July 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GUILIO MESADIEU A/K/A GUILIO MASADIEU, EMMANUEL MERVALUS, EMMANUEL MERVUILUS, GUILIO MESUDIEU, JASON PIERRE, JOSEPH PIERRE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-0169.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2011
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Following a jury trial, defendant Guilio Mesadieu was convicted of various drug possession and distribution charges based on the State's evidence that police officers observed him engaged in hand-to-hand sales of controlled dangerous substances. Defendant appeals his conviction and the sentence imposed by the trial court, arguing:
THE MOTION COURT ERRED IN DENYING MR. MESADIEU'S SUPPRESSION MOTION BECAUSE POLICE LACKED PROBABLE CAUSE TO ARREST MR. MESADIEU.
THE MOTION COURT ERRED IN RULING THAT THE DEFENSE WAS NOT ENTITLED TO DISCOVER VITAL INFORMATION CONCERNING THE SURVEILLANCE POINT AND IN PRECLUDING THE DEFENSE FROM CROSS-EXAMINING THE STATE'S WITNESS AS TO SAME.
THE TRIAL COURT ERRED IN ALLOWING EXPERT TESTIMONY THAT WAS NOT NECESSARY OR HELPFUL TO THE JURY AND WAS UNDULY PREJUDICIAL TO MR. MESADIEU.
THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF TESTIMONY WHICH CREATED THE INFERENCE THAT MR. MESADIEU HAD PRIOR CRIMINAL CONTACT WITH THE POLICE (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION [OF] TESTIMONY THAT OFFICER DEABREU'S DUTIES WERE TO RESPOND TO NARCOTICS COMPLAINTS (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL BASED ON THE PROSECUTOR'S IMPROPER REFERENCE TO THE FACT THAT MR. MESADIEU WAS REPRESENTED BY THE OFFICE OF THE PUBLIC DEFENDER.
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON CROSS-RACIAL IDENTIFICATION (NOT RAISED BELOW).
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
We have reviewed and considered the arguments presented by the parties in light of the record and applicable law and we affirm.
These facts are taken from the trial record. On November 29, 2006 at approximately 6 p.m., Elizabeth Police Officers Helder Deabreu and Roger Alves were conducting covert surveillance at the corner of Salem Avenue where it meets Pingry Place (the intersection). From their undisclosed location one-hundred yards from the intersection, the officers, who were dressed in plain clothes, used binoculars to enhance visualization, which was also aided by clear weather conditions, existing daylight, and illumination from fixtures on surrounding businesses and parks.
When Officer Deabreu commenced surveillance, he observed two men standing on the street at the intersection who later were identified as defendant and Dwayne Steide.*fn1 The two were approached by a third unidentified male, who handed defendant money. Defendant then walked twenty feet to the front driver's side tire of a grey SUV parked on Pingry Place and retrieved a small, light brown paper bag from which he took a small, clear object. Defendant returned the bag to the ground next to the driver's side tire, walked back to the intersection where the unidentified male and Steide remained, and handed the unidentified male the small, clear object. The unidentified male walked away and defendant and Steide remained at the intersection.
A few minutes later, the officers observed a second unidentified male approach the two at the intersection and hand defendant money. Defendant then walked back toward the same grey SUV, picked up the light brown paper bag, removed a small object, returned the bag to the ground and walked back to the intersection, where the second unidentified male and Steide were standing. Defendant handed the second unidentified male the small object, who accepted it and left the area.
Next, defendant and Steide were approached by a "younger male" who engaged the men in conversation and left. Defendant and Steide "crossed Pingry Place, went to the rear of the laundromat that's at the corner of Pingry and Salem, and [defendant] walked down Pingry to the grey SUV." Upon reaching the SUV, defendant "picked up the light-colored bag and crossed the street from Pingry to the rear lot of the laundromat" where he got into the backseat of a green Ford automobile with Steide at the wheel.
Officer Deabreu called for assistance. Four officers in two police cars arrived on the scene almost immediately and conducted a motor vehicle stop. Officer Brian Turner approached the vehicle driven by Steide. He saw defendant sitting in the backseat holding a brown paper bag. As Officer Turner got closer, defendant placed the bag onto his lap and attempted to cover it with a magazine. He ordered the two men to exit from the vehicle. As defendant stepped out of the Ford, the brown paper bag fell to the ground at his feet, opening to reveal eleven "smaller little plastic bags full of a white powdery substance," determined to be cocaine. Officer Deabreu identified the bag as the same as the one he watched defendant retrieve from under the SUV.
Defendant and Steide were placed under arrest. The search incident to arrest recovered $224 from defendant, made up of seven $20 bills, five $10 bills, five $5 bills, and nine $1 bills.
On March 1, 2007, a Union County grand jury issued Indictment No-07-03-0169-I charging defendant with the third-degree offenses of possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and the second-degree offense of possession of cocaine with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).
During the trial, which commenced on May 20, 2008, Officers Deabreu and Turner testified. Over defendant's objection, the State presented expert testimony from Magaly Meoqui, a detective for the Union County Prosecutor's Office, who discussed the details of police narcotics surveillance and street drug distribution.
Three defense witnesses testified. Scotty Abelard stated that on November 29, 2006, starting at between 4 p.m. and 5 p.m., defendant was in his barbershop, located about one-half block from the intersection, for about two hours. Also, Rosaberthe Mesadieu, defendant's sister, explained she had given her brother $200 on the afternoon of November 29, 2006, to go shopping for his upcoming twenty-fifth birthday. Finally, Edward Addison, a defense investigation expert, measured the distances between the street lights leading up to the intersection to challenge the officer's assurances of clear visibility. The jury found defendant guilty of all counts.
On August 15, 2008, the trial judge denied defendant's motion for a new trial, concluding the jury's verdict was not against the weight of the evidence, and granted the State's motion to impose an extended term sentence. After merging counts one and two into count three, the court sentenced defendant to seven years imprisonment on count three, with a forty-two month period of parole ineligibility and a concurrent seven year term on count four. The court also imposed the required fines and penalties. Defendant filed a timely appeal.
Defendant raises various challenges to the court's denial of pre-trial motions, evidentiary admissions, jury instructions and the denial of the request for a mistrial. He generally challenges the sufficiency of the evidence and argues the cumulative errors warrant a new trial. Finally, defendant attacks his sentence as excessive. In our review we will combine related issues.
Prior to trial, a judge other than the trial judge conducted a suppression hearing denying defendant's challenge that the police lacked probable cause for defendant's arrest. The motion judge determined the seizure was lawful because it was incident to arrest and the drugs were in plain sight. Also, at defendant's request, the motion judge conducted a Crudup*fn2
hearing, concluding the State was not required to release the police surveillance location. Defendant claims the court's rulings were in error.
Defendant argues Officer Deabreu "did not observe him in possession of drugs, much less distributing drugs. All the officer saw was [he] receive[d] money in exchange for a 'light colored item'" that police "presumed to be narcotics." Accordingly, defendant argues the motion judge's "conclusion that probable cause existed based on the presumption of anofficer that [defendant] was selling drugs is untenable." We disagree.
As a threshold matter, in reviewing a motion to suppress, this court must "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007); see also State v. Locurto, 157 N.J. 463, 474 (1999); State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). Moreover, we defer to those findings of the trial judge "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). In our review, we, like the trial judge, must evaluate the totality of circumstances surrounding the encounter between the police officer and the citizen, "balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." State v. Davis, 104 N.J. 490, 504 (1986). In essence, a trial court's findings should be disturbed only if "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 162). See also Locurto, supra, 157 N.J. at 471.
"[E]ncounters with the police in which a person's freedom of movement is restricted, such as an arrest or an investigatory stop or detention, must satisfy acceptable constitutional standards." Elders, supra, 192 N.J. at 246. Prior to arrest, the State must demonstrate probable cause. State v. Stovall, 170 N.J. 346, 356 (2002).
The motion judge articulated the police officer held an "objectively reasonable belief" that he had viewed two drug transactions involving defendant, who he also observed enter the rear of a Ford vehicle. Considering all the facts -- the events occurred in a high crime area, the officer's past experience with illicit narcotics distribution, the police observations of repeated activities involving defendant's interaction with strangers who transferred cash in exchange for a small object stored in a bag under the SUV's tire -- collectively are consistent with criminal conduct. See State v. Arthur, 149 N.J. 1, 10 (1997) (reasonable, articulable suspicion justifying a stop of the defendant's vehicle was demonstrated when the defendant drove into a high-traffic drug area, another entered his car and left shortly thereafter carrying a paper bag, the defendant drove off, and the person carrying bag acted furtively).
Defendant's attack on Officer Deabreu's conclusion that he viewed a drug transaction rather than just a sale of an object is spurious. We have no doubt the officer's testimony established the required objectively reasonable, articulable suspicion that defendant engaged in criminal activity generally and illicit narcotics sales specifically. Officer Turner properly approached and stopped Steide's Ford to effectuate defendant's arrest. As a consequence of the stop, defendant let the brown bag, which had been sitting on his lap, slip to his feet, allowing the contents of the bag to be visible.
Defendant challenges the court's conclusion that the warrantless seizure of the bag was authorized as the item was in "plain view." Defendant does not contest the police were lawfully in the viewing area or that the discovery of the evidence was inadvertent, but he focuses on whether it was immediately apparent to police that the item in plain view was evidence of a crime, contraband, or otherwise subject to seizure. State v. Johnson, 171 N.J. 192, 207 (2002).
"The standards for determining probable cause to arrest and probable cause to search are identical." State v. Moore, 181 N.J. 40, 45 (2004). "Probable cause exists if at the time of the police action there is a 'well grounded' suspicion that a crime has been or is being committed." Johnson, supra, 171 N.J. at 214; State v. Wilson, 178 N.J. 7, 13 (2003). Such a determination "requires nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Johnson, supra, 171 N.J. at 214 (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)). The factors to be considered under a totality of the circumstances standard "include a police officer's common and specialized experience and evidence concerning the high-crime reputation of an area." Moore, supra, 181 N.J. at 46 (internal quotations and citations omitted). "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).
Therefore, the same factors assessed to find probable cause for defendant's arrest may be considered when examining the seizure of the brown bag. The bag at defendant's feet resembled the bag from which defendant took the item he transferred to the buyers. Also, the bag matched the one Officer Deabreu saw defendant retrieve before entering the Ford. These observations, coupled with Officer Deabreu's experience as a narcotics officer working in an area known for illegal drug trafficking, support the well-grounded suspicion the bag at defendant's feet, in plain view, was evidence of illegal narcotics sales. Johnson, supra, 171 N.J. at 206-07.
Defendant also challenges the motion judge's denial of his request to compel the State to reveal its surveillance location. Defendant argues the motion judge refused to allow him to elicit "information concerning the elevation and angle of sight from which Officer Deabreu made his purported observations[,]" depriving him of a full and fair opportunity to confront Officer Deabreu at trial. We are not persuaded.
A police privilege to retain the secrecy of a surveillance location, N.J.R.E. 515; N.J.S.A. 2A:84A-27, is designed to protect important public interests, including the ability to use the locations for future surveillances, preventing reprisals to officers and private persons, and encouraging citizens to cooperate with the police. State v. Garcia, 131 N.J. 67, 74-75 (1993). Trial courts evaluate whether the privilege is overcome "on a case-by-case basis." Id. at 80; State v. Zenquis, 131 N.J. 84, 88 (1993). "[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). A court must focus on the negative effect disclosure may have on the public good and balance the State's need to prevent disclosure to protect the public interest against the defendant's need for the information to prepare his defense.
Garcia, supra, 131 N.J. at 80-81. In our review of an order denying disclosure, we will not alter the motion judge's determination absent a showing that there was an abuse of discretion.
Here, following his in camera review, the motion judge ruled divulgence of the height and angle of the police team's view would actually pinpoint the surveillance location. We defer to this finding. Defendant was permitted to cross-examine the officers regarding his distance from the intersection, obstructions, use of binoculars, and lighting. See Id. at 81-82 (stating a defendant is entitled to question the witness about the distance from which the observation was made and whether the witness used a vision-enhancing device). We discern no abuse of discretion in the court's order denying further disclosure of the details of the surveillance team's location.
The next group of issues presented center on discretionary evidentiary determinations of the trial judge. First, defendant argues the trial court erred by allowing Detective Meoqui to testify as an expert in the field of street narcotics, because this case "involved an allegation of two straightforward hand-to-hand transactions" obviating the need for expert testimony "to determine [defendant]'s purpose in possessing the drugs[.]"
"'Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson.'" State v. Nesbitt, 185 N.J. 504, 507 (2006) (quoting State v. Odom, 116 N.J. 65, 81 (1989)). See also N.J.R.E. 702. Courts have repeatedly recognized that the nature and purpose of the possession of illegal drugs is a subject not generally known to laypersons, but rather is a subject within the specialized knowledge of experts. State v. Summers, 176 N.J. 306, 312 (2003).
We disagree with defendant's argument that the limitation imposed on the State's use of an expert to discuss street narcotics transactions, set forth in State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), is applicable here. In Baskerville, the issue before the jury was whether defendant had distributed drugs. We held it was error for the expert to opine that drug transactions had, in fact, occurred because the State's fact testimony was "entirely ambiguous," and "left entirely open, without direct evidence of any kind, the question whether an incident or two of drug distribution had occurred." Id. at 261-64. For example, the testifying police officer "believed" two individuals handed defendant cash in exchange for drugs, but could not "say that it was in fact money[.]" Id. at 248-49. The expert believed defendant retrieved the object he sold from a paper bag but "couldn't say for sure[,]" did not see defendant transfer something and could not tell that an object removed from the bag was transferred, but believed something was, in his opinion. Id. at 252-53. Finally, when the defendant was arrested, no drugs were found. Id. at 250, 253.
In light of this testimony, we concluded there was no doubt that the expert's opinion "was used to 'carry the prosecution's proof above the requisite line[,] . . . salvag[ing a potentially] insufficient case.'" Id. at 261-62 (quoting United States v. Young, 745 F.2d 733, 766 (2d Cir. 1984) (Newman, J., concurring), cert. denied sub nom. United States v. Myers, 470 U.S. 1084, 105 S. Ct. 1842, 85 L. Ed. 2d 142 (1985)).
The Supreme Court thereafter addressed the scope of this limitation in Nesbitt, supra, 185 N.J. at 516, observing that expert testimony is permissible to describe any unusual aspects of drug transactions as jurors are not generally aware of the methods of operation utilized in street-level drug sales, id. at 506-07, especially when drug dealers "act in concert with others in the business of distributing drugs on the street[,]" id. at 515.
This matter does not suffer from the same infirmities we discussed in Baskerville. Officer Deabreu precisely described the specific exchange between defendant and two others. He saw cash being given to defendant and detailed the size and color of the bag from which defendant took a small object he exchanged. When arrested, defendant possessed eleven vials of cocaine that were the same size and shape of the items defendant transferred to the two individuals for money.
Moreover, Detective Meoqui complied with parameters for permissible expert testimony first outlined in Odom, supra, 116 N.J. at 80-81. See also State v. Berry, 140 N.J. 280, 297-98 (1995). Her testimony first explained her experience relative to police surveillance methods; the definition of the term "stash location" and its use in drug transactions; and whether individuals could possess quantities of cocaine for personal use or for the purpose of distribution. She was then presented with a hypothetical question mirroring the facts at hand and asked whether "[u]sing those facts . . . are you able to give  an opinion about whether Individual A possessed . . . those 11 bags of cocaine for personal use or with the intent to distribute them?" Over defendant's objection, Detective Meoqui responded affirmatively. When asked her opinion, she stated, "That's a distribution."
The hypothetical properly laid a foundation for the question posed, sticking to the facts in evidence but without referring to defendant or Steide. State v. Reeds, 197 N.J. 280, 293 (2009). Detective Meoqui expressed her opinion based on the facts of the hypothetical, not on the ultimate question for the jury's determination. We conclude the scope of expert inquiry was to aid the jury and not to further bolster the State's case. Nesbitt, supra, 185 N.J. at 516.
For the first time on appeal, defendant contends "the State improperly elicited testimony during the direct examination of . . . Officer Deabreu, which impermissibly created the inference that [defendant] had prior criminal contact with police[,]" which he maintains "improperly conveyed to the jury that [defendant] had previously been involved in criminal activity." We disagree.
During Office Deabreu's direct examination, the following colloquy took place:
Q: How many people did you see on the street?
Q: And who were those two people? A: [Defendant] and Ste[ide].
Q: Now[,] did you know any of those individuals before that day?
BY [DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Overruled.
Q: And how did you know [defendant]? A: From the community.
Q: You knew [defendant], correct? A: Yes.
Q: So there was no confusion over which one was being approached [by the unidentified male], correct?
Defendant raised no further objection and did not request a curative instruction.
We generally defer to a trial court's ruling on the admissibility of evidence, including admission of other crimes evidence. We reverse only when a ruling "constitute[s] an abuse of discretion." State v. Erazo, 126 N.J. 112, 131 (1991); State v. Morton, 155 N.J. 383, 453 (1998) cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L. Ed. 2d 306 (2001). If the testimony were admitted in error, we must determine whether that error inappropriately contributed to the jury's verdict. R. 2:10-2. We conclude it did not.
Nothing suggests the jury's verdict was a product of bias or a belief that Officer Deabreu's recognition of defendant inferentially suggested defendant had been involved in past criminal activity. Here, Officer Deabreu was asked whether he knew defendant or Steide prior to the arrest, which he answered affirmatively. It was then that an objection was lodged and overruled. The series of questions that followed, which reflected Officer Deabreu's recognition of defendant from the community and not from past criminal activity or a past criminal investigation, were not met by objection.
We determine the statements had no "capacity to prejudice the defendant by implying that he had committed previous criminal acts or was otherwise disposed toward criminal behavior." State v. Ramos, 217 N.J. Super. 530, 538 (App. Div., certif. denied, 108 N.J. 677 (1987)). Accordingly, the statement was not "'clearly capable of producing an unjust result.'" State v. Macon, 57 N.J. 325, 337 (1971) (quoting R. 2:10-2).
Defendant also argues for the first time on appeal that the trial court erred by admitting Officer Deabreu's testimony regarding his assignment, at the time of the incident, to the Community Services Division of the Elizabeth Police Department and that his duty was to respond to specific complaints, which included narcotics violations. Defendant asserts these statements suggested the "surveillance on the date in question [was] in response to citizen complaints about narcotics activity," arguing the hearsay "served to impermissibly bolster the State's assertion that [defendant] was conducting open-air [drug] transactions in the area,  suggesting [Officer] Deabreu had received a complaint about him." Following our review under the plain error standard, R. 2:10-2, we reject defendant's contentions.
The purpose of Officer Deabreu's testimony regarding his time with the Community Services Division was to establish his employment history and experience, not to infer "that he had been provided information from out-of-court sources . . . about narcotics activity at Salem Ave[nue] and Pingry Place." The witness summarized his general background and duties without reference to the incident in question. We discern no error.
Next, defendant seeks a new trial based on claims of inappropriate conduct by the State. Defendant argues his request for mistrial was improperly denied and the prosecutor mischaracterized the evidence in summation.
During the State's cross-examination of Abelard, defendant's barber, the State challenged his credibility by inquiring about what remuneration he received to testify, as follows:
Q: You live down in Florida now?
Q: And you flew up at the expense of [defense counsel], correct, at [t]he expense of . . . the Public Defender's Office?
[Defense Counsel]: Objection.
Sidebar was immediately called and defendant moved for a mistrial. The trial court reserved its final determination on the application and offered to provide a curative instruction to the jury regarding the public defender reference. The defense accepted the use of this curative instruction:
Ladies and gentlemen, I declared a recess before because there was a reference made by [the assistant prosecutor] to the Office of the Public Defender paying for Mr. Abelard's airline fee to come here today. You are to take no negative inference from the fact that the Office of the Public Defender did so make those payments. Many times a defendant engages private counsel but there are additional expenses that he is not able to pay where the State of New Jersey funds those expenses because the defendant has a right to present as good a defense as the richest defendant in the land, and the State provides those and they pay them through the Office of the Public Defender. So [the assistant prosecutor]'s reference to that and to who paid for Mr. Abelard's costs to come here today should not be considered in any way detrimental to the defendant.
Thereafter, at the close of trial, the court denied defendant's application for a mistrial, determining the comment "was a passing reference," which elicited no prejudice.
Defendant asserts the reference to his public defender "was improper because it suggested to the jury that he could not afford a private attorney, and allowed them to consider his impecuniousness as evidence of guilt." Also, he maintains the trial court's mention of the Office of the Public Defender during the charge "only served to highlight the prosecutor's comment and ensure that the jurors were aware that the [p]ublic [d]efender was involved with [defendant]'s case."
"A mistrial is an extraordinary remedy[.]" State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973). 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. On appeal, the denial of a request to enter a mistrial will not be disturbed 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); Greenberg v. Stanley, 30 N.J. 485, 503 (1959). Accordingly, a "trial court's decision is granted great deference on appeal." Hogan, supra, 297 N.J. Super. at 15.
No manifest injustice occurred as a result of the assistant prosecutor's reference to the public defender's payment of the witness's transportation costs. This finding is reflected in the defendant's acceptance of the court's detailed curative instruction, delivered immediately after the statement was uttered. We need not disturb the trial judge's determination.
The next group of challenges asserts prosecutorial misconduct during the State's summation deprived defendant of his right to a fair trial. Defendant argues the prosecutor misstated the evidence (by incorrectly characterizing the observations of the police witnesses and in misstating the nature of the expert's opinion) and did not confine her comments to the trial record. We review each of these contentions.
Discussing the police testimony, the assistant prosecutor said: "Now the officers from Elizabeth who testified before you today were pretty clear about pretty much everything. They know who they saw. They saw [defendant]. They know what they saw [defendant] do. He engaged in hand-to-hand narcotic transactions." Defendant believes the comment purposely exaggerated the evidence, emphasizing only one officer --Officer Deabreu -- observed defendant's street interactions with the unidentified males. Further, Officer Deabreu's testimony stating he saw defendant receive money in exchange for narcotics was conclusory because he could not positively identify the objects. Defendant asserts "[a]lthough [Officer Deabreu] concluded these exchanges were narcotic transactions, he did not actually observe narcotic transactions."
Regarding the misstatement of the expert's testimony, defendant cites this comment:
You also heard from Detective Meoqui. She indicated that when you take into consideration all these factors there's really no question about what happened here.
The defendant had the narcotics on his person. He had them in a stash location while he was selling them. He had lots of money in small denominations, and he had a lookout in a high-narcotics area. This . . . is how they do drug sales on the street. This . . . isn't anything unusual.
So you have to consider all those factors.
You can't just say, well, he had the drugs on him. No, he had the drugs on him and he had the money on him, and he was seen doing two hand-to-hand transactions.
Defendant argues "[t]his was not the nature of the detective's testimony because Detective Meoqui could not tell the jury whether there was any 'question' about 'what happened here' [because s]he was not a fact witness."
Finally, defendant maintains the following comments reflect the prosecutor "was essentially testifying to her personal knowledge" not confining her comments to the evidence presented at trial:
We can't have people out there getting every buyer and at the same time getting the seller. We can't have units patrolling the streets over here and then taking down people over here . . . . We can't fingerprint every single thing that comes into our office. We don't have the money, we don't have the manpower, but we're trying.
Defendant states these comments "were not based on facts revealed during trial" as no witness testified regarding why buyers were not stopped or "the reasons why certain tests were not performed in this case."
Because these issues were not raised before the trial court, our review is based on the plain error standard. R. 2:10-2. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Further, when determining "whether prosecutorial misconduct, such as improper remarks in summation, requires reversal, we determine whether the conduct was so egregious that it deprives the defendant of a fair trial. Id. at 83. Prosecutors should not make inaccurate legal or factual assertions, id. at 85, but confine their summations to review of, and argument on, the evidence, free from "improper expressions of personal or official opinion as to the guilt of the defendant . . . ." State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied sub nom., Thornton v. New Jersey, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963).
Despite these limitations on summation arguments, "'[c]riminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation[.]'" State v. Timmendequas, 161 N.J. 515, 587 (1999) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)). Accordingly, "prosecutorial misconduct will not serve as the basis for reversal unless it was so egregious as to work a deprivation of a defendant's right to a fair trial." State v. Feaster, 156 N.J. 1, 59 (1998).
Generally, if counsel does not object to the improper remarks, the remarks will not be deemed prejudicial, since the failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. Frost, supra, 158 N.J. at 84. Failing to object also "deprives the court of an opportunity to take curative action." Ibid.
We reject as hair-splitting defendant's challenge to the prosecutor's use of the word "officers" rather than "officer." Similarly, although Officer Deabreu could not identify the exact contents of the small packages handed by defendant to the two unidentified males, the comment that the packages contained illegal narcotics was a fair inference from his testimony, which the jury was permitted to accept or reject. Also, the State's closing accurately summarized Detective Meoqui's expert testimony, followed by a review of the other facts of the case.
Finally, Office Deabreu did testify regarding the lack of resources summarized by the assistant prosecutor. During cross-examination, Officer Deabreu acknowledged the police department did not "have enough man power" to arrest the buyers and that it is not "standard procedure to fingerprint narcotics and drugs found on suspects" because the police department "just [doesn't] have enough manpower to do that."
After considering defendant's contentions in light of the record and applicable law, we reject the claims of prejudice as without merit. We conclude all aspects of defendant's trial were fair and just.
Defendant argues the trial court abused its discretion in denying his request for a cross-racial identification charge, "despite the fact that identification was a key issue in the case." Defendant, who is black, believes Officer Deabreu, who is white, mistakenly identified him.
"'A cross-racial identification occurs when an eyewitness is asked to identify a person of another race.'" State v. Walker, 417 N.J. Super. 154, 159 (App. Div. 2010) (quoting State v. Cromedy, 158 N.J. 112, 120 (1999)). A cross-racial instruction is warranted "when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Cromedy, supra, 158 N.J. at 132. "The charge further requires jurors to 'consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race.'" Walker, supra, 417 N.J. Super. at 159 (quoting Model Jury Charge (Criminal), "Identification: In-court and Out-of-court Identifications," (June 2007)).
"The Court has reaffirmed the vitality of Cromedy in situations where the cross-racial identification was 'critical to the outcome of the case,' and the corroborating evidence was lacking in credibility and reliability." Walker, supra, 417 N.J. Super. at 160 (citing State v. Ways, 180 N.J. 171, 198-99 (2004)). Not every cross-racial identification triggers an obligation to give the instruction. Walker, supra, 417 N.J. Super. at 159. See also State v. Murray, 338 N.J. Super. 80, 89-90 (App. Div.), certif. denied, 169 N.J. 608 (2001).
Here, although we agree identification was an important component of the State's case, we find the failure to give a Cromedy charge was not plain error because of the specific conditions surrounding the identification. Murray, supra, 338 N.J. Super. at 89-90. Officer Deabreu, a trained law enforcement officer, provided the identification of defendant. See ibid. (holding there is a significant difference between an identification made by a trained police officer and an identification made by the victim of a violent crime). Using binoculars, Officer Deabreu consciously and consistently observed defendant during the narcotics transactions, while in a well lit area on a clear evening with unlimited visibility. Officer Deabreu held a heightened awareness of the need for a proper identification and had a strong incentive to be observant. See State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997). He never lost sight of defendant, watching him as he left the corner and entered the green Ford. Finally, Officer Deabreu identified defendant upon arrest, within minutes of viewing him.
After considering the facts surrounding the identification here, we find no error in denying the defendant's charge request. Accordingly, the trial judge correctly determined a cross-racial identification charge was not required.
We determine defendant's argument of error in the court's denial of his motion to dismiss based on a challenge to the sufficiency of the evidence is meritless. R. 2:11-3(e)(2). We provide this brief discussion.
At the close of the State's evidence, defendant sought acquittal of the charges. In determining a motion for acquittal, we apply the standard announced in State v. Reyes, 50 N.J. 454 (1967), determining: 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. [Id. at 459.]
Specifically, defendant argues the charge of possession with the intent to distribute a controlled dangerous substance within 1000 feet of a school must be dismissed because the State "failed to produce an adopting ordinance or resolution adopting" the drug free school zone map which was authenticated at trial. The State offered Officer Deabreu's testimonial evidence on this issue. Without objection, he reviewed a map of the Elizabeth drug-free school zones, placing an "X" where he observed defendant engaging in the distribution of illegal narcotics. He testified the "X" was within 1000 feet of multiple public and private schools.
Defendant also asserts "the State failed to present credible evidence regarding the various possession with intent charges[,]" suggesting none of the buyers were identified or apprehended and Officer Deabreu reversed the clothing description of defendant and Steide. Notwithstanding these facts, the State's evidence in its entirety was more than sufficient to allow a reasonable jury to determine defendant was guilty beyond a reasonable doubt. Reyes, supra, 50 N.J. at 459; 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)).
Based on our rejection of the various claims of error asserted, we need not address defendant's request for reversal on the basis that alleged cumulative errors impeded his right to a fair trial. See State v. Johnson, 65 N.J. 388, 401 (1974) (stating small, insignificant and unrelated improprieties or even oversights, when viewed in combination, "pyramid upward at a deadly speed, quickly rising to the level of plain and prejudicial error and injustice"). Our review discerns no error warranting that the verdict be set aside.
Defendant's final point challenges the sentence imposed by the trial court. Defendant acknowledges he was extended-term eligible, N.J.S.A. 2C:43-6(f), but challenges the term imposed, suggesting the court's determination "was based upon unsupported findings of fact, and improper balancing of aggravating and mitigating factors, thus constituting a misapplication of its discretion." We disagree.
Our review of the trial judge's sentencing decision is quite limited. State v. Bieniek, 200 N.J. 601, 607-08 (2010). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]'" the trial judge is afforded considerable discretion in the imposition of the sentence, and in our review we "'may not substitute [our] judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Evers, 175 N.J. 355, 386 (2003)). When a trial judge's findings of statutory aggravating and mitigating factors are "based upon competent credible evidence in the record," and the sentence imposed falls within the permissible range for the convicted offense, we will not interfere. State v. Roth, 95 N.J. 334, 363-64 (1984); Bieniek, supra, 200 N.J. at 607-08. Accordingly, 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." Cassady, supra, 198 N.J. at 181 (quoting Roth, supra, 95 N.J. at 365). Modification becomes necessary only when we determine the judge mistakenly exercised his or her broad discretion and imposed a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 364.
After granting the State's application for a mandatory extended term, the trial judge noted defendant's additional conviction for the second-degree offense of distribution within 500 feet of a public park, an offense not subject to a mandatory extended term, would not increase his possible sentence, "but raise[d] the minimum period of parole ineligibility that could be imposed." N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) requires the minimum term "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . ."
In sentencing defendant to an extended term of seven years with a forty-two month parole bar, the court found two aggravating factors -- the need to deter and the risk of recidivism, N.J.S.A. 2C:44-1(a)(3), (9) -- and found no mitigating factors. We reject defendant's arguments.
The court's finding of applicable aggravating factors was "'grounded in competent, reasonably credible evidence.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting Roth, supra, 95 N.J. at 363). In addition to a prior conviction for manufacturing with intent to distribute CDS in 2001, defendant was convicted of possession of CDS with intent to distribute in 2002, along with juvenile adjudications and municipal court dispositions, many of which involved drug possession and distribution. When weighed against the absence of mitigating factors, defendant's mid-range sentence with a 50% period of parole ineligibility does not "shock the judicial conscience." Roth, supra, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). We therefore find no basis for interference with the sentence imposed.
As detailed in the above discussion, we will not disturb defendant's convictions following a jury trial or the sentence imposed by the court.