July 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IBN WARREN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2011
Before Judges Simonelli and Fasciale.
Following a jury trial, defendant was convicted of second-degree conspiracy to violate narcotics law, N.J.S.A. 2C:5-2 (count one); two counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts two and five); third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5a(1), -5b(3) (count six); second-degree possession of CDS with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1a (count seven); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1), b(3) (count eight); and second-degree distribution of CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count nine).*fn1
The trial judge sentenced defendant to an eight-year term of imprisonment with four years of parole ineligibility on count one, to a concurrent four years on counts two, five, six and eight, and to a concurrent eight years with four years of parole ineligibility on counts seven and nine. The judge also imposed the appropriate assessments, penalties, and fees.
On appeal, defendant raises the following contentions:
POINT I THE TRIAL COURT ERRED IN FAILING TO TAKE ANY ACTION TO REMEDY THE PREJUDICE TO THE DEFENDANT WHICH RESULTED FROM THE STATE'S FAILURE TO TIMELY PROVIDE DISCOVERY TO THE DEFENSE POINTIITHE TRIAL COURT ERRED IN DENYING TRIAL COUNSEL'S REQUEST FOR A BRIEF ADJOURNMENT OF THE COMMENCEMENT OF THE TRIAL POINT IIITHE TRIAL COURT ERRED BY PERMITTING THE STATE'S POLICE WITNESS TO TESTIFY THAT HE WAS CONDUCTING SURVEILLANCE PURSUANT TO A TIP POINT IVTHE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTALPOINT VPROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED MR. WARREN OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VITHE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE ON A JURY PANEL THAT HAD REACHED AN ADVANCED STAGE OF DELIBERATIONS (NOT RAISED BELOW) POINT VIICUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VIIITHE TRIAL COURT ERRED BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE (NOT RAISED BELOW)
I.We derive the following facts from the evidence presented at trial. According to Officer/Detective Freddie Townes of the City of East Orange Police Department,*fn2 the police received a "tip" or complaint from citizens about narcotics activity occurring at a parking lot located at 17th Street and Fourth Avenue in East Orange, which was within 500 feet of a public library. On January 17, 2006, at approximately 2:00 p.m., Officer Townes conducted a narcotics surveillance in a parked, unmarked police vehicle across the street from the parking lot. Officer Townes saw four or five African-American males in front of the parking lot, and Al-Amin Means talking to defendant. A red Saturn traveling on Fourth Avenue turned onto 17th Street and stopped at the entrance to the parking lot. Means approached the passenger side of the vehicle and engaged in a brief conversation with the passenger, later identified as Stacey Zakrzewski. Zakrzewski handed paper currency to Means, who then walked over to defendant and handed defendant the money. Defendant placed the money in his pocket, looked up and down 17th Street, and then removed a clear plastic bag containing white objects from his right jacket pocket.
Defendant took the items from the bag and gave them to Means. Means then gave the items to Zakrzewski, who then placed them in her own plastic bag.
Believing he had just witnessed a narcotics transaction, Officer Townes radioed a description of the suspects, the car and license plate to backup units. When backup units arrived, the officer saw defendant take the plastic bag from his pocket and place it inside a hole in the top of a fence pole with a missing fence cap. The officer radioed the backup detectives to retrieve the plastic bag from the fence. In the presence of Detective Kevin Green, Detective Jackson recovered the plastic bag from the hole. The police also recovered ten glassine envelopes containing heroin stamped "King Kong," "Baseball," "Anaconda" and "Fire" from Zakrzewski. The same stamps appeared on the narcotics in the plastic bag Detective Jackson recovered from the fence. The police also found $388 on Means and $267 on defendant.
II.Defendant's counsel requested a copy of the State's narcotics laboratory report more than three months prior to the start of trial. The State, however, did not produce the report until a week before trial, claiming that was when the State received the report. Defendant moved to bar the State's expert chemist from authenticating the narcotics based on the State's failure to timely serve the report. Defendant also moved to bar the admission of the plastic bag containing the narcotics into evidence because defense counsel did not receive the evidence until the morning of the second day of trial.*fn3
The judge denied the motion to bar the expert from testifying, concluding that given defense counsel's ability and expertise, and his ability to cross-examine the expert, defendant was not prejudiced by the State's failure to timely provide the report. The judge did not rule on defendant's motion to bar the plastic bag, but admitted the narcotics into evidence over defense counsel's objection. Defendant contends in Point I that the judge should have granted his motions or, alternatively, granted a brief continuance to permit defense counsel to review the report and examine the drugs.
Rule 3:13-3(b) requires the prosecutor to make discovery available within fourteen days of the return or unsealing of the indictment. Rule 3:13-3(c)(1) and (5) require the prosecutor to permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):(1) books, tangible objects, papers, or documents obtained from or belonging to the defendant;. . . .(5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor[.][R. 3:13-3(c)(1), (5).]
Rule 3:13-3(c)(9) requires the prosecutor to furnish an expert's report thirty days in advance of trial. When a defendant challenges the prosecutor's failure to comply with these rules, the court may "grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g).
"The decision on whether to bar an expert's testimony . . . is left to the trial court's discretion." State v. LaBrutto, 114 N.J. 187, 205 (1989); see also R. 3:13-3(g). "Factors that should result in permitting the expert to testify include '(1) the absence of any design to mislead, (2) the absence of the element of surprise if the evidence is admitted and (3) the absence of prejudice which would result from the admission of evidence.'" LaBrutto, supra, 114 N.J. at 205 (quoting Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985)).
Furnishing the report on which the expert would rely to authenticate the narcotics a week before trial clearly contravenes Rule 3:13-3(c)(9). We do not condone such conduct. However, there is no evidence the State intentionally withheld the report from defendant or that the chemist's testimony unfairly surprised or prejudiced the defense. Cf. State v. Zola, 112 N.J. 384, 418 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989) (indicating that although "the State could not ignore its continuing duty to disclose," because "the State did not intentionally conceal [the] information from [the] defendant" and because there was no unfair surprise or prejudice to defendant, there was no misconduct). Defense counsel had the report in his possession a week prior to trial, and thus, knew what the expert would say about the narcotics found in the fence. Defendant does not contend he intended to retain an expert to counter that testimony.
In sum, the prosecutor's conduct was not so egregious as to "amount to a breach of the rules of fair play." Id. at 419 (citing State v. Laganella, 144 N.J. Super. 268, 282 (App. Div.), appeal dismissed, 74 N.J. 256 (1976)). Consequently, the judge did not abuse his discretion in permitting the State's expert to testify. See LaBrutto, supra, 114 N.J. at 205.
We also discern no error relating to the admission of the plastic bag containing the narcotics. Defendant does not demonstrate that he requested, and the prosecution failed to permit him, to inspect the bag at an earlier date, as required of the prosecutor by Rule 3:13-3(c). Nor does defendant otherwise establish how permitting him to inspect the plastic bag on the morning of the second day of trial constitutes a failure to comply with Rule 3:13-3(c). To the contrary, defense counsel was afforded the opportunity to inspect the narcotics bag but he never availed himself of that opportunity.
Moreover, defendant has not shown how an earlier opportunity to examine the report and plastic bag was necessary to defense counsel's preparation and presentment of defendant's defense. Accordingly, there was no abuse of discretion in the admission of the plastic bag containing the narcotics.
III.On the first day of trial, the judge denied defense counsel's prior request for an adjournment. Counsel sought an adjournment for several reasons, including his busy schedule. In denying counsel's request, the judge concluded that, based on defense counsel's ability and experience, defendant would not be denied a fair trial by the lack of an adjournment. Defendant essentially contends in Point II that the judge erred in denying the adjournment request.
A motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury. See State v. Lamb, 125 N.J. Super. 209, 213 (App. Div. 1973) (indicating that "[t]he granting of a continuance is a matter exclusively within the province and sound discretion of the trial judge, and should not be upset unless it appears from the record that the defendant suffered manifest wrong or injury.")
Defendant has not demonstrated that the denial of an adjournment resulted in a manifest wrong or injury. The evidence in this case consisted of only three State witnesses, who defense counsel had the opportunity to cross-examine. There is no support for defendant's bald assertion that counsel's lack of preparation resulted in defendant's convictions on almost all of the counts. Accordingly, there was no abuse of discretion in the denial of the adjournment request.
IV.Defendant contends in Point III that the judge erred by permitting Officers Townes and Greene to testify that the police were conducting surveillance pursuant to a tip. Defendant argues this testimony violated his Sixth Amendment*fn4 and New Jersey's constitutional*fn5 right of confrontation.
"It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (citation omitted). "Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct." State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975) (citing Bankston, supra, 63 N.J. at 268), certif. denied, 70 N.J. 143 (1976). No error occurs as long as the testifying police officer "did not directly or by necessary inference implicate defendant" and "[t]he information to which [the officer] testified only dealt in general terms [as to where people were selling narcotics]." Id. at 134. "However, 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." Bankston, supra, 63 N.J. at 268 (emphasis added).
Unlike in Bankston and like the police officers in Long, Officers Townes and Greene only made a general statement about why they went to the scene of the reported narcotics activity. They did not testify that the unknown citizen specifically mentioned, identified, described or otherwise implicated defendant in the narcotics activity. Compare Bankston, supra, 63 N.J. at 266-67 (officer testified that the police received a tip that described a particular person who possessed narcotics, and he identified defendant as the person who the police were looking for) with Long, supra, 137 N.J. Super. at 134 (where the officer only testified in general terms). The testimony of Officers Townes and Greene, therefore, could not lead to any inference of defendant's guilt. Accordingly, no error occurred in permitting them to testify that the police went to the scene of the reported narcotics activity pursuant to a tip.
V.Defendant contends in Point IV that the judge erred in denying defendant's motion for judgment of acquittal at the close of the State's case. The judge denied that motion, concluding the evidence was sufficient for a reasonable jury to find defendant guilty on all counts. We agree.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine 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. [State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).] See also R. 3:18-1; State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 80-81 (2002).
Under Rule 3:18-1, "the court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (citation omitted). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236.
A person is guilty of possession of CDS if he knowingly or purposely, obtains or possesses CDS, "actually or constructively." N.J.S.A. 2C:35-10a(1). A person is guilty of possession of CDS with intent to distribute if he possesses or has CDS under his control with intent to distribute. N.J.S.A. 2C:35-5a(1). A person is guilty of possession with intent to distribute CDS within 500 feet of public property if he possesses CDS with intent to distribute "while in, on or within 500 feet of real property comprising a public housing facility, a public park, or a public building . . . ." N.J.S.A. 2C:35-7.1a. A person is guilty of conspiracy to possess and conspiracy to possess CDS with intent to distribute if "with the purpose of promoting or facilitating its commission he . . .[a]grees with [another to] . . . engage in conduct which constitutes such crime . . .; or . . . [a]grees to aid such other person . . . in the planning or commission of such crime . . . ."N.J.S.A. 2C:5-2a(1)-(2).
Defendant engaged in an open-air narcotics transaction with co-defendant Mean's assistance within 500 feet of a public library. Officer Townes witnessed this activity. The plastic bag seized from the fence post where defendant stashed it contained cocaine and heroin and the same stamps as the glassine envelopes found on co-defendant Zakrzewski, the purchaser. We are satisfied that this evidence, viewed in its entirety and giving the State all favorable inferences therefrom, was more than sufficient to allow a reasonable jury to find defendant guilty of all of the above crimes beyond a reasonable doubt.
VI. Defendant contends for the first time on appeal in Point V that the prosecutor's improper summation comments deprived defendant of a fair trial. Defendant argues the prosecutor referred to facts not in the record and made comments about his personal knowledge of the police procedures used in this case that, in essence, vouched for Officer Townes' credibility. Defendant also contends for the first time on appeal in Point VI, that the judge erred in substituting an alternate juror after the jury reached an advanced stage of deliberations.
We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
Our review of the prosecutor's summation satisfies us that his comments about the facts reasonably related to the evidence presented at trial and the reasonable inferences drawn therefrom, see State v. Smith, 167 N.J. 158, 178 (2001); State v. Frost, 158 N.J. 76, 82 (1999), or were proper responses to defense counsel's attack on Officer Townes' credibility, State v. Munoz, 340 N.J. Super. 204, 216 (App Div.), certif. denied sub nom, State v. Pantoja, 169 N.J. 610 (2001); Johnson, supra, 287 N.J. Super. at 266. The prosecutor's comments on summation were not improper.
The State presented its entire case, summations occurred, and the judge instructed the jury on October 6, 2009. The jury deliberated approximately forty minutes and was excused for the day. One juror did not return the next day due to an illness. The judge excused the ill juror and substituted him with an alternate and instructed the reconstituted jury to begin their deliberations anew, which they did. The reconstituted jury then deliberated for over three hours before reaching a verdict. We are satisfied that no error, let alone plain error, occurred in the juror substitution.
VII.Defendant also challenges his sentence. He argues that the record did not support the judge's findings of aggravating factors, and the judge erred in failing to find one mitigating factor. We disagree.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, the appellate court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
The judge properly found and applied aggravating factors N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense") and N.J.S.A. 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"). Defendant has fourteen juvenile complaints resulting in two adjudications, including one for possession of CDS under N.J.S.A. 2C:35-10a(1) for which he was placed in a youth detention center and placed on probation for two years. Approximately a year thereafter, defendant was charged with four drug-related counts, tried as an adult, and again placed in a youth detention center. As an adult, defendant has two disorderly persons convictions, and eighteen adult arrests resulting in two prior indictable drug-related convictions, making the present matter his third indictable conviction. Defendant's long history of committing crimes indicates he is likely to commit another offense. General deterrence is always appropriate, and here, the less common need for specific deterrence is especially strong.
The record does not support a finding of mitigating factor N.J.S.A. 2C:44-1b(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents"). Although defendant has a child, he does not pay support and is not the child's primary caretaker. Cf. State v. Dalziel, 182 N.J. 494, 505 (2005) (holding that "because [defendant] has never . . . supported his fiancee and child, his incarceration could not constitute an excessive hardship on them").
Defendant also contends that the judge erred in failing to merge count six (third-degree possession with intent to distribute CDS) with count seven (second-degree possession of CDS with the intent to distribute within 500 feet of public property), and count five (third-degree possession of CDS) and count eight (third-degree distribution of CDS) with count nine (second-degree distribution of CDS within 500 feet of public property). The State concedes, and we agree, that certain counts should have been merged. Accordingly, we remand for resentencing in accordance with the law.
Affirmed in part, reversed in part, and remanded for resentencing and a correction of the judgment of conviction to reflect the appropriate mergers. We do not retain jurisdiction.