved to be the one Ortiz called to arrange the sales.
"[A] prosecutor is afforded considerable leeway to make forceful arguments in summation.... So long as the prosecutor's comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments 'will afford no ground for reversal.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). Such is the case here.
Although defendant did not request a jury instruction on the lesser-included offense of possession of heroin, he now claims that the trial judge erred in failing to give such an instruction to the jury. "[W]hen... defendant fails to ask for a charge on lesser-included offenses, the court is not obligated to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." State v. Denofa, 187 N.J. 24, 42 (2006). "Only if the record clearly indicates a lesser-included charge... must the court give the required instruction." Ibid. (citations omitted).
Defendant acknowledges that, at trial "the State alleged that... defendant distributed [heroin]." While we concur with defendant that "[d]istribution necessarily entails possession[,]" we are hard-pressed to discern how defendant was prejudiced by this claimed error. The only evidence of defendant possessing heroin was when he sold it to Ortiz. Under these circumstances, we are satisfied that the record did not support a charge on the lesser-included offense of possession.
Defendant's remaining claims of trial error are "without sufficient merit to warrant discussion in a written opinion."
R. 2:11-3(e)(2). Suffice it to say, whatever inconsistencies may have emerged from Ricks' testimony regarding his use of binoculars to observe defendant's conduct, the fact remains that Ortiz presented direct testimony establishing defendant's participation in two narcotics transactions. For that same reason, the State's failure to produce records of the "buy money" Ortiz used to purchase heroin from defendant is harmless error, at best. The testimony by Ricks and Blakney that they were members of the "Violent Crimes Task Force" consisted of fleeting references that do not rise to the level of plain error. "[N]ot 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Considering the evidence adduced in the State's case, the trial judge properly denied defendant's motion for a judgment of acquittal. Such a motion must be denied if the evidence, viewed in the light most favorable to the State, is sufficient to permit a jury to find each element of the crimes charged beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); see State v. Josephs, 174 N.J. 44, 81 (2002) (noting that a reviewing court applies the same standard).
Finally, we turn to defendant's contentions regarding his sentence. First, we reject defendant's claim that he is entitled to re-sentencing under the recent amendment to N.J.S.A. 2C:35-7, which authorizes a judge sentencing a defendant in a school zone drug case to "waive or reduce the minimum term of parole ineligibility required under [N.J.S.A. 2C:35-7(a)]" based upon factors specified in N.J.S.A. 2C:35-7(b)(1).
Defendant is not eligible to invoke this statutory amendment because, having been previously convicted of distribution of CDS, he was subject to a mandatory extended sentence term as well as a mandatory minimum parole ineligibility period pursuant to N.J.S.A. 2C:43-6(f). N.J.S.A. 2C:35-7 provides that nothing therein "shall be construed to establish a basis... for not imposing a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to subsection f. of [N.J.S.A.] 2C:43-6...." In short, the amendment to the statutory sentencing considerations in school zone drug cases does not apply to defendant.
Defendant's contention that the trial judge improperly imposed multiple extended terms is without merit. While N.J.S.A. 2C:44-5(a)(2) does provide that "[n]ot more than one sentence for an extended term shall be imposed," that statutory prohibition does not apply to mandatory extended terms, such as those imposed under N.J.S.A. 2C:43-6(f). See State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999) (holding that N.J.S.A. 2C:44-5(a)(2) "clearly governs the imposition of discretionary extended terms," and "does not apply to mandatory extended terms").
Finally, we are satisfied that the trial judge properly assessed and analyzed the aggravating and mitigating factors in determining sentence, and that those determinations are "'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296-97 (2010) (quoting State v. Dalziel, 182 N.J. 494, 505 (2005)). "[A]n appellate court should not substitute its judgment for that of the lower court[;]... a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). We will not "'second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Where, as here, the trial judge "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we will not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted). Our review of the record satisfies us that the trial judge did not misapprehend or misapply the statutory factors, and the factual findings underlying the judge's conclusions on the pertinent aggravating and mitigating factors are supported by the record. See State v. Roth, 95 N.J. 334, 363-64 (1984).
Defendant's convictions and sentence are affirmed. The matter is remanded for entry of a corrected judgment to reflect that defendant's conviction on count five of the indictment was for third-degree distribution of heroin, N.J.S.A. 2C:35(a)(1), (b)(3).