June 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKY WILLIAMS, A/K/A CARL WILLIAMS, RICKY T. WILLIAMS, RICKY THOMAS WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3317.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2011 - Decided
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Defendant Ricky Williams appeals from his jury conviction for drug offenses and the sentence imposed by the court. On appeal, defendant presents these arguments for our consideration:
THE TESTIMONY OF LIEUTENANT MINOVICH DENIED DEFENDANT A FAIR TRIAL AND THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL REGARDING SAID TESTIMONY WAS ERROR.
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW TRIAL MOTIONS. POINT THREE
OFFICER MATTHEW IMPROPERLY BOLSTERED THE CREDIBILITY OF LIEUTENANT MINOVICH.
DETECTIVE HOLLOWAY'S EXPERT OPINION USURPED THE ROLE OF THE JURY.
THE TESTIMONY OF DETECTIVE HOLLOWAY IMPROPERLY BOLSTERED THE FACT WITNESSES. POINT SIX
OFFICER DUMANGYNE'S TESTIMONY DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL ERRORS, IN THEIR AGGREGATE, DENIED DEFENDANT A FAIR TRIAL.
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE. POINT NINE
THE TRIAL COURT ERRED BY REFUSING TO REVIEW THE INTERNAL AFFAIRS RECORDS OF LIEUTENANT MINOVICH AND SERGEANT COSTA.
We have considered each of these contentions in light of the record and the applicable legal standards. We affirm.
I. On June 14, 2007, defendant and co-defendant Ismael Binbow were arrested by Lieutenant Neal Minovich, the commander of the Newark Police Department Narcotic Enforcement Team (the team), and Sergeant Costa, another member of the team, who observed the two participate in what they believed was a narcotics transaction. At the time of their observation, Lieutenant Minovich and Sergeant Costa were on routine patrol, wearing plain clothes and driving an unmarked white Ford Explorer. They were followed by two plain clothes team members, officers Kevin Matthew and Jobani Dumangyne,*fn1 who were driving an unmarked blue Ford Crown Victoria. As the officers turned onto West Alpine Street where it intersects with Milford Avenue in Newark, driving the wrong way up a one-way street, they saw a man, later identified as defendant, standing at the driver's side door of a green Chevy Lumina. Co-defendant Binbow was observed sitting in the driver's seat of the Lumina. Binbow handed defendant a package, which the officers believed was a block of heroin. As defendant accepted the package, he turned and spotted the officers approaching. Defendant handed the package back through the driver's side window to Binbow and began walking away from the Lumina.
The officers stopped their vehicles; however, before they exited, Binbow put his car in gear and traveled the wrong way down Milford Avenue "at a high rate of speed in reverse[.]" Sergeant Costa ordered Officer Matthew to arrest defendant while the other officers chased after Binbow in their two vehicles. Officer Matthew remained at the scene with defendant until two marked units arrived to provide assistance.
After a chase, Binbow was captured and the police recovered the package he had thrown into a vacant lot. The police confirmed the package contained 751 glassine envelopes of heroin, including one "sampler pack," which was taped to the outside of the block. The individual envelopes were bundled in packs of ten, known as a "deck," which were then packed into bricks of five decks. Each deck was stamped in red ink with the words "Bad Apple." In total, the block contained fifteen bricks.*fn2 At the time of arrest, Binbow possessed $928: one $100 bill, three $50 bills, five $20 bills, thirty-one $10 bills, forty-three $5 bills, one $2 bill, and fifty-one $1 bills. Defendant possessed $618: one $20 bill, twenty-six $10 bills, sixty-seven $5 bills, and three $1 bills.
During the joint nine-day trial, the State presented testimony from Lieutenant Minovich, Officers Matthew and Dumangyne, and narcotics expert Detective Reginald Leon Holloway. In his case, defendant presented the testimony of his wife, Pamela Williams, his daughter, Relieka Williams, and his neighbors, Donald Franklin and Cliff Lewis, who each provided their eyewitness accounts of defendant's arrest and their interaction with the police officers at the scene. Binbow did not present any witnesses.
The jury found defendant guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one)*fn3 ; second-degree possession of more than one-half ounce and less than five ounces of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).
Defendant filed a pro se motion for a new trial, arguing the State ignored his discovery requests. Prior to trial, defendant's counsel requested "[a]ny and all internal affairs complaints/investigations involving any of the law enforcement officers involved in this matter." Lieutenant Minovich and Sergeant Costa had been the subjects of an investigation by the Essex County Prosecutor's Office as reported in a newspaper article detailing a civil suit brought by the family of a man who died during an unrelated drug arrest. On August 3, 2009, the trial court denied defendant's motion.
After merging counts one, three, and four into count two, the court sentenced defendant to sixteen years imprisonment on count two, with an eight-year parole ineligibility period. The required fines and penalties were also imposed. This appeal ensued.
II. We will review each of the issues raised by defendant. When appropriate, we have combined certain claims within the same section.
A. Defendant argues the court erred in denying his motion for a mistrial following Lieutenant Minovich's testimony, acquittal at the close of the State's case, and a new trial following conviction. We disagree.
1. Defendant submits Lieutenant Minovich's testimony suggested defendant had a criminal past and was the equivalent of other crimes evidence. He asserts the testimony was prejudicial and its admission "den[ied] him a fair trial." We are not persuaded.
During Lieutenant Minovich's redirect testimony, the assistant prosecutor asked whether he knew defendant or co-defendant Binbow. Before he answered, a defense objection was made and sidebar held. The State represented Lieutenant Minovich's answer would be a "no," and the objection was withdrawn. Lieutenant Minovich actually responded, "I could have had contact in the past with either one of the males. I just don't recall." When the witness stepped-down, at sidebar, the court inquired as to whether a curative instruction should be presented to the jury. After a lengthy discussion outside the presence of the jury, counsel remained steadfast that defendant was prejudiced and moved for a mistrial, which was denied. When testimony resumed, Lieutenant Minovich was examined to elicit curative responses. When the form of the proposed leading questions was finalized, the jury returned and cross-examination, using the pre-determined questions, continued as follows:
[ATTORNEY FOR DEFENDANT]: Lieutenant, just a little background, is it fair to say that you've worked in that general area in other part-time jobs? [Lieutenant Minovich]: Yes.
Q: You worked there in a hospital I think.
Q: Anything else?
A: That's pretty much . . .
Q: Right, so -- so you've seen people come and go from -- from that area for years, --A: Yes.
Q: -- right? Is it fair to say that as you sit here today, you have no knowledge of ever investigating either one of these defendants for any criminal offenses, is that so?
Q: And you have no knowledge of ever arresting either one of these individuals for any criminal offense, is that so?
Q: So, when you say -- you said before, you know, you weren't quite sure, you might have seen one or both around the neighborhood, but never for anything criminal. Is that correct?
A: That's correct.
A court should grant a mistrial "only when the trial court finds that as a result of error[,] manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). See R. 3:20-1. The denial of a request to grant a mistrial will not be disturbed on appeal absent a clear showing of mistaken use of discretion by the trial court or a finding of manifest injustice. State v. Labrutto, 114 N.J. 187, 207 (1989); Pressler & Verniero, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2011). Accordingly, a "trial court's decision is granted great deference on appeal." Hogan, supra, 297 N.J. Super. at 15. In our review, we determine whether the denial of the motion "denied a fair trial and a fair decision." State v. Macon, 57 N.J. 325, 338 (1971); R. 2:10-2.
In reviewing defendant's assertion, we agree that "a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005). See also State v. Tilghman, 345 N.J. Super. 571, 578 (App. Div. 2001) (requiring a new trial following police officer's testimony that "when he heard the victim's description, he suspected that the assailant was [the] defendant because he knew him"). To warrant reversal, an improper statement must have the capacity to cause prejudice.
Lieutenant Minovich's comment closely resembles the statement we examined in State v. Ramos, 217 N.J. Super. 530 (App. Div.), certif. denied, 108 N.J. 677 (1987). In Ramos, the arresting police officer testified that he was "familiar" with the defendant. Id. at 537-38. In follow-up testimony, the officer explained that "as a patrol officer he knew many people who lived in the neighborhood[.]" Id. at 538. The statement did not link the defendant to the offense and the officer explained that his employment resulted in broad community interaction, therefore we concluded the statement did not have the capacity to prejudice the defendant. Ibid.
Here, nothing suggests the jury's verdict was a product of bias because of Lieutenant Minovich's statement that he might have had past contact with defendant or his co-defendant. Defendant did not request a further curative instruction, likely because the series of clarifying follow-up questions effectively elucidated that defendant had not been involved in past criminal activity. We fail to discern "a manifest injustice" or error that would have misled the jury to reach an incorrect result.
2.We next review defendant's claims of error in the denial of his applications challenging the sufficiency of the State's proofs to support conviction. Defendant maintains the court improperly denied his motion for judgment of acquittal at the close of the State's case, R. 3:18-1, and a new trial after verdict, R. 3:20-1, because the element of possession was not proven.
In reviewing the denial of a motion for judgment of acquittal at the close of the State's case, R. 3:18-1, we use the same standard as the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006). A trial judge considering the motion must determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975). As stated by the Court in Reyes, supra, the test for a judgment of acquittal is whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, 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, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [50 N.J. at 458-59.]
See also R. 3:18-1; State v. Wilder, 193 N.J. 398, 406 (2008); State v. Josephs, 174 N.J. 44, 81 (2002). If the evidence meets that standard, the motion for acquittal must be denied. State v. Spivey, 179 N.J. 229, 236 (2004).
The drug offenses charged each contain the element of possession, which defendant argues the State failed to prove. We disagree.
Under N.J.S.A. 2C:2-1(c), one has committed the act of criminal possession if he or she "knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." The essential elements of actual possession include: "' intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by  knowledge of its character.'" State v. Scott, 398 N.J. Super. 142, 150-51 (App. Div. 2006) (quoting State v. Brown, 80 N.J. 587, 597 (1979)). The duration of the actual possession is unimportant if these elements are present. See State v. Thomas, 105 N.J. Super. 331, 334-35 (App. Div. 1969), aff'd o.b., 57 N.J. 143 (1970).
As noted by the trial judge in his review of the motion for acquittal, sufficient direct and circumstantial evidence was presented to prove defendant's possession of the heroin. See Scott, supra, 398 N.J. Super. at 150-51 (stating possession may be proven by circumstantial as well as direct evidence). Lieutenant Minovich and Officers Matthew and Dumangyne saw defendant take the brick of heroin from Binbow. The brick, although wrapped in magazine paper, had a sampler package -- a single labeled glassine envelope -- taped to the outside. That testimony provided sufficient evidence from which a rational jury could find defendant knew he was accepting a package of glassine vials of heroin. Further, Detective Holloway provided expert testimony regarding the packaging method employed in the street distribution of narcotics, to prove the possession was for the purposes of distribution.
Defendant suggests he immediately divested his possession of the package demonstrating no intention to exercise dominion and control. However, where the character of the item is known all along, one cannot discard it to avoid prosecution. State v. McMenamin, 133 N.J. Super. 521, 524 (App. Div. 1975). In this case, defendant passed the brick back to Binbow after he spotted the approaching police officers.
Viewing the State's evidence in its entirety and drawing all favorable inferences from the facts presented, the court correctly determined the evidence could reasonably support a finding of guilt beyond a reasonable doubt. The motion for acquittal was properly denied.
Next, "[i]n examining a trial court's denial of a motion for a new trial based on insufficiency of the evidence, an appellate court may not reverse that ruling 'unless it clearly appears that there was a miscarriage of justice under the law.'" State v. Afanador, 134 N.J. 162, 178 (1993) (quoting R. 2:10-1). A court may not "set aside [a jury verdict] as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1; see also State v. Perez, 177 N.J. 540, 555 (2003). "[T]he objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) (citing State v. Balles, 47 N.J. 331, 337 (1966), appeal dismissed and cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)), certif. denied, 151 N.J. 470 (1997). Applying these standards, our examination discloses no miscarriage of justice occurred.
The trial court's factual findings regarding the issue of possession made at the close of the State's case equally apply when reviewing defendant's motion for a new trial. In addition, the jury had the benefit of the defense witnesses' testimony, including that of defendant's daughter, who stated her father had not been near the Lumina prior to being arrested. The issue of whether defendant accepted the brick of heroin from Binbow required an assessment of credibility, a determination for the jury's consideration. State v. Long, 216 N.J. Super. 269, 279-80 (App. Div. 1987). The trial judge appropriately "sifted" through all the evidence "'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Afanador, supra, 134 N.J. at 178 (quoting State v. Carter, 91 N.J. 86, 96 (1982)). We concur with the trial judge's assessment based on the record that the evidence was sufficient to allow a reasonable jury to find guilt beyond a reasonable doubt.
B. The next series of arguments challenge aspects of the testimonial evidence offered by the State. The first two include defendant's claims that: (1) Officer Matthew's testimony improperly bolstered the credibility of Lieutenant Minovich (Point Three), and (2) Officer Dumangyne's testimony denied him a fair trial (Point Six); the next two contest aspects of the expert's testimony, asserting Detective Holloway's statements (3) usurped the role of the jury (Point Four), and (4) improperly bolstered the fact witnesses (Point Five). We are not persuaded by these contentions.
1. Defendant takes issue with the re-direct examination of Officer Matthew. Over objection, the prosecutor read the factual statements contained in an incident report prepared by Lieutenant Minovich, pausing after each sentence to ask whether the recited facts were accurate. Following an objection, the court instructed the State to focus on the officer's knowledge of the incident. The prosecutor then asked Officer Matthew whether he had reviewed the report that day and if it represented an accurate representation of what occurred, to which he responded, "[y]es."
Additionally, defendant argues the report constituted inadmissible hearsay, asserting the claimed error was "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. See State v. Frisby, 174 N.J. 583, 592 (2002) (holding "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused, the testimony violates the hearsay rule and implicates defendant's Sixth Amendment confrontation rights"). See also Neno v. Clinton, 167 N.J. 573, 585 (2001) (holding that a police officer may not render an opinion about events based on a review of an eyewitness's statement).
In our view, the questions posed using Lieutenant Minovich's report confirmed Officer Matthew's involvement with the case and were not designed to bolster the overall contents of the report. We also reject the notion that Officer Matthew's testimony of his participation in the arrest was based on his review of Lieutenant Minovich's report rather than his recollection and personal knowledge of the events. Officer Matthew's direct testimony detailed his involvement in all events leading up to defendant's arrest. The redirect inquiry was elicited only to challenge cross-examination that attempted to dilute Officer Matthew's testimony, suggesting he had not prepared his own report.
Further, the general statement by Officer Matthew that Lieutenant Minovich's report was accurate was tempered by his statements that he had no direct knowledge of what happened when the other team members chased after Binbow, as he did not participate in Binbow's pursuit and capture. We discern no basis to conclude the jury was misled by this testimony when determining defendant's guilt. Finally, although the court did not definitively sustain the defense objections, but merely told the prosecutor to focus her questions, that omission was not "clearly capable of producing an unjust result[.]" R. 2:10-2.
2. Defendant argues the admission of portions of Officer Dumangyne's testimony was unduly prejudicial. We disagree.
When asked on cross-examination about whether he wore his badge during undercover operations, Officer Dumangyne answered, "Yes, it's always displayed." He then volunteered that it doesn't really matter because the undercover vehicles all had tinted windows. Counsel said, "You're not concerned about the badge because it's hard for people to see inside the vehicle?" Officer Dumangyne responded, "Most people know our cars anyway[.]" This answer prompted a question by the State on redirect as to what Officer Matthew meant by "most people know your car." Dumangyne replied, "Most . . . people who engage in narcotic activity." Defendant finally objected after another question was posed. At side bar, after discussion, the court denied the State's additional inquiry into this area.
Appellate review of a trial court's evidentiary ruling is governed by an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010); State v. Kemp, 195 N.J. 136, 149 (2008). "[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971). To warrant reversal, the error must have been one "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336.
Police officers have been permitted "'to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary.'" State v. Kittrell, 279 N.J. Super. 225, 235 (App. Div. 1995) (quoting State v. LaBrutto, 114 N.J. 187, 198 (1989)). But see State v. McLean, ___ N.J. ___ (2011) (slip op. at 13) (holding that a police officer's testimony that he saw defendant engage in behavior that the officer believed was a narcotics transaction did not qualify as a lay opinion under N.J.R.E. 701, because it expressed a belief in defendant's guilt and presumed to comment on an issue requiring expert opinion).
Here, Dumangyne's remark that "people who engage in narcotic activity" are typically familiar with the unmarked police vehicles was not admissible as appropriate N.J.R.E. 701 lay opinion because it was not rationally based but generally speculative, see N.J.R.E. 701, and otherwise, not a matter of personal knowledge. See also N.J.R.E. 602 (requiring that a fact witness have "personal knowledge of the matter" in order to testify).
Notwithstanding the inadmissibility of the remark, the error was harmless. Cross-examination raised the initial comment, which the State sought to clarify on redirect. Following the belated objection, the court ordered the State to end its line of questioning. No additional curative instruction was sought and no request to strike was made, suggesting the challenged testimony had little impact. State v. Nelson, 173 N.J. 417, 471 (2002). While "depreciatory innuendoes and insinuations destitute of all probative substance may be very devastating to the protective rights of a defendant," the challenged remarks in the instant case were brief, by no means pervaded the trial, and were not so inflammatory as to work the kind of prejudice that would warrant reversal. State v. Bartell, 15 N.J. Super. 450, 458 (App. Div. 1951), aff'd, 10 N.J. 9 (1951).
3. Defendant also claims error in the trial court's admission of the expert testimony of Detective Holloway. More specifically, defendant asserts the expert opined on the ultimate determination, treading on the province of the jury.
Detective Holloway's credentials as an expert were stipulated by all parties and he thereafter provided evidence regarding the street distribution of narcotics, explaining the various forms of heroin, its typical packaging when sold on the street, and the purpose of using logos stamped on the envelopes. Additionally, based upon a hypothetical scenario mirroring the facts of the present case, Detective Holloway rendered his expert opinion that "subject A possessed the recovered narcotics with the intent to distribute  for monetary gain[.]" Defendant argues when stating his conclusions, in using the phrase "possession with the intent to distribute[,]" Detective Holloway addressed the ultimate issue in the case by thus usurping the role of the jury. See State v. Reeds, 197 N.J. 280, 285 (2009) (stating "[an] expert may not usurp the province of the jury to decide the ultimate issue of defendant's guilt").
Drug experts are frequently called upon in criminal cases to testify about the "properties, packaging, and value of illegal drugs[,]" as well as the purpose or intent of the individuals in possession of such drugs, subjects which have been held to be beyond the ken of the average juror. State v. Summers (Summers II), 176 N.J. 306, 312 (2003). See also State v. McLean, supra, slip op. at 13; State v. Odom, 116 N.J. 65, 76 (1989). An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged, Odom, supra, 116 N.J. at 77, but may express an opinion that "embraces an ultimate issue to be decided by the trier of fact." Summers II, supra, 176 N.J. at 312. See N.J.R.E. 704.
Odom first set forth the strict limitations to be employed when the State relies on an expert to express an opinion on the issue of an intent to distribute narcotics, suggesting the use of a hypothetical adduced from the facts presented at trial and a query to the expert whether, in his opinion, the drugs described in that hypothetical were possessed for the purpose of distribution or personal consumption. Odom, supra, 116 N.J. at 81-82. The question posed must be limited to the evidence presented at trial, and focus on the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution]. [Ibid. (quotation and citation omitted).]
Once such a foundation has been established, the State may "ask the expert to express an opinion on whether, based on those facts, the drugs were possessed for distribution purposes or personal use." State v. Reeds, 197 N.J. 280, 293 (2009). The use of such a factually aligned hypothetical has recently been confirmed as permissible in this connection. State v. McLean, ___ N.J. ___ (slip op. at 13-15); Reeds, supra, 197 N.J. at 293; State v. Nesbitt, 185 N.J. 504, 511-12 (2006); Summers II, supra, 176 N.J. at 314-15.
Detective Holloway's testimony largely concerned the quantity of narcotics found in defendant's possession, their packaging, the area in which the transaction occurred, a dealer's method for avoiding detection and what inferences should likely be drawn from those facts. The thrust of Detective Holloway's expert opinion was that someone possessing 751 packets of heroin bundled in ten packs, with each pack containing five decks, was most likely intending to distribute the narcotics for monetary gain and rather than obtain the drugs for personal use.
We are unconvinced by defendant's argument suggesting the State's presentation deviated from the permitted use of such a narcotics expert. When eliciting Detective Holloway's opinion, the State employed a mirror-image hypothetical as permitted by Odom and Detective Holloway's testimony fell within the bounds that the Court has recognized as proper expert opinion. The nature of Detective Holloway's responses were confined to the hypothetical facts. Summers II, 176 N.J. at 314 (citing Odom, supra, 116 N.J. at 81); see also State v. Nesbitt, 185 N.J. 504, 507 (2006) ("[T]he State [is permitted] to ask a narcotics expert a hypothetical question mirroring the facts of the case, even though the hypothetical may be 'expressed in terms of ultimate issues of fact.'") (quoting Odom, supra, 116 N.J. at81).
At no time in this matter was the testimony connected to defendant and Detective Holloway never used defendant's name. Unlike Reeds, supra, there was no improper mention that the hypothetical party "constructively possessed" drugs. 197 N.J. at 284-85. Here, Detective Holloway offered no legal conclusions and made no explicit statement of either defendant's guilt; those matters were argued only by the prosecutor.
4. Defendant's motivation in returning the package to co-defendant Binbow was at issue. Lieutenant Minovich and the other police witnesses expressed that defendant returned the package after he spotted the police officers driving up the street. During re-direct, Detective Holloway was asked whether he had been recognized as a police officer while traveling in an unmarked car. Over defendant's objection, he responded that he had been recognized on "numerous" occasions. Defendant urges reversal, arguing the State's expert was improperly permitted to bolster the credibility of its fact witnesses, instead of allowing the jury to decide based upon reasonable inferences drawn from the facts. We find no abuse of discretion occurred, as a trial court enjoys wide discretion in its role as "gatekeeper for the admission or exclusion of evidence." State v. Rosales, 202 N.J. 549, 562 (2010).
The State's question asked on redirect was in response to cross-examination seeking Detective Holloway's acknowledgement that the police were unrecognizable as they were driving unmarked vehicles. In overruling the objection, the court permitted "limited inquiry" on the issue. Detective Holloway's response, that an unmarked car did not successfully hinder recognition that he was a police officer, neither commented on defendant's state of mind nor related his own experience in the field to the facts of this case. Moreover, on re-cross, defense counsel countered by securing detective Holloway's admission that there were also numerous times his identity as a police officer was not discovered.
We also note the court thoroughly instructed the jury regarding the expert's opinion. State v. Berry, 140 N.J. 280, 300-01 (1995). The trial judge stated:
Ladies and gentlemen, you are not bound by such expert's opinion, but you should consider the opinion and give it the weight to which you deem it is entitled . . . or you may reject it . . . . It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exists.
The value or weight of the opinion of the expert is dependent upon and is no stronger than the facts on which it is based. In other words, the probative value of the opinion will depend upon whether from all the evidence in the case you find that those facts are true.
We have no doubt the jury understood its role in weighing the testimony. We detect no error which was clearly capable of producing an unjust result. R. 2:10-2.
C. In Point Nine, defendant's challenge relates to the State's failure to disclose that Lieutenant Minovich and Sergeant Costa may have been the subject of an Essex County Prosecutor's Office investigation in an unrelated matter "into whether or not they had beaten a [suspect] to death." Prior to trial, co-defendant's counsel requested "[a]ny and all internal affairs complaints/investigations involving any of the law enforcement officers involved in this matter." None was provided. At sentencing, defendant presented a newspaper article discussing a civil claim of excessive violence against the officers stemming from the two-year old incident. Defendant requested an in camera review of police files to determine whether they contained material information. The trial judge declined the request, stating defendant did not have the right to review personnel records absent some arguable basis for the court's in camera review, but if an internal affairs investigation was discovered, the court would conduct an in camera examination.
Defendant argues the State's omission prior to trial amounted to a Brady*fn4 violation, because any evidence that negatively impacted "a State's witness's credibility is 'exculpatory evidence,' which the State is bound to disclose." In the alternative, defendant asks that we remand the matter to the trial court for an in camera review of the pertinent records.
The evaluation of "whether police personnel records should be disclosed" as evidence of an arresting police officer's prior bad acts "involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant's guarantee of cross-examination under the Confrontation Clause" of the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the New Jersey Constitution. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998) (citation omitted). A criminal defendant "'must be afforded the opportunity through effective cross-examination to show bias on the part of adverse state witnesses.'" State v. Williams, 403 N.J. Super. 39, 49-50 (App. Div. 2008) (quoting State v. Sugar, 100 N.J. 214, 230 (1985)), aff'd as modified, 197 N.J. 538 (2009). "Courts have permitted the disclosure of police personnel records where they may reveal prior bad acts that bear 'peculiar relevance' to the issues at trial." Harris, supra, 316 N.J. Super. at 398. For example, courts "allow either direct or in camera inspection of police personnel records when the defense claims the officer was the aggressor and the court finds that parts of the officer's personnel history may be relevant to the officer's credibility or to the defendant's claim of self-defense." Ibid.
"In order to establish a Brady violation the defense must demonstrate that (1) the prosecution failed to disclose the evidence; (2) the evidence was of a favorable character for the defense; and (3) the evidence was material." Id. at 311. Because the kinds of evidence that can be considered favorable to a defendant varies greatly, the standard of materiality for determining whether a Brady violation is established also varies depending on whether counsel requested the disclosure of specific evidence. Carter, supra, 85 N.J. at 311-12. Where the defense has made only a general request prior to trial, the burden is on the defense to show "the omitted evidence creates a reasonable doubt that did not otherwise exist." Id. at 312 (internal quotation and citation omitted).
In this matter, defendant made no discovery request prior to trial and after learning of the information failed to file a motion for a new trial. The pre-sentence request for an in camera review of the officers' respective personnel files was denied because defendant failed to shoulder "his burden of advancing some factual predicate that would make it reasonably likely that the information in the file could affect the detectives' credibility[.]" Harris, supra, 316 N.J. Super. at 399. He provided no basis to discern whether the records sought "revealed possible biases, prejudices, or ulterior motives" or otherwise had a "peculiar relevance" to defendant's case. Harris, supra, 316 N.J. Super. at 397 (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974)). Also there is no support for the proposition that the evidence, had it been disclosed, would have contributed to a different verdict. State v. Reddish, 181 N.J. 553, 639-40 (2004).
We conclude the court's denial of defendant's request did not rise to an abuse of discretion. Bayer v. Twp. of Union, 414 N.J. Super. 238, 272-73 (App. Div. 2010); Young v. Hobart West Group, 385 N.J. Super. 448, 469 (App. Div. 2005).
D. Defendant maintains that even if no single error is sufficient to overturn his convictions, the cumulative effect of all claimed errors deprived him a fair trial. We disagree and quote the Court's comments in State v. Wakefield,The standard for review of a trial is neither as stringent nor as unforgiving as defendant asserts. We repeatedly have made clear that [t]he proper and rational standard [for the review of claimed trial errors] is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one. [190 N.J. 397, 537 (2007) (quoting State v. R.B., 183 N.J. 308, 333-34 (2005) (internal quotation marks and citations omitted)).]
Our scrutiny of the record results in a conclusion that defendant's trial was fair and no reversal is warranted.
E. Finally, defendant seeks review of his sentence, claiming it was excessive. Specifically, he urges that the maximum term of parole ineligibility was inappropriate given his base custodial sentence. We determine this claim is without merit.
At sentencing, the State moved for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f), due to defendant's past criminal history, which was granted. In fixing the term, the trial court found applicable: aggravating factor three, risk of recidivism, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior record and the seriousness of the crimes he has committed, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). Additionally, the court found mitigating factor eleven applied because defendant's incarceration would cause hardship to his dependents. N.J.S.A. 2C:44-1(b)(11). After merger, defendant was sentenced to an aggregate extended term of sixteen years with an eight-year period of parole ineligibility.
Here, the extended term range for a second-degree crime was between ten and twenty years. N.J.S.A. 2C:43-7(a)(3). The trial court's imposition of a sixteen-year term was within statutory limits.
Further, the court was entitled to impose a period of parole ineligibility of "between one-third and one-half of the sentence imposed." N.J.S.A. 2C:43-7(c). Because the sixteen- year sentence imposed is "near the top" of the base range, the trial court did not abuse its discretion in also imposing the maximum term of parole ineligibility. See State v. Kirk, 145 N.J. 159, 178 (1996). When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . ., they need fear no second-guessing." State v. Roth, 95 N.J. 334, 365 (1984).
III.Following our review of the record, we discern no basis to interfere with defendant's conviction or alter the sentence imposed.