July 20, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY MCCLARY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 08-07-1336.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Wefing and Payne.
Tried to a jury, defendant was convicted of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), a crime of the third degree; possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), 5b(3), a crime of the third degree; possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7, a crime of the third degree; and possession of a controlled dangerous substance with intent to distribute within five hundred feet of a public facility, N.J.S.A. 2C:35-7.1, a crime of the second degree.*fn1 At sentencing, after granting the State's motion for an extended term, the trial court merged the first two convictions into the third and sentenced defendant to two concurrent terms of eight years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence.
He raises the following contentions on appeal:
POINT I DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, AS THE TERRY STOP WAS NOT BASED ON AN OBJECTIVELY REASONABLE SUSPICION THAT DEFENDANT WAS ARMED AND DANGEROUS POINT II BECAUSE THERE WAS NO PROOF THAT DEFENDANT POSSESSED THE DRUGS WITHIN THE SCHOOL AND HOUSING ZONES, HIS MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED POINT III BECAUSE THE PROSECUTOR'S COMMENT DURING SUMMATION IMPROPERLY ALLUDED TO DEFENDANT'S DECISION NOT TO TESTIFY, HIS MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED POINT IV THE COURT BELOW ERRED BY FAILING TO MERGE DEFENDANT'S SCHOOL ZONE CONVICTION WITH THE PUBLIC HOUSING CONVICTION AND BY IMPOSING FEES AND PENALTIES ON CONVICTIONS THAT MERGED POINT V DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
On the night of April 8, 2008, Officer Steven Collier of the Jersey City Police Department was on patrol with his partner, Officer Cartihana. They were in plain clothes and driving an unmarked vehicle. They saw an older car pull out at a high rate of speed from the Duncan Avenue housing complex on Duncan Avenue and turn south onto Route 1 and 9. They intended to pull the car over based upon the speed at which it left the housing complex, but there was no safe place to do so on Routes 1 and 9 so they followed the car. Officer Collier radioed in the car's license plate number; there was no report of the vehicle being stolen. When the car reached the intersection with Communipaw Avenue, it made an illegal left turn onto Communipaw. Because of construction activity in the area, again there was no safe place to pull the car over. The car then turned onto Mallory Avenue, which Officer Collier described as being inadequately lit. When the car turned onto Claremont Avenue where the lighting was better, the officers turned on the lights of their vehicle, signaling the car to stop, which it did. As Office Collier got out of his car, he saw the rear-seat passenger, later identified as defendant, move as if to put something in his pocket or underneath him.
Officer Collier approached the car on the driver's side, Officer Cartihana on the passenger side. There were three occupants in the car, the driver, a front-seat passenger, and defendant sitting in the rear. As Officer Collier was speaking to the driver, and reviewing the paperwork the driver produced, he again saw the rear seat passenger make a movement with his left hand. Asked what was going through his mind when he saw this, Officer Collier responded, "He's trying to conceal something and possibly a weapon. . . . For my safety as well as his safety and everybody involved we were afraid it was going to be a weapon."
Officer Collier ordered defendant out of the car and patted him down. Officer Collier felt a bulge in the front pocket of the hoodie defendant was wearing and asked defendant if he had a weapon. Defendant said he did not, that it was drugs. He produced a plastic baggie with approximately fifty vials containing cocaine.
Prior to defendant's trial getting under way, he filed a motion to suppress, at which Officer Collier was the only witness. After hearing the officer testify, and the argument of counsel, the trial court denied defendant's motion. On appeal, defendant argues the trial court's decision was in error. We disagree.
Both parties analyze the issue in terms of whether Officer
Collier's actions were permissible within the framework of Terry
v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968), which upheld the right of an officer to stop and frisk an individual if the officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest . . . ." This belief cannot rest on an officer's subjective hunch but must be based on "specific and articulable facts" that the individual may possess a weapon and thus pose a risk of danger. Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.
Defendant rests his argument in large part on State v. Lund, 119 N.J. 35 (1990), in which the Court held that furtive movements by a car's driver while responding to a trooper's directive to pull over did not justify a search of the interior of the vehicle, during which a large quantity of cocaine was discovered. We consider Lund distinguishable. In Lund, the Court was dealing with the propriety of the search of the interior of the vehicle. Here, we are not confronted with that question but, rather, the propriety of Officer Collier conducting a pat-down of defendant. In Lund, the trooper did pat down both the driver and his passenger and found nothing, an action clearly deemed unremarkable by the Court because it prompted no comment. Id. at 42.
We consider this matter to be much closer to State v. Roach, 172 N.J. 19 (2002). In that matter, a police officer followed a vehicle into an apartment's parking lot after he noticed two anomalies, and the vehicle did not respond to his signals to stop. Id. at 22-23. The driver could not produce a license, appeared extremely nervous, had an odor of alcohol, and was unable to recite the alphabet. Id. at 23. This latter led the officer to call for the DWI officer on duty to respond to the scene. Ibid. When that officer arrived, the two returned to the car. They again smelled alcohol, and the defendant admitted he had had a couple of beers. Id. at 24. The DWI officer noted what appeared to be a fresh blood stain on the defendant's shirt and asked if he needed medical assistance; as defendant lifted his arm to look at the stain, the officer saw a bulge in the defendant's pants, with a trace of a plastic bag protruding. Ibid. The officer asked what was in his pants, and the defendant immediately reached toward the bulge; the officer grabbed his hand, and the defendant tried to reach the bulge with his other hand, and the officer grabbed that hand and called for the first officer to help him. Ibid. That officer saw the bulge and the plastic, patted the bulge and then reached in and retrieved a plastic bag containing cocaine and heroin. Id. at 25. The trial court denied the defendant's motion to suppress, and this court reversed, finding that the officer stepped over the line in retrieving the plastic bag. Id. at 25-26. The Supreme Court, however, reversed. Writing for the Court, Justice Long summarized the principles underlying a Terry frisk.
The protective search exception to the warrant requirement was created to protect an officer's safety where there is reason to believe that a suspect is armed and dangerous. . . . Specifically, the officer may conduct a carefully limited search of the outer clothing in an attempt to discover weapons which might be used to assault him. . . . [I]n order to conduct a protective search, an officer must have a specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous. The existence of an objectively reasonable suspicion is based on the totality of the circumstances. . . . Oftentimes law-enforcement officers must make instantaneous decisions about whether a frisk for weapons is justifiable. The task is an unenviable one often fraught with life-and-death-consequences. Courts should not set the test of sufficient suspicion too high when the protection of the investigating officer is at stake. . . .
[T]he officer's safety is paramount and . . . the officer is justified in taking further steps if necessary to protect his safety. [Roach, supra, 172 N.J. at 27-28 (citations omitted).]
Here, Officer Collier was dealing with a late-night stop of a vehicle that he had observed make two questionable actions: a high-speed departure and an illegal turn. While he admitted the driver was cooperative, he observed defendant make two motions, one as he approached the car and the other as he spoke with the driver, the significance of which he was not able to determine with certainty. He had in the past had the experience of people grabbing for a pocket that turned out to contain a weapon. These objective facts supported a reasonable concern on his part that defendant could have a weapon secreted in the pocket of his hoodie. We see no error in the trial court's denial of defendant's motion to suppress.
Defendant filed a motion for acquittal, arguing there was no proof that defendant possessed the narcotics within one thousand feet of school property or five hundred feet of a public facility. During defendant's trial, the State introduced a map to establish that the point at which the officers observed this car pulling out of the Duncan Avenue housing complex was within one thousand feet of a school; clearly it was within the five hundred foot zone of N.J.S.A. 2C:35-7.1. Officer Collier admitted during cross-examination that the site on Claremont Avenue where he signaled the car to pull over was not within one thousand feet of a school. The trial court denied defendant's motion, and defendant contends that was error. Again, we disagree.
On a motion for acquittal, the State is entitled to the benefit of all favorable testimony and the reasonable inferences that can be drawn from that testimony. State v. Reyes, 50 N.J. 454, 458-59 (1967). There was no evidence that the car made any stops from the time Officer Collier and his partner observed it pulling out from the Duncan Avenue complex until they pulled it over on Claremont Avenue. Nor was there any evidence that the occupants of the car passed anything among themselves during that time. A defendant may be found guilty of possessing narcotics with the intent to distribute in a school zone by merely passing through the zone in possession of narcotics with the intent to distribute them at some point in the future. State v. Ivory, 124 N.J. 582, 592 (1991). The trial court correctly denied defendant's motion.
During the course of closing arguments, the prosecutor made the following remarks:
What matters is if you find beyond a reasonable doubt that at some point the drugs were in his possession and he was within 1,000 feet of a school and 500 feet of a public housing complex it doesn't matter that he was arrested outside of that area, as long as he had the drugs at the time he was within the 1,000 foot and the 500 foot. And I submit to you there hasn't been any testimony that he wasn't in possession of those drugs when the car left the housing complex driveway. Nobody said anybody was casting anything back and forth, the driver -- I'm sorry, no -- the passenger didn't say he ever saw the drugs. So where were they? They were in the back with this defendant.
Defendant made no objection at the time but later moved for a new trial, contending that these remarks were an improper allusion to defendant's decision not to testify. He contends on appeal that the trial court erred when it denied this motion. We see no error.
In summation, a prosecutor may "make vigorous and forceful closing arguments to juries" based on the evidence and all reasonable inferences. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Further, a prosecutor may rebut in summation a specific argument proffered by defendant's attorney. State v. Mahoney, 188 N.J. 359, 376-77 (2006). The absence of an objection at the time the remarks are made "suggests that defense counsel did not believe the remarks were prejudicial. . . ." State v. Frost, 158 N.J. 76, 84 (1999).
Here, the prosecutor's remarks, seen in context, were a response to the arguments of defense counsel that there was no proof that defendant possessed these drugs in a school zone and that at the time of the arrest, defendant was not in a school zone or within five hundred feet of a public facility. Further, the trial court clearly told the jury in its final instructions that the State had the burden of proving each element of each offense beyond a reasonable doubt, that defendant was under no obligation to offer any evidence and that the fact that defendant chose not to testify "should not enter into your deliberations or discussions in any manner at any time."
Defendant's last two argument relate to his sentence. The State agrees that the trial court erred when it failed to merge defendant's conviction for possession with intent in a school zone into his conviction for possession with intent within five hundred feet of a public facility. State v. Parker, 335 N.J. Super. 415, 420 (App. Div. 2000). Accordingly, defendant must be resentenced.
We disagree, however, that defendant's custodial term of eight years, with a four-year parole bar, was manifestly excessive. Defendant had seventeen prior indictable convictions. He was subject both to a mandatory extended term under N.J.S.A. 2C:43-6f and a discretionary extended term under N.J.S.A. 2C:44-3a. Even in the face of that, the trial court settled on a sentence only slightly above the mid-range.
Defendant's convictions are affirmed, and the matter is remanded to the trial court for resentencing.