March 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANNY REYES, DEFENDANT-APPELLANT.
On appeal from Superior Court of new Jersey, Law Division, Camden County, Indictment No. 07-12-4049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant Danny Reyes was charged, under Camden County Indictment Number 07-12-4049, with third-degree possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of a controlled dangerous substance in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of a controlled dangerous substance within 1000 feet of a school in violation of N.J.S.A. 2C:37-7 (count three); second-degree distribution, dispensing or possessing with intent to distribute a controlled dangerous substance within 500 feet of real property comprising a public housing facility, a public park, or a public building in violation of N.J.S.A. 2C:35-5a, and contrary to N.J.S.A. 2C:35-7.1 (count four); third-degree conspiracy to possess a controlled dangerous substance with the intent to distribute in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1)(b)(3) (count five); and fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a)(2) (count six). Tried by a jury, defendant was found guilty of all charges.
On December 8, 2008, the trial judge merged counts one, two, three and five into count four--the second-degree offense. Defendant was sentenced to ten years of imprisonment with five years of parole ineligibility, as well as other appropriate fines and penalties. Regarding the conviction under count six, which did not merge with count four, the trial judge sentenced defendant to eighteen months of imprisonment to run concurrent with the sentence on count four. Defendant appeals. We affirm.
The relevant facts based on the testimony may be summarized as follows. On September 28, 2007, at approximately 7:00 a.m., the High Intensity Drug Trafficking Area (HIDTA) Narcotics Group conducted a buy/bust operation in the area of Seventh and York Streets in Camden. Officer Shannon Smith of the Camden Police Department was assigned, as an undercover operative, to purchase illegal narcotics from drug dealers at the location mentioned. United States currency bills were provided to facilitate the buys. The serial numbers on the bills were recorded by photocopying with a view to recovering the bills after the sale by using backup units and making arrests.
Officer Smith testified that he had previously purchased illegal narcotics in this area as an undercover officer approximately fifteen times and had participated in approximately fifty drug arrests.
Officer Smith waited less than two minutes before he was approached by an individual later identified as Jose Ortiz. Ortiz asked Officer Smith what he was looking for and Officer Smith replied, "two bags of dope meaning heroin." Ortiz then walked halfway down the block and spoke to another person who was later identified as defendant.
Defendant approached Officer Smith on his bicycle and inquired as to what he wanted. Officer Smith answered, "two bags of dope." Defendant inquired if Officer Smith was "21 Jump Street," that is, police. Officer Smith said he was not. Defendant then opened a small change purse containing heroin and handed Officer Smith two bags of heroin in exchange for two of the photocopied ten dollar bills. Officer Smith put the two bags in his pocket and returned to his vehicle while his partner, Investigator Warwick, provided descriptions of defendant and Ortiz to the backup teams.
Officer Smith testified that after leaving the area, he circled the block and confirmed that the backup units arrested the correct individuals, Ortiz and defendant. Officer Smith further stated that he met with his sergeant at a predetermined location and turned the evidence over to him. Officer Smith testified that the location of the drug transaction was within 1000 feet of Pine Point School and within 500 feet of Pine Point Park.
On cross-examination of Officer Smith, it was brought out that no fingerprints were recovered from the two bags of heroin purchased from defendant. On redirect, Officer Smith testified that he was standing no more than six inches to a foot from defendant at the time he made the buy and had no doubt that defendant was the individual who had sold him the heroin. The drugs were not fingerprinted because, as he put it, "[defendant] gave them directly to me."
Detective Sean Miller of the Camden Police Department was a member of the backup teams and made the arrest of defendant. After receiving descriptions of the individuals involved in the sale, Detective Miller observed defendant on a bicycle, and Ortiz, standing by the corner store. Detective Miller announced he was police when he exited his vehicle. Initially, defendant fled on his bicycle, which he eventually abandoned, but continued to flee on foot. He was apprehended by Detective Miller who never lost sight of defendant throughout the pursuit. A search incident to arrest of defendant led to the recovery of the recorded ten dollar bills that Officer Smith had used to purchase the two bags of heroin from defendant, as well as an additional fourteen dollars. Asked on cross-examination whether the bags of heroin were fingerprinted, Detective Miller testified that "[i]t would be absurd to fingerprint the drugs. It's . . . a hand-to-hand sale."
On appeal, defendant raises the following issues for our consideration:
POINT I 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 II DEFENDANT'S SENTENCE WAS EXCESSIVE.
POINT III DEFENDANT IS ENTITLED TO RE-SENTENCING UNDER THE 2010 AMENDMENTS TO N.J.S.A. 2C:35-7.
In Point I, defendant maintains that the State's failure to lift fingerprints off of the two bags of heroin and to videotape the alleged drug transaction violated defendant's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Defendant contends that the State was under an obligation to conduct a competent investigation which might lead to evidence favorable to the accused. By not conducting such an investigation, defendant's right to a fair trial was infringed upon.
Simply stated, defendant is wrong in his untenable and unwarranted extension of Brady v. Maryland. We rejected a similar argument in State v. Johnson, 203 N.J. Super. 127 (App. Div.), cert. denied, 102 N.J. 312 (1985). There, we observed that "Brady cannot be read to be so broad as to impose upon the police a duty to investigate. The rule expressed [in Brady] is limited to those instances where the prosecution has information in its possession." Id. at 132. The State was not under a duty to conduct an investigation to suit a defendant's view of the case. Ibid. This is especially so here, where defendant sold drugs to an undercover officer directly and was arrested with the recorded ten dollar bills in his possession.
The same applies to the contention that the police should have videotaped the transaction. While it would no doubt be a plus to law enforcement to be in a position to videotape crimes as they are committed, it would also require considerable resources to do so. The State has no constitutional duty to make such a herculean effort.
We addressed somewhat comparable circumstances in State v. Gordon, 261 N.J. Super. 462 (App. Div. 1993). There, the defendant argued that the State's decision to "discontinue [the] videotaping [of] driving under the influence cases" deprived him of his right to preserve evidence, "thereby violating his right to due process under the law." Commenting that the cases the defendant relied upon dealt with the "loss or destruction of existing evidence," we ruled that the "[State] is not obligated to create tangible items of evidence; [it] is only required to turn over items 'within the possession, custody or control of the prosecuting attorney.'" Id. at 465 (quoting Rule 3:13-3(a)(4), (6) and (8)). We also observed that we were unaware of any "case[s] in any jurisdiction which impose a duty to create evidence." Id. at 465-66. We further noted that the United States Supreme Court has held that the police do not have any duty to "create evidence through the use of any particular investigative technique." Id. at 466. See Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S. Ct. 333, 338, 102 L. Ed. 2d 281, 290 (1988), reh'g denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989).
Defendant's due process rights were not violated because the police did not extend their investigation by seeking to lift fingerprints off of the heroin bags bought by the undercover officer directly from defendant and in not videotaping the drug transaction as it was committed. Brady v. Maryland does not require a duty to create evidence, but only to turn over evidence to a defendant already in the State's possession.
Defendant argues in Point II that his sentence was excessive. He asserts that he should not have been sentenced to the maximum term for a second-degree crime, but rather to a minimum term of five years. Our review of the record satisfies us that Judge John T. Kelley properly weighed the aggravating factors, which were well-supported by the record, against the mitigating factors, which were lacking, and imposed a sentence reflective of the predominance of the aggravating factors. See, e.g. State v. Cassady, 198 N.J. 165, 180-84 (2009). Defendant, with five prior indictable drug offense convictions, was eligible for mandatory extended term sentencing, which the State did not seek. See N.J.S.A. 2C:43-6f. We discern no abuse of sentencing discretion, nor is our judicial conscience shocked by the sentence imposed. State v. Roth, 95 N.J. 334, 363-64 (1984).
In Point III, defendant contends that based upon the 2010 amendment to N.J.S.A. 2C:35-7, which allows for the reduction of a parole disqualifier in certain school zone cases, he is entitled to a remand for resentencing pursuant to this amendment due to the fact that his case was "pending" on appeal on the date of enactment. We disagree.
First, defendant was not sentenced under N.J.S.A. 2C:35-7. The school zone conviction was merged with count four, a conviction under N.J.S.A. 2C:35-7.1 for distributing a controlled dangerous substance "within 500 feet of the real property comprising a public housing facility, a public park, or a public building. . . ." Here, the real property was Pine Point Park. Thus, the 2010 amendment has no application.
Moreover, the language of the amendment sets forth criteria, exclusively related to a school zone, which are not applicable here, and are to be considered in determining whether a sentence reduction is warranted. N.J.S.A. 2C:35-7b(1) reads:
Notwithstanding the provisions of N.J.S.A. 2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subsection b. of N.J.S.A. 2C:43-2. In making this determination, the court shall consider:
(a) the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted;
(b) the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location;
(c) whether school was in session at the time of the offense; and
(d) whether children were present at or in the immediate vicinity of the location when the offense took place.
(2) The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:
(a) the offense took place while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or while on any school bus; or
(b) the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.
If the court at sentencing elects not to impose a minimum term of imprisonment and parole ineligibility pursuant to this subsection, imposes a term of parole ineligibility less than the minimum term prescribed in subsection a. of this section, or places the defendant on probation for a violation of subsection a. of this section, the sentence shall not become final for 10 days in order to permit the prosecution to appeal the court's finding and the sentence imposed. The Attorney General shall develop guidelines to ensure the uniform exercise of discretion in making determinations regarding whether to appeal a decision to waive or reduce the minimum term of parole ineligibility or place the defendant on probation.
Nothing in this subsection shall be construed to establish a basis for overcoming a presumption of imprisonment authorized or required by subsection d. of N.J.S.A. 2C:44-1, or 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 or upon conviction for a crime other than the offense set forth in this subsection.
As expressly set forth, the criteria cover various considerations relating to schools, e.g., whether the school is in session, whether children were "present" or in the immediate vicinity when the offense took place. None of the criteria enumerated, except "the extent of defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted . . ." has any applicability to defendant's conviction on count four. N.J.S.A. 2C:35-7b(1)(a). It would serve no purpose to remand when the statutory criteria, which the court must consider, have no application to the offense for which defendant was sentenced.
Defendant asserts that the five year parole disqualifier was exclusively based upon N.J.S.A. 2C:35-7, count three of the indictment, which requires a period of parole ineligibility regardless of its merger with the second degree offense. State v. Dillihay, 127 N.J. 42, 45 (1992) ("[C]onvictions for school-zone offenses must merge into convictions for related first or second degree Section 5 offenses, but . . . in such cases a mandatory minimum sentence no less severe than that required by the school-zone statute should nevertheless be imposed on defendants convicted of a Section 5 offense".)
While Judge Kelley referred to the parole disqualifier mandated by N.J.S.A. 2C:35-7 at the time of sentencing as "the genesis of the five years to be served in this instance," it is clear that he imposed the five year period of parole ineligibility because defendant earned it with his five prior drug convictions for which he received prison sentences and still was not deterred from committing a sixth drug offense.
There is no basis, nor any statutory requirement to remand for resentencing under the circumstances.
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