February 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM HOHNEY, A/K/A WILLIAM PEREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-0394.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Wefing, Payne and Baxter.
Tried to a jury, defendant William Hohney appeals from his November 14, 2008 conviction on charges 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 2C:35-5(b)(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count four); and second-degree distribution of CDS within 500 feet of a prohibited location, N.J.S.A. 2C:35-7.1 (count five). After merging counts one, two and three with count five, the judge sentenced defendant on count five to an eight-year term of imprisonment, subject to a three-year parole ineligibility term. On count four, the judge imposed a sixteen-year sentence, with an eight-year period of parole ineligibility, concurrent to the sentence on count five.
On appeal, defendant raises the following claims:
I. THE JURY INSTRUCTION PROVIDED AFTER THE FOREPERSON INDICATED THE JURY WAS DEADLOCKED WAS INADEQUATE, MISLEADING AND RESULTED IN A MISCARRIAGE OF JUSTICE (Partially Raised Below).
II. THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY (Not Raised Below).
III. DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
IV. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We reject each of these contentions and affirm defendant's conviction and sentence.
On November 19, 2007, New Jersey State Trooper Carlos Rodriguez was on routine patrol in North Camden with Troopers Austin and Rawles.*fn1 At approximately 8:11 p.m., they observed two individuals, defendant and a juvenile, standing on the corner of 7th Street and York Avenue in front of a store. Rodriguez parked the unmarked van approximately 75 to 100 feet away so they could observe the individuals. Rodriguez testified that he had an unobstructed view, and although it was dark, he was able to see the two with the light coming from the storefront and streetlights.
A short while later, the troopers observed a silver Toyota arrive and a white female exit the vehicle and approach defendant. After a brief conversation, the woman handed defendant money, while the juvenile, who was standing nearby, was observed "looking around the area as if he was looking for somebody or something." Defendant called to the juvenile, who then handed an item to the woman. After examining the item, she quickly returned to her vehicle. As the troopers approached the intersection, she quickly drove away and was never apprehended.
Rodriguez testified that he and the other two troopers exited their vehicle and identified themselves as "State Police," at which time the juvenile entered the store and threw a small plastic bag toward the food aisles. Rodriguez retrieved the bag, and found it to contain crack cocaine and heroin. Defendant and the juvenile were both arrested. Defendant was found with $70 in currency on his person. Rodriguez testified that the intersection of 7th and York was within 1000 feet of a school and 500 feet of a public park. On cross-examination, Rodriguez testified that defendant was wearing a "black hat."
The State also called as a witness Randall C. MacNair, an investigator in the narcotics unit of the Camden County Prosecutor's Office, who was qualified as an expert witness in the field of street-level drug operations. MacNair testified that there is not a specific procedure to which all drug "set[s]" adhere, and the details of the operation will vary based upon the location. He explained to the jury that if two drug dealers are working together, one person, the "moneyman," would act as a lookout and collect the money, while the other person would give the CDS to the buyer. MacNair explained that such a scheme, where one person holds the money and the other person holds the drugs, benefits drug dealers because it enables the two to run in different directions when approached by police. Moreover, if the police arrest only one person, that person is either in possession of the money or the drugs, not both.
MacNair was then presented with a hypothetical:
. . . [I]f you were at the intersection of Seventh and York around 8:00 o'clock in the evening and you noticed two individuals standing on a street corner, we'll designate Person A and Person B, and you saw Person C drive into the area, park and engage in a brief conversation with Person A; Person B meanwhile is looking around up and down the street; after the conversation between Person A and Person C, Person C removes paper currency, gives that to Person A, Person A then waves over Person B, says something, walks away from the area; at that point Person B then removes items from his pocket and gives that to Person C who has driven up and parked; that Person C leaves the area, and ultimately when the police approach Person A, Person B starts to move away, Person B runs into the local store and those objects that are later retrieved. . . . [W]ould you have an opinion as to that hypothetical?
MacNair replied that based upon his familiarity with the area, as well as his training and experience, such a scenario was a street-level drug sale with one person acting as the "moneyman," and the other as the "street-level dealer." The State rested without calling any further witnesses.
Defendant called three witnesses. First was his sister Rosanna Maldonado, who testified that on the night in question, she drove defendant and her son to a friend's house on York Street. When she returned from shopping, she was told by the friend that defendant had been arrested. She also explained that before leaving defendant, she had given him sixty dollars to purchase some phone cards, cigarettes and food.
The second defense witness was Dominic Staiano, a corrections officer at the Camden County Jail, who testified that defendant did not arrive at the jail with a hat.
Defendant's final witness was S.W., the juvenile who was arrested with defendant on November 19, 2007. S.W. testified that on the night in question, he had possession of the drugs, ran into the store and threw the drugs behind some cereal boxes. He maintained he was neither working for defendant, nor "selling or hustling" at that time. S.W. asserted that he did not see a white woman in a silver Toyota, nor did he sell drugs to a white woman. He also denied seeing defendant selling drugs, and explained that defendant was simply "going inside the store. He was walking by" at the time the State Troopers jumped out of their van and arrested him.
After both sides presented their summations, the judge charged the jury on August 21, 2008 and jury deliberations commenced at approximately 1:45 p.m. The next morning, the jury resumed deliberations and asked for a readback of S.W.'s testimony, which was completed shortly before 10:00 a.m. At approximately 10:30 a.m., the jury sent the judge a note indicating it was deadlocked and could not reach a unanimous decision. At 10:49 a.m. the jury entered the courtroom and the judge instructed the jury as follows:
It is your duty as jurors to consult with one another and to deliberate with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment [sic]. Each of you must decide the case for yourselves, but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of deliberations, do not hesitate to examine your own views and change your opinion if convinced it is erroneous. But, do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts.
So, again with that, we're going to ask you to please deliberate further and we'll return you to the jury room for deliberations at this time.
The jury resumed deliberations at 10:50 a.m., and requested a readback of Rodriguez's testimony concerning his observation of defendant's sale of CDS to the woman who approached him at the corner of 7th and York. The readback of the testimony began at 12:19 p.m. and concluded at 12:25 p.m. At 1:58 p.m., the jury notified the judge it had reached a unanimous verdict. The jury found defendant guilty of all five counts.
Prior to sentencing, defendant moved for a new trial, asserting the judge should have declared a mistrial when the jury indicated it was deadlocked, and arguing that the verdict was against the weight of the credible evidence. The judge denied the motion, reasoning that no error occurred, because he had instructed the jury in accordance with the model jury charge entitled "Further Jury Deliberations." As to defendant's claim that the verdict was against the weight of the evidence, the judge concluded that the testimony of the State's witnesses was sufficient to enable a reasonable factfinder to render a verdict of guilt beyond a reasonable doubt on each of the five counts.
At the time of sentencing on November 14, 2008, the judge began by reviewing defendant's prior criminal record, which included defendant's "long history of involvement with drugs and drug dealing." The judge emphasized that he would not take defendant's juvenile convictions or municipal court convictions into consideration when imposing sentence, and would confine his analysis of defendant's prior record to defendant's indictable convictions, which numbered four. In particular, the judge noted that defendant was convicted of third-degree drug distribution on October 15, 2004. On March 2, 2006, defendant was sentenced for three different crimes, each occurring on a different date, of which two were for distribution of CDS within 1000 feet of a school and the third was conspiracy to distribute CDS within a school zone. Based upon defendant's "long history of involvement with drugs and drug dealing," the judge found the existence of aggravating factor three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9).
The judge also found mitigating factor two, that defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). After weighing the aggravating and mitigating factors quantitatively and qualitatively, the judge concluded the aggravating factors outweighed the mitigating factors. The judge also observed that defendant's prior drug distribution convictions required the imposition of an extended term sentence, after which the judge imposed the sentence we have already described.
We turn to Point I, in which defendant maintains the jury instruction the judge provided after the jury reported it was deadlocked was "inadequate, misleading and resulted in a miscarriage of justice." The instruction the judge provided was identical to the model jury charge entitled "Further Jury Deliberations," which is derived from the principles discussed in State v. Czachor, 82 N.J. 392, 398 (1980). Defendant maintains that the judge erred by failing to include in his instruction three sentences from the American Bar Association Project on Minimum Standards for Criminal Justice, Standards relating to Trial by Jury, § 5.4 (1968) (ABA Standards), which read as follows:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
Defendant maintains that the three sentences contained in the ABA Standards that the judge omitted from his charge were "essential to provide balance and meaning to the remainder of the charge" because those sentences "reinforce the idea that each and every juror must agree to the decision . . . and the verdict must be unanimous."
Because defense counsel failed to object to the further instruction at the time it was given, the plain error standard applies, and we will not reverse on that ground absent a showing that the purported error was clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 333-34 (1971). We have carefully considered defendant's arguments in light of the record and applicable law and are satisfied that defendant's arguments are not meritorious and that no plain error occurred.
Suffice it to say, the judge's instruction tracked the model jury charge, see Model Jury Charge (Criminal), "Final Charge: Further Jury Deliberations" (2004), and satisfies the requirements of State v. Figueroa, 190 N.J. 219, 234 (2007), and Czachor, supra, 82 N.J. at 405-06, that the jurors be instructed to avoid surrendering their "honest convictions" for the sole purpose of arriving at a verdict. Nothing more is required by Figueroa, supra, or Czachor, supra.
Moreover, we review the charge as a whole when determining whether it was adequate. State v. R.B., 183 N.J. 308, 325 (2005). The unanimity instruction that defendant claims the judge should have given after the jury reported it was deadlocked was given to the jury immediately before the jury began its deliberations. Viewing the instructions as a whole, as R.B., supra, requires, we are satisfied that the judge's instructions were both comprehensive and entirely correct. We therefore reject the claim advanced in Point I.
In Point II, defendant maintains that the expert opinion provided by the State's drug distribution expert impermissibly infringed on the jury's exclusive duty to determine the facts. He maintains that Investigator MacNair's testimony was used to "fill the unmistakable gaps in the State's case." Defendant contends that the facts of this case are factually identical with the situations in State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006), and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). We disagree.
In Baskerville, the defendant was observed on the sidewalk in front of a vacant lot, when he was approached by a woman. Baskerville, supra, 324 N.J. Super. at 247-48. He then went to a vehicle, which was parked several feet away, reached into the undercarriage, removed a bag, then removed something from within the bag, and returned the bag into the undercarriage. Id. at 248. The defendant then returned to the woman, handed her the item he retrieved from the car and the woman handed him money. Ibid.
In Boston, the defendant was observed standing on the street and was approached by a woman. Boston, supra, 380 N.J. Super. at 489. The defendant then spoke with the co-defendant, who entered a house, returned and then handed something to the defendant. Ibid. The defendant was then observed handing the item to the woman and taking money in exchange. Ibid.
The limitations imposed on the State's use of a drug distribution expert were addressed by the Supreme Court most recently in State v. Nesbitt, 185 N.J. 504, 507 (2006), when the Court observed that the "[a]dmission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." The Court emphasized that because jurors are not generally aware of the "methods of operation utilized in street-level drug sales," id. at 506-07, especially when drug dealers "act in concert with others in the business of distributing drugs on the street," id. at 515, the use of an expert witness is permissible. Ibid.
In Nesbitt, the Court distinguished Boston and Baskerville from cases where expert testimony is needed to explain to jurors any "unusual aspect of [drug] transactions." Nesbitt, supra, 185 N.J. at 516. In Boston and Baskerville, "no expert was needed to explain the straightforward manner in which the transactions at issue took place." Ibid. In those cases, "each defendant was observed directly handing something to the alleged purchaser and receiving what appeared to be payment in return." Ibid. No aspect of that transaction was unusual or needed an expert to further explain. Ibid. Further, the Court "recognized the value to a jury in learning about street dealers' practice of using a 'money man' to limit their exposure to prosecution for drug distribution." Ibid. (citing State v. Berry, 140 N.J. 280, 304 (1995)).
Here, defendant was not involved in a straightforward drug transaction, like those of Boston or Baskerville. Defendant was observed receiving money from the woman driving the Toyota, while S.W. was observed looking around the area and later handing an item to the woman. When defendant was arrested, he was found with $70, while S.W. admitted possession of the drugs found in the store.
The testimony of Investigator MacNair explained to the jury the significance of one person serving as the "moneyman" and the other serving as a lookout and dealer, which was exactly the circumstance the Court deemed permissible in Nesbitt, supra, 185 N.J. at 515. Thus, defendant's arguments to the contrary notwithstanding, this case is factually distinguishable from Boston and Baskerville. The testimony of the State's expert did not invade the exclusive province of the jury. We therefore reject that portion of the argument defendant advances in Point
Defendant also argues in Point II that the form of the hypothetical question posed to MacNair, and his ensuing answer, were improper. Relying on State v. Reeds, 197 N.J. 280, 297 (2009), in which the Supreme Court criticized the expert opinion as "being tantamount to a legal conclusion," defendant argues that the opinion expressed by MacNair was "akin to a legal conclusion." In Reeds, the expert opined that the "eight hundred decks of heroin . . . were constructively possessed with the intent to distribute." Id. at 288. Here, unlike in Reeds, MacNair's testimony that one person was the "moneyman" and the other the "street-level dealer" did not "mimic the language of the statute" or incorporate "the pivotal legal element." Id. at 296. We thus reject defendant's argument respecting the form of the opinion expressed by MacNair, and reject, in their entirety, the arguments advanced in Point II.
In Point III, defendant maintains that because his conviction was against the weight of the evidence, the trial judge erred when he denied defendant's motion for a judgment of acquittal. After conviction, when a defendant moves pursuant to Rule 3:18-2, for a judgment of acquittal on grounds that the verdict was against the weight of the evidence, the trial court must determine: whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt. [State v. Rodriguez, 141 N.J. Super. 7, 11 (App. Div.), certif. denied, 71 N.J. 495 (1976)).]
In reviewing a trial judge's ruling on a motion for a new trial, we are obliged to afford substantial weight to the trial court's assessment of the credibility of the witnesses, and to the trial judge's "'feel of the case.'" State v. Carter, 91 N.J. 86, 96 (1982) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).
From the testimony of Trooper Rodriguez and Investigator MacNair, the proofs were more than sufficient to enable the jury to return a verdict of guilty on all five counts. In particular, the testimony of Trooper Rodriguez entitled the jury to conclude that defendant was the "moneyman" working in concert with S.W., who served as the lookout and who handed the CDS to the buyer. Viewing the evidence presented at trial in its entirety, the judge properly determined that the evidence amply supported defendant's guilt on each of the five charges, thereby requiring him to deny the motion for acquittal under Rule 3:18-2. Because defendant's conviction was not against the weight of the evidence, the judge did not err when he denied the motion. We therefore reject the claim defendant advances in Point III.
In Point IV, defendant maintains his sentence is excessive and must be reduced. In particular, he maintains that the record does not support the finding of aggravating factors three, six and nine, and also contends that the judge failed to explain his reasons for applying those three aggravating factors. Defendant's contentions are meritless. The judge thoroughly reviewed defendant's record of convictions, noting that defendant had accumulated three prior drug distribution convictions as well as a conviction for conspiracy to distribute CDS. Defendant's prior record amply supports the existence of the three aggravating factors the judge identified, and the judge provided ample reasons for so concluding.
Moreover, as the judge correctly noted, because defendant had at least one prior drug distribution conviction, upon request of the State, the judge was obliged to sentence defendant to an extended term of imprisonment, and to impose a mandatory period of parole ineligibility ranging from one-third to one-half of the sentence imposed. See N.J.S.A. 2C:43-6(f). Here, the extended term sentence was imposed on count four, and the judge imposed, as we have already noted, a sentence of sixteen years imprisonment with an eight-year parole ineligibility term. Thus, the sentence was only one year above the midpoint of the extended second-degree sentencing range. Moreover, defendant had two drug distribution convictions over and above the single drug distribution conviction that made the imposition of an extended term sentence mandatory. We also note that N.J.S.A. 2C:43-6(f) required a parole ineligibility term of no less than seven years because defendant had been convicted of a violation of N.J.S.A. 2C:35-6.
We are satisfied that the judge's findings regarding the aggravating and mitigating factors were well supported by the record, that the judge correctly applied the sentencing principles enunciated in the Code of Criminal Justice, and that the sentence imposed was not excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). We therefore reject defendant's claim that his sentence was excessive.