August 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALTARIQ WAGNER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-02049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011
Before Judges Ashrafi and Nugent.
Defendant AlTariq Wagner appeals from his conviction after a jury trial for drug and firearms offenses. We affirm.
After his arrest in an apartment building in Newark, defendant was tried on four counts of an indictment that charged him with third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); second-degree possession of heroin with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1; and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b.
At the trial, the prosecution presented testimony from three Newark police officers and a police firearms witness. The Newark officers testified they were in uniform at about 7:10 p.m. on February 23, 2008, investigating possible criminal activity at an apartment building located at 523 South 14th Street in the city. They opened an entry door and looked into a well-lit, first-floor hallway, where they saw defendant and two other men together. The police observed defendant receive money from one of the men and hand an item to the man.
Upon seeing the police, defendant fled up the stairs. On the second-floor landing, he took a handgun from his waistband and threw it out a window. He was apprehended as he tried to enter a third-floor apartment. On his person, the police found $891 in denominations of twenty dollars or less, including more than 100 one-dollar bills. They did not find any illegal drugs on his person. They recovered the loaded handgun from a vacant lot outside the second-floor window.
The police also arrested the man in the hallway who had handed defendant money and received something in return. They seized two decks of heroin from his hand.
Defendant was the only witness for the defense. In brief direct testimony, he denied he had been in the hallway before his arrest or that he had fled up the stairs. He testified he spent the afternoon at his uncle's apartment on the third floor watching television and eating pizza. The police knocked on the door shortly after 6:00 p.m. and asked whether anyone had run into the apartment. They returned later and searched him, his uncle, and his uncle's girlfriend. Upon finding cash in his possession, they charged him with the drug and firearms offenses. He said he had received $800 in cash from his mother that day to pay his cell telephone bill but spent the day at his uncle's apartment instead.
Apparently crediting the officers' testimony, the jury convicted defendant on all four counts. The court sentenced him to concurrent terms on several counts and a consecutive term on the count for possessing a firearm in connection with a drug offense. His aggregate sentence was ten years' imprisonment with three years of parole ineligibility.
On appeal, defendant makes the following arguments:
THE ADMISSION OF HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL. (Partially Raised Below).
DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER LAY OPINION TESTIMONY. (Not Raised Below).
THE PROSECUTOR'S COMMENTS IN HIS SUMMATION CONSTITUTED MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
Having considered the trial record and briefs of counsel, we conclude that defendant's points of error do not warrant reversal of his conviction and a new trial.
Defendant argues the prosecution committed prejudicial error at trial under the holding of State v. Bankston, 63 N.J. 263 (1973), when it allowed one of the police witnesses to give hearsay testimony about narcotics activity at the apartment building. In Bankston, the Court held the prosecution may not introduce hearsay into evidence suggesting the police had specific information from a non-testifying informant that the defendant was engaged in criminal activity. Id. at 268-69. In State v. Branch, 182 N.J. 338, 351 (2005), the Court stated that "a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant."
Here, defendant claims the following testimony by the first police witness, Officer Juan Ramos, violated Bankston:
Q: Mr. Ramos, where are you employed?
A: In the City of Newark. Q: In what capacity?
A: Police officer.
Q: How long have you been so employed?
A: Seven and a half years.
Q: On February 23, 2008, what unit were you assigned to?
A: Street Crimes Task Force.
Q: What is the job of the Street Crimes Task Force?
A: We concentrate on high-crime areas; high-narcotic areas, recent shooting areas and homicide areas.
Q: Why would the Street Crimes Unit go to a particular area?
A: Recent complaints of narcotics activity; again, a recent shooting or recent homicide.
Upon hearing the last answer, the trial judge called the attorneys to sidebar and admonished the prosecutor to avoid a violation of Bankston, as the judge had previously done after the opening statements.
We find no merit in defendant's argument that the officer's general reference to recent complaints of crimes violated the hearsay proscription of Bankston. It did not indicate that the officer had any specific information about defendant. It was more in the nature of testimony that the police were patrolling a high-crime or drug-trafficking area when they encountered defendant.
Defendant also criticizes the trial court for failing to give the jury a curative instruction after the officer's testimony, but defendant did not request an instruction to the jury. The court's intervention anticipated and prevented the potential for testimony in violation of Bankston before it occurred. There was no plain error in omitting a curative instruction that was not requested and may only have highlighted to the jury an inference that the officer's testimony did not yet warrant.
Next, defendant argues he was prejudiced when a police sergeant testified that a deck of heroin would sell on the street for five to ten dollars. The prosecutor presented that testimony in conjunction with evidence of the money seized from defendant and the denominations of the bills. Defendant argues the sergeant's testimony was an inadmissible lay opinion, since the sergeant was not qualified as an expert witness in narcotics sales. The State responds that the sergeant's testimony was admissible as "a specialized lay opinion" under N.J.R.E. 701 and 702. See State v. LaBrutto, 114 N.J. 187, 197 (1989) (police officer's lay testimony was admissible about the point of impact of a motor vehicle collision); State v. Johnson, 120 N.J. 263, 294-95 (1990) (admissible lay testimony by police witness comparing a shoeprint at the crime scene with the defendant's sneaker). But see State v. Bealor, 187 N.J. 574, 586 (2006) (police officer's testimony that the defendant appeared under the influence of marijuana not admissible as lay opinion testimony under N.J.R.E. 701 and not sufficient to prove driving while intoxicated).
In our view, the rules of evidence addressing opinion testimony have no application to the disputed testimony in this case. The sergeant's testimony about the price of a deck of heroin was not opinion testimony at all. It did not attempt to place a value on a quantity of heroin. Rather, the sergeant was providing fact testimony about the street market price of heroin, presumably based on his personal experience with investigating narcotics sales. Had defense counsel objected, the prosecutor might have been required to lay a foundation for the sergeant's source of knowledge. Without an objection, the proceedings moved on without further elaboration of the point.
There was no plain error in the admission of testimony about the street price of a deck of heroin.
Defendant argues prejudicial error in several comments made by the prosecutor in his closing argument. "[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). "[P]rosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations[,]" State v. DiFrisco, 137 N.J. 434, 474 (1994), but a prosecutor's arguments are not unfettered, State v. Williams, 113 N.J. 393, 447 (1988). The prosecutor is granted wide latitude to make "fair comment" on the evidence so long as he or she stays within legitimate inferences that can be deduced from the evidence. See State v. R.B., 183 N.J. 308, 330 (2005); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
Here, the prosecutor committed error in his summation when he remarked: "[Defendant] was going through the hallway passing out drugs like a peanut vendor would at a baseball game." The prosecution's case involved only one transaction that the officers observed. There was no evidence presented by which a reasonable inference could be drawn or argued to the jury that defendant was passing out drugs like a vendor at a ball game.
In context, however, the prosecutor's statement was intended to answer the defense suggestion that the testimony of the officers should not be believed because defendant would not have engaged in a drug transaction after they opened the entry door to the hallway. In attempting to argue that defendant was too involved in making a drug transaction to be concerned about a door opening, the prosecutor resorted to inappropriate hyperbole and overstated the evidence and reasonable inferences that could be drawn from it.
Nevertheless, we conclude the isolated remark was not plain error requiring that the conviction be reversed. See State v. Feal, 194 N.J. 293, 312 (2008); State v. Koskovich, 168 N.J. 448, 488-89 (2001); State v. Timmendequas, 161 N.J. 515, 575-76 (1999). In determining whether a conviction must be reversed because of a summation comment, the reviewing court considers whether defense counsel made a timely objection. State v. Smith, 167 N.J. 158, 181-82 (2001). If no objection was made, remarks usually will not be deemed prejudicial and reversible. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
Here, defense counsel did not raise any objection at trial to the improper comment. Had he objected, the court could have sustained the objection and instructed the jury to disregard the improper comment. The court could also have given a curative instruction if requested.
As to defendant's other contentions pertaining to summation error, we conclude the prosecutor's comments were either not improper or were not capable of influencing the jury's verdict. Again, because there was no objection at trial, defendant would have to show plain error, which he has not shown.
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