April 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
ALEJANDRO ROMAN BROOKS, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 30, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. The judge denied the State's motion for an extended term and sentenced defendant to three concurrent terms of five years in prison with two and one-half years of parole ineligibility. The State cross-appeals the denial of its motion and requests that we remand for re-sentencing in the second-degree range. We affirm the convictions and remand for re-sentencing.
At 11:00 p.m. on a clear night, Trooper Plantier (Trooper Plantier) and Trooper Ryan (Trooper Ryan) were parked in an unmarked undercover police car at an undisclosed location. Trooper Plantier observed through binoculars two drug transactions in an "open-air drug market" within 1000 feet from a school. Trooper Plantier saw the first transaction from a distance of 150 feet. He noticed co-defendant Angel Lopez remove a sandwich baggie from his pocket that contained small objects and hand it to another man. That man handed what appeared to be United States currency to Lopez. Lopez then placed the currency into his right back pocket. Trooper Plantier concluded, based on his extensive training in street drug transactions -- 250 CDS arrests and 150 surveillances --that he witnessed a hand-to-hand drug transaction.
Ten to fifteen seconds later, Trooper Plantier observed the second transaction. He noticed defendant exit an SUV parked across the street from the hand-to-hand transaction and walk over to Lopez. Defendant removed a sandwich baggie from his pocket and handed it to Lopez and Lopez placed it into his left pocket. Lopez then handed currency to defendant and defendant placed it into his back right pocket. Trooper Plantier concluded that he observed a "re-up" transaction -- a drug distribution technique where a suspected drug dealer (defendant) re-stocks the drug inventory for the seller (Lopez). Trooper Plantier radioed for back-up troopers to arrest defendant and Lopez.
Sergeant Katz and Trooper Austin arrived at the scene, arrested defendant and Lopez, and conducted a search incident to the arrests. The search uncovered $2,933 from defendant's right back pocket, and $36. plus four clear plastic baggies of crack cocaine packaged for street-level sales from Lopez.
In addition to Trooper Plantier, the State called Investigator Randall MacNair (Investigator MacNair) to testify during the trial. Investigator MacNair testified as the State's expert in the field of street-level drug sales.
Lopez testified at the trial and admitted that he was addicted to crack cocaine. He stated that he had been previously arrested for possession of cocaine and that he had purchased drugs in the past. Lopez denied that he was a drug seller. Defendant did not testify. He called one witness who testified that defendant had cashed two checks at her business totaling $6,172.05.
After a four-day trial, a jury found defendant guilty of all the charges and Lopez guilty of possession of CDS.*fn1 The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f because defendant had a prior 1000-foot conviction in 2005, but the judge denied the motion.
On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR 1 OF THE NEW JERSEY CONSTITUTION, AS WELL AS HIS RIGHT TO CONFRONT WITNESSES, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED (Partially Raised Below)
A. THE TRIAL COURT ERRONEOUSLY RULED THAT THE DEFENDANT MUST FILE A PRETRIAL MOTION TO DISCLOSE THE SURVEILLANCE LOCATION EVEN THOUGH TRIAL COUNSEL HAD NO NOTICE THAT THE STATE WILL BE RELYING ON THE SURVEILLANCE LOCATION PRIVILEGE AT TRIAL
B. THE TRIAL COURT IMPROPERLY ADMITTED EVIDENCE BY ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE CRIME OF POSSESSION OF CONTROLLED DANGEROUS SUBSTANCES WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S ERRONEOUS USE OF SPECIFIC ACTS NOT RESULTING IN A CRIMINAL CONVICTION TO IMPEACH A CRITICAL EXCULPATORY DEFENSE WITNESS (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS OPINION EVIDENCE WITHOUT PROPER FOUNDATION (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. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY PREJUDICIAL OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Not Raised Below)
A. OTHER-CRIME EVIDENCE WAS IMPROPERLY ADMITTED
B. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (Partially Raised Below)
We begin by addressing defendant's argument that his Sixth Amendment Confrontation Clause rights were violated because the judge prevented cross-examination of Trooper Plantier concerning the location of the surveillance and because a school-zone map was introduced into evidence without testimony from the preparer. We find both arguments to be without merit.
Trooper Plantier explained that the point from where he conducted the surveillance was still actively being used as a point of surveillance and refused on cross-examination to disclose the exact location. The prosecutor contended that such disclosure would compromise the officer's safety, and the judge agreed.
The New Jersey Supreme Court has recognized the State's right, under certain circumstances, not to disclose the exact location from which undercover surveillance is conducted. State v. Garcia, 131 N.J. 67, 70 (1993). In Garcia, the Court held that the "official information privilege" found in N.J.R.E. 515(b), formerly Evidence Rule 34, permits the State to withhold information about the exact location from which law enforcement officers observe criminal activity if the judge determines that disclosure of the information "would be harmful to the interests of the public." Id. at 74; N.J.S.A. 2A:84A-27. Additionally, the privilege exists if disclosure would present "a realistic possibility that revealing the location would compromise present or future prosecutions[,] or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. The Court gave the policy reasons underlying the privilege. "[N]on-disclosure avoids compromising on-going surveillances . . . . [It] protects police officers and private citizens from reprisal[,]" and it "encourages citizens to cooperate with police." Id. at 74-75. Thus, in some circumstances, a defendant's right to information that is not vital to the defense must yield to the societal interest in effective law enforcement. Id. at 76-77.
A court's determination not to disclose a surveillance location will not be disturbed on appeal absent a showing that there was an abuse of discretion. State v. Zenquis, 131 N.J. 84, 88 (1993). "Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis." Garcia, supra, 131 N.J. at 80. "In deciding whether to require disclosure, a court must focus on the negative effect that such disclosure may have on the public good[,]" Ibid., against the defendant's need for the information to prepare his defense. Id. at 81; Zenquis, supra, 131 N.J. at 88. "[A] defendant seeking to learn the location of a police surveillance post should ordinarily show that he or she needs the evidence to conduct his or her defense and that there are no adequate alternative means of getting at the same point." State v. Williams, 239 N.J. Super. 620, 631 (App. Div. 1990). Thus, defendant must make a "substantial showing of need to defeat the State's proper assertion of the privilege." Garcia, supra, 131 N.J. at 81; State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995).
Based on our review of the record and applicable law, we conclude that
the judge did not abuse his discretion when he refused to allow
defense counsel to learn the exact location of the surveillance
vantage point. The judge permitted defense counsel to question Trooper
Plantier concerning the distance, direction, elevation, the use of
visual aids, lighting conditions, and his line of sight.*fn2
Regardless of the judge's ruling, Trooper Plantier admitted
during his testimony that his "surveillance location was at the
opposite corner" from where the transactions occurred. As a result,
defendant was not prejudiced in any way.
Next, the State introduced into evidence without objection the school-zone map to prove that the crimes occurred within 1000 feet of a school. Defendant now contends for the first time that his rights under the Sixth Amendment Confrontation Clause were violated because the map was introduced into evidence without testimony from the preparer. We review defendant's argument according to the plain error standard because no objection was made to this evidence. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Pursuant to N.J.S.A. 2C:35-7f, the State may introduce the map as prima facie evidence of the location and boundaries of the area within 1000 feet of a school. The map is also admissible into evidence under N.J.R.E. 803(c)(8) as a "public record," and N.J.R.E. 803(c)(6) as a "business record." Thus, the map is not inadmissible hearsay.
In a criminal case, however, the use of out-of-court testimonial statements are inadmissible under the Confrontation Clause unless the witness is unavailable and defendant had an opportunity to cross-examine that witness. State v. Basil, 202 N.J. 570, 591 (2010) (citing Crawford v. Washington, 541 U.S. 36, 50-53, 124 S. Ct. 1354, 1363-65, 158 L. Ed. 2d 177, 192-94 (2004)). The question is whether the map, a "business record," is considered testimonial. Generally, "business records" are considered non-testimonial. Crawford, supra, 541 U.S. at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195-96.
Relying on State v. Simbara, 175 N.J. 37, 40 (2002), defendant argues that he is entitled to confront the preparer of the map. His reliance on Simbara is misplaced. In Simbara, the defendant's Sixth Amendment rights were violated because he was not permitted to cross-examine the preparer of toxicology results that were obtained against him in anticipation of trial. Id. at 48-49. The toxicology report was considered testimonial. Id. at 49. Here, the map in question was adopted in general as an official record by an appropriate ordinance and was not prepared specifically for use against defendant. Thus, the admission of the map did not violate defendant's Sixth Amendment right to confrontation because the map is not considered "testimonial." We see no error to the introduction of the school-zone map into evidence, let alone plain error. Finally, because defendant did not object to the admissibility of the map, the State was denied the opportunity to call additional witnesses to bolster its case.
Defendant next argues for the first time that Investigator MacNair was unqualified to testify that fingerprints cannot be lifted from drug packaging. We review defendant's argument according to the plain error standard because no objection was made to this testimony. R. 2:10-2.
Investigator MacNair testified as an expert in street-level drug sales and distribution. He stated that in his extensive training and experience he has never seen fingerprints taken off a plastic baggie. In that capacity, he was qualified to testify about packaging and whether an investigation would normally include fingerprint analysis. Defense counsel capitalized on that testimony and argued to the jury that although he was an expert in street sales, Investigator MacNair is not an expert in fingerprint technology and the lack of fingerprints on the baggie raises a reasonable doubt concerning defendant's involvement in the case. We see no error.
We reject defendant's contention for the first time on appeal that Trooper Plantier's use of the term "re-up" denied him a fair trial. Defendant suggests that the term "re-up" implies that defendant engaged in other crimes inadmissible under N.J.R.E. 404(b). The trooper testified that defendant engaged in a technique -- described as "re-up" -- whereby defendant re-stocked inventory for Lopez. His testimony did not introduce other crime evidence, but rather, conduct that the trooper observed when the hand-to-hand drug transaction occurred. We see no error to this testimony.
On its cross-appeal, the State contends that the judge erred by failing to grant its motion for an extended term, and by imposing three concurrent prison terms rather than merging the possession and possession with intent convictions into the 1000 foot conviction. We agree.
N.J.S.A. 2C:43-6f mandates the imposition of an extended term when a defendant has been previously convicted of certain designated offenses, including possession of CDS with intent to distribute. It is undisputed that defendant had a prior conviction for possession of CDS with intent to distribute within a 1000 feet. The extended term shall include a minimum term which is "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater[.]" Ibid. Defendant's prior conviction is an enumerated offense that triggers imposition of a mandatory extended term.
Defendant's convictions for possession of CDS and possession with intent to distribute also merge into his 1000-foot conviction. State v. Gonzalez, 123 N.J. 462, 464 (1991); State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).
We have carefully considered the remaining arguments made by defendant in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
We affirm defendant's convictions and remand for re-sentencing. We do not retain jurisdiction.