June 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT D. FREDERICK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-04-0769 and 06-10-1774.
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 21, 2011 - Decided:
Before Judges Grall, C.L. Miniman and LeWinn.
Defendant Lamont D. Frederick appeals from a final judgment of conviction for third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession with intent to distribute cocaine within 1000 feet of a school zone, contrary to N.J.S.A. 2C:35-7; third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5a(1), -5b(3); and third-degree distribution of cocaine within a school zone, contrary to N.J.S.A. 2C:35-7. After denying defendant's motion for a new trial, the judge sentenced him to an extended term of ten years imprisonment for possession of cocaine with intent to distribute within 1000 feet of a school, five years of which were to be served without eligibility for parole. An identical sentence was imposed on the conviction for distribution of cocaine within 1000 feet of a school, both sentences to be served concurrently. The remaining charges were merged for sentencing purposes with the school-zone offenses. We affirm.
On January 29, 2008, six officers from the Jersey City Police Department's Narcotics Unit were conducting surveillance in the area of Carteret and Ocean Avenues, known by them to be an open-area drug market. At 7:40 p.m., Officer Michael Burgess arrived in an unmarked vehicle and parked a few feet east of a particular address. Four of the other officers were in perimeter units to stop, investigate, arrest, and recover any drugs.
Five minutes later, Burgess saw a black female, later identified as co-defendant Kim Taylor, approach a black male who was standing across the street from Burgess; they engaged in a brief conversation. The black male then reached into a brown paper bag, extracted a clear plastic bag, removed an object from the clear plastic bag, and handed it to Taylor in exchange for paper currency. Taylor then walked north on Ocean Avenue and was stopped by a perimeter unit and arrested. One green-capped vial of suspected cocaine was found in her possession.
As Taylor's arrest was being effected, Burgess observed the black male cross the street while counting money and enter a building near which Burgess was parked. That building had twenty to twenty-five rooms and was a "dilapidated run-down boarding house" where Burgess had previously made drug-related arrests and drug investigations. Burgess waited until defendant left the building around 8:40 p.m. Burgess notified the perimeter units, and the four officers responded to the scene. As one of them approached defendant, Burgess saw defendant toss a brown bag to the ground. The approaching officer immediately retrieved the bag, looked inside, and found a clear plastic Ziploc bag containing numerous clear, glass vials with green tops; the vials contained suspected cocaine. Those vials matched the vial of cocaine seized from Taylor. Defendant was then arrested. He did not dispute at trial that the drugs were in fact cocaine and that he was arrested within a school zone. After the jury asked to be recharged on intent, it returned a verdict of guilty on all counts. This appeal followed.
Defendant raises the following issues on appeal:
POINT I - POLICE TESTIMONY THAT THE "DILAPIDATED RUN-DOWN BOARDING [HOUSE]" WHERE DEFENDANT ENTERED WAS [THE] SUBJECT OF PRIOR "DRUG[-]RELATED ARRESTS, DRUG INVESTIGATIONS" AND POLICE REFERENCES TO THE "HIGH NARCOTICS AREA," WERE IRRELEVANT AND UNDULY PREJUDICIAL "GUILT BY ASSOCIATION" EVIDENCE REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (Not Raised Below)
POINT II - SINCE THE TRIAL COURT RESPONDED TO THE JURY FOREPERSON'S QUESTION WITHOUT THE INPUT OF DEFENSE COUNSEL, DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT III - THE AGGREGATE MAXIMUM EXTENDED TERM OF [TEN] YEARS OF IMPRISONMENT WITH FIVE-YEAR PAROLE BARS FOR THE TWO THIRD[-]
DEGREE SCHOOL[-]ZONE CHARGES WAS EXCESSIVE.
Where a litigant fails to object to testimony presented during the course of the trial, the scope of our review is limited to searching for plain error. State v. Williams, 168 N.J. 323, 335 (2001) (citing R. 1:7-2). Under that standard, a defendant must demonstrate that the erroneous admission of evidence "possessed a clear capacity for producing an unjust result." State v. Melvin, 65 N.J. 1, 18 (1974); accord R. 2:10-2. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Williams, supra, 168 N.J. at 336 (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Absent the possibility of an unjust result, we may not reverse based on the error alone. R. 2:10-2; Macon, supra, 57 N.J. at 335-37.
Defendant urges that the testimony about a "dilapidated run-down boarding house" where prior "[d]rug[-]related arrests [and] drug investigations" occurred and the testimony that defendant was arrested in a "[h]igh[-]narcotics area" were irrelevant and unduly prejudicial. He urges that this constitutes "guilt-by-association" evidence requiring a new trial.
Even were we to agree with defendant's contention that the judge erred in permitting the evidence to go before the jury uncorrected, we are thoroughly satisfied that it did not produce an unjust result. Defendant was observed engaging in a hand-to-hand drug transaction, after which Taylor was arrested with cocaine in her possession. Additionally, when defendant exited from the building in question, he saw the approaching police officer, dropped the brown paper bag containing multiple vials of cocaine identical in appearance to the one in the possession of Taylor, the drugs were immediately recovered, and defendant was immediately arrested. He did not suggest in his defense that he had no connection to the drugs. Thus, defendant was caught red-handed.
The allegedly prejudicial testimony could not possibly have been "capable of producing an unjust result." R. 2:10-2. As such, we find no occasion, in the interests of justice, to notice plain error that was not brought to the attention of the trial court. Ibid.
We are also satisfied that the testimony about "constant citizen complaints of drug activity" in combination with the testimony about a high-narcotics area and the building itself did not violate the precepts of State v. Bankston, 63 N.J. 263, 268 (1973). The testimony was general in nature and merely explained why the police conducted surveillance of the particular neighborhood in question. Furthermore, the officers were not responding to a specific complaint about defendant but only about the narcotics activity in the neighborhood.
Defendant next contends that the judge erred in responding to the jury question asking for the definition of "intent to distribute" without first consulting with counsel; he also claims that the judge incorrectly instructed the jury to consider the quantity and packaging of the drugs. As a consequence, he urges that the judge erred in denying his motion for a new trial.
As we did with the prior issue, we begin with the observation that our scope of review is limited to plain error because defendant's attorney did not object to the judge answering the question without consulting with counsel and did not object to the reinstruction the judge gave on the issue of intent. Williams, supra, 168 N.J. at 335.
We certainly agree that the judge was required to consult with counsel in formulating an answer to the jury's question. See State v. Whittaker, 326 N.J. Super 252, 262 (App. Div. 1999) ("Certainly counsel must be consulted before the trial court responds to a question from the jury." (citing State v. Graham, 285 N.J. Super. 337 (App. Div. 1995)).
Although the lack of consultation was error, we are satisfied that it did not produce an unjust result because the rein-struction on intent, considered as a whole, was adequate to convey the concepts the jury needed to apply to the facts. This is so because the concept of intent to distribute necessarily involves a quantity and packaging of drugs sufficient to justify a conclusion that they were not possessed for personal use. See State v. Odom, 116 N.J. 65, 78-79 (1989) (finding that an expert may give an opinion "based exclusively on the surrounding facts relating to the quantity and packaging of the drugs and their addictive quality, as well as the absence of drug-use paraphernalia," and may opine "that possession of these drugs was for the purpose of distribution"). That concept was adequately conveyed by the reinstruction given by the judge. As a consequence, there was no basis for a new trial as the alleged errors in issue could not possibly have led to an unjust result, especially in light of the overwhelming evidence of guilt.
Last, defendant contends that his sentence was clearly excessive. However, he was sentenced to an extended term as a persistent drug offender, and the judge found aggravating factors 3, 6, and 9.*fn1 Those aggravating factors were supported by sufficient, credible evidence in the record and the judge did not violate the sentencing guidelines. State v. Roth, 95 N.J. 334, 365-66 (1984). Because the sentence was not "clearly mistaken," we find no occasion to modify it or remand for resentencing. State v. Jabbour, 118 N.J. 1, 6 (1990) (internal quotation marks omitted).