November 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE NESMITH, A/K/A KELVIN AUSTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 06-06-1110, 05-05-0737 and 04-10-1761.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2010
Before Judges Reisner and Alvarez.
Tried to a jury, defendant Tyrone Nesmith was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count three); and third-degree driver license simulation, N.J.S.A. 2C:21-2.1(c) (count four).
Defendant was sentenced on October 11, 2007, on the possession with intent to distribute within 1000 feet of school property to a mandatory extended term based on his status as a second-time drug distributor. N.J.S.A. 2C:43-6(f). Accordingly, after the trial judge considered the N.J.S.A. 2C:44-1 statutory factors, he sentenced defendant on count three to a ten-year term of imprisonment, subject to a five-year parole disqualifier. Counts one and two were merged into count three, the distribution offense. Defendant was also sentenced to five concurrent years of incarceration on the third-degree driver license simulation, count four.*fn1 Appropriate fines and penalties were imposed.
The convictions triggered violations of the probation terms defendant was serving on two other indictments: no. 04-10-1761, a third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), and third-degree driver license simulation, N.J.S.A. 2C:21-2.1(c); and no. 05-05-0737, third-degree conspiracy, N.J.S.A. 2C:5-2. The trial judge imposed three years of imprisonment on each violation of probation, to be served concurrently to each other, but consecutively to the sentences on indictment no. 06-06-1110.*fn2
Defendant appeals from his conviction and the resulting sentence. We affirm the conviction and the sentence, but remand for the limited purpose of correcting the judgment of conviction consistent with footnotes one and two of this opinion.
The events leading to defendant's arrest began with his operation of a motor vehicle at approximately 4:00 p.m. on April 6, 2006, in Jersey City. Jersey City Police Sergeant Elias Voutsas testified at trial that he observed defendant driving his car at a high rate of speed, "well above the speed limit." Voutsas pursued defendant, who did not stop for approximately seven blocks, finally pulling over within 1000 feet of two schools, one public and one parochial. As Voutsas approached defendant's vehicle, he noted that one of the tail lights was smashed and that there were two other occupants in the car.
Voutsas asked defendant for his driver's license, the vehicle's registration, and his insurance card. While he was waiting, the officer scanned the interior and the passengers for his own safety. Defendant eventually produced a driver's license with the name "Kelvin Austin," but was unable to produce any registration or insurance information. Meanwhile, Voutsas saw a bag containing vials of a white powder, suspected cocaine, beneath defendant's left foot in the "foot well" on the driver's side. When the vials were subsequently tested, twenty-four were found to contain .27 grams of cocaine, and six were found to contain .21 grams of the drug.
Voutsas asked defendant to exit the vehicle and arrested him after back-up officers had arrived at the scene. Voutsas testified that he retrieved the bag from the floor of the car while another officer searched defendant. The passengers, also asked to exit, were frisked, but released.
At trial, Sergeant Wally Wolfe testified as the State's expert witness. He opined that the packaging and quantity of CDS, in addition to the absence of drug paraphernalia in the vehicle, suggested that the materials were intended for distribution and not for personal use.
Defendant's points on appeal are as follows:
POINT I IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
POINT II DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT POINT III DEFENDANT'S SENTENCE WAS EXCESSIVE
Defendant's first contention of error is that his motion for judgment of acquittal pursuant to Rule 3:18-1 should have been granted by the trial court. A criminal defendant's application for judgment of acquittal should be granted where "the evidence is insufficient to warrant a conviction." R. 3:18-1. As stated in the seminal case of State v. Reyes, 50 N.J. 454, 458-59 (1967), in deciding such applications, "the trial judge must . . . view the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, [determine whether] a reasonable jury could find guilt . . . beyond a reasonable doubt."
We apply the same standard on review. Reyes, supra, 50 N.J. at 458-59. We determine whether, in light of the State's evidence and all favorable inferences that can be drawn therefrom, a reasonable jury could convict. Ibid.
As both parties agree, the determinative question is whether defendant was in possession of the bag containing cocaine. Possession of an item can be either actual or constructive. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Brown, 80 N.J. 587, 597 (1979). Actual possession means an actor has "physical or manual control" of the item in question. Ibid.
We conclude that Voutsas's testimony regarding the simulated driver's license, and his observation of the bag on the floor beneath defendant's foot at the time of the motor vehicle stop, established the statutory elements necessary to prove each offense. Defendant was clearly in control of both the simulated license and the drugs. His effort at covering up the bag during the stop is circumstantial evidence of guilty knowledge of the bag's contents. Wolfe's testimony regarding the packaging and quantity of the drugs, and the absence of drug paraphernalia, was essentially unrebutted. Given the totality of the State's direct and circumstantial evidence, a reasonable jury could readily convict defendant of all the offenses charged in the indictment. Defendant was therefore not entitled to a judgment of acquittal at the close of the State's case. The court did not err by denying the motion to acquit.
Defendant's second contention is that the State's failure to test the bag for fingerprints was a violation of his due process rights. We do not agree.
Defendant urges that the failure to test was the equivalent of the State withholding knowledge beneficial to him within its possession, a violation of the well-established principle found in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). It is well-settled that in criminal matters the prosecution owes a duty to "disclose to the defendant all evidence that is material either to guilt or to punishment." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed. 2d 788 (1999) (citing Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed. 2d at 218). This important duty is limited in scope, however. United States v. Bagley, 473 U.S. 667, 675 n.7, 105 S.Ct. 3375, 3380, n.7, 87 L.Ed. 2d 481, 489, n.7 (1985). The defense must demonstrate three elements in order to make out a successful Brady claim, in other words, in order to establish a duty to disclose: 1) the evidence must be favorable to the accused, 2) the evidence must be suppressed by the prosecution, and 3) the evidence must be material. Nelson, supra, 155 N.J. at 497 (citing Moore v. Illinois, 408 U.S. 786, 794--95, 92 S.Ct. 2562, 2568, 33 L.Ed. 2d 706, 713 (1972)).
Brady does not "impose upon the police a duty to investigate 'vigorously' every criminal case." State v. Johnson, 203 N.J. Super. 127, 131 (App. Div.), certif. denied, 102 N.J. 312 (1985). The Brady rule is applicable only where the prosecution actually withholds information in its possession favorable to the defendant. Id. at 132.
Defendant does not assert that the police tested the drugs for fingerprints and are withholding testing results; rather, he contends that the failure to conduct such testing means the police are in possession of evidence favorable to his defense. To the contrary, the State is under no obligation to test. See Johnson, supra, 203 N.J. Super. at 132.
In any event, defendant has not met the three-part Brady test. It is not known if the evidence would have been favorable to defendant. It is known that the State is not obliged to test and accordingly cannot be said to be suppressing information favorable to defendant.
Furthermore, in this instance where defendant's foot was on top of the bag, and the bag was located on the driver's side floor, it is questionable whether fingerprint evidence would have been material. Even if the bag had been tested, and fingerprints belonging to other individuals found, at the time of the arrest and the seizure of the drugs, defendant was clearly exercising control over the bag. See Johnson, supra, 203 N.J. Super. at 133. The presence of fingerprints on the bag belonging to others under the scenario in this case would have been immaterial to defendant's guilty possession at the time of the stop. Accordingly, there was no violation of defendant's due process rights resulting from the State's failure to test.
Defendant's final contention is that the sentence imposed was excessive. Initially, we note that defendant's prior criminal history included a 1998 conviction for possession with intent to distribute in a school zone, thereby making him a second-time drug distributor subject to the mandatory extended term sentence required by N.J.S.A. 2C:43-6(f). Because defendant had twenty-seven prior arrests and this was his seventh indictable conviction, not to mention the fact that this crime was committed while defendant was serving two separate probations, the court reasonably determined there was sufficient credible evidence upon which aggravating factors three, six, and nine could be found.
We review sentencing decisions not to substitute our judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). When a trial court's findings of aggravating and mitigating factors are supported by the record, where the sentencing overall complies with the criminal code, and if the individual's sentence does not shock our conscience, a sentence will be upheld. Ibid.
Defendant urges that since none of his prior convictions were crimes of violence, the judge should have accorded lesser weight to the aggravating factors, particularly factor six. This argument has no support in sentencing law. Defendant's extensive prior criminal history and the fact he committed these offenses while on two separate probations amply justify the weight the judge accorded aggravating factors three, six, and nine. Therefore, substantial credible evidence in the record justifies not only the court's finding of those factors, but the judge's determination that they carried substantial weight. As the judge said, defendant "has basically been constantly involved with the criminal justice system in one aspect or another[,] whether it be municipal court arrest[s] or Superior Court indictable arrest[s]" since 1995. The weight accorded to the three aggravating factors and the absence of mitigating factors warranted the maximum ten-year sentence subject to five years of parole ineligibility.
In his brief, defendant also contends that the "harshness" of his sentence was compounded by the imposition of aggregate three-year consecutive terms for the violations of probation. Again, we disagree. The judge sentenced defendant to the lowest possible term for the two third-degree offenses. Furthermore, the offenses were obviously separate and distinct crimes for which a consecutive sentence is presumed, "subject to the exercise of judicial discretion." See State v. Sutton, 132 N.J. 471, 484 (1993). The imposition of consecutive terms for the commission of new offenses while on probation for this defendant, given his extensive criminal history, appears a reasonable exercise of discretion. Thus the sentence imposed on defendant accords with the principles set forth in the Criminal Code, the aggravating factors were based upon competent credible evidence in the record, and the overall sentence does not shock our conscience.
Affirmed in part, remanded in part.