August 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL J. MYLES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Ashrafi and Nugent.
Defendant, Michael J. Myles, appeals from his conviction by a jury of
third degree possession of cocaine, N.J.S.A. 2C:35-10
(a)(1) (count one), third degree possession of cocaine with the
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two),
and third degree distribution of cocaine, N.J.S.A. 2C:35-
5(a)(1) and (b)(3) (count three). The judge merged counts one and two
with count three, and imposed a sentence of eight years of
imprisonment with four years of parole ineligibility.*fn1
We affirm the conviction and sentence, but remand for
correction of the judgment of conviction.
At trial, the State presented evidence that on July 19, 2008, at approximately 10:30 p.m., officers from the Trenton Anti-Crime Unit were conducting a "buy-bust" operation in which undercover agents purchased narcotics, then radioed back-up units to arrest the dealers. Detectives Erica DiMarcello and Tim Miller were in plain clothes, driving an unmarked pick-up truck in an area of Trenton known for drug transactions, when they spotted defendant. Defendant made eye contact with them and yelled "yo," a term they understood to be used by drug dealers to attract potential buyers. DiMarcello pulled the truck over, and defendant walked to the passenger side and bent his head down.
Miller said, "I have twenty, hook me up." Defendant told the detectives to wait, walked away, then returned two or three minutes later with a substance that proved to be crack cocaine.
Miller gave defendant two marked ten dollar bills and defendant told the detectives to "remember this face the next time you're in the area."
Miller radioed Officer Jason Snyder and a back-up unit, told them he had purchased crack cocaine, and gave them a description of the dealer. Snyder saw defendant a minute or two later and arrested him. DiMarcello and Miller then drove by the site of the arrest and radioed to Snyder that he had arrested the right person. Snyder subsequently searched defendant and found a razor blade, but neither the marked bills nor any drugs. Defendant was transported to the Trenton Anti-Crime Unit where Miller subsequently arrived and processed him. Miller testified that defendant blurted out, "I didn't sell you crack."
The jury rejected defendant's defense of mistaken identification. Defendant presents the following points for our consideration on appeal:
Point One - THE JURY CHARGE ON
IDENTIFICATION WAS INADEQUATE AND CONFUSING.
Point Two - DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AT EVERY STAGE OF HIS TRIAL.
Point Three - THE TRIAL COURT IMPROPERLY
DENIED DEFENDANT'S NEW TRIAL MOTION.
Point Four - DEFENDANT RECEIVED AN
For the first time on appeal, defendant contends that the jury instructions were confusing or deficient because the court either gave, or alternatively, did not repeat, a portion of the identification charge. During the charge conference, while discussing the identification instructions, the court commented that one sentence was confusing:
There was, if you - - I don't know if you have the last page of this identification, there was one sentence that I'm not sure if I should read. It starts off by saying, this is towards the very end of the identification, model charge, "unless the in-court and out-of-court identifications resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense rather than being a product of an impression gained at the in-court and/or out-of-court identification procedures, it should be afforded no weight. The ultimate issue of the trustworthiness of the identification is for you to decide." That first sentence I read I thought was rather confusing. [(Emphasis added).]
Defense counsel twice stated that she was confused by the instruction, and also said she did not think it would be helpful. The prosecutor agreed.
When the court instructed the jury on identification, it stated in part:
The State has presented the testimony of Detective Erica DiMarcello and Officer Timothy Miller. You'll recall that these witnesses identified the defendant in court as the person who committed these three offenses charged in the indictment.
The State also presented testimony that on a prior occasion before this trial, these witnesses identified the defendant as the person who committed these offenses. According to these witnesses, their identification of the defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offenses were being committed.
If you determine that the out-of-court identifications are not reliable, you can still consider the witness's in-court identification of the defendant if you find it to be reliable.
Unless the in-court identification resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at an out-of-court identification procedure, it should be afforded no weight.
The ultimate issue of the trustworthiness of both the in-court and out-of-court identifications are for you to decide [(Emphasis added).]
Defendant did not object to the charge as given.
We recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997) (citation omitted). "Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563, 571 (1994)).
In assessing its propriety, we examine the entire jury charge to see whether it was ambiguous or whether it misinformed the jury regarding controlling law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960). The defendant is not entitled to have a jury charged in his or her own words. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002).
Additionally, as defendant initially agreed that the specific charge should not be given, and did not object to the court's modifications, he must demonstrate plain error; that is, error "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, "[r]eversal of [the] defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).
Defendant contends the court's instruction on identification resulting from the witnesses' observations during the commission of the offense was, as the judge and counsel initially agreed, confusing. Although perhaps confusing in the abstract, we do not find the somewhat modified instruction to the jury unclear in the context of the entire identification charge. The court substantially followed the model jury charge on identification, and the charge considered as a whole was not ambiguous and did not misinform the jury regarding controlling law. R.B., supra, 183 N.J. at 324.
Defendant argues, alternatively, that the specific instruction should have been given a second time, immediately after the court's instruction on cross-racial identification. We find that the failure to repeat the instruction was not plain error. There was substantial evidence that the identification was accurate. When the detectives purchased the cocaine, they observed defendant from a very close distance in good lighting. Within minutes of making the sale, they drove by the location of defendant's arrest and confirmed to the arresting officers that defendant was the seller. Miller processed defendant after he was taken into custody. Considering the entire context of the court's instructions on identification generally, and cross-racial identification specifically; considering that the court gave the instruction once; and considering the circumstances of the identification, we do not find plain error.
Defendant next contends that he was denied his right to be present at every stage of the trial. After jury selection, the court conducted a Crudup*fn2 hearing outside the presence of defendant and defense counsel. Defendant was not in the courtroom when the judge returned and ruled that the defense could not cross-examine the police about certain identifying information concerning the pick-up truck. The judge asked defense counsel, however, if she wanted him to conduct a N.J.R.E. 104 hearing. She replied:
[T]he only information that I would really want would be a description as to the height of the truck, [or what] size wheels [it has]. . . . I'm not asking for any kind of descriptive features of the car such as decals or license plate.
Really, the crux of the matter here, your Honor, is the ability of these officers to view [defendant]. And I believe that if I can't get out certain questions like I've indicated, that that would be a serious problem for cross-examination, and would impede [defendant's] ability to get a fair trial.
The court agreed with defense counsel that "[t]he height of the vehicle is an appropriate avenue of inquiry by you, and I'm going to permit you to ask any witness called by the State as to the height of the vehicle." The court said, "[y]ou'll be able to have full rein in terms of asking officers anything to deal with the height of this pick-up truck." When the judge asked defense counsel if she had any other concerns, she replied that she did not.
The right of a criminal defendant to confront witnesses is guaranteed by the United States and New Jersey Constitutions, and includes the "right to be present in the courtroom during every 'critical stage' of the trial." State v. Reevey, 417 N.J. Super. 134, 149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363 (App. Div. 1991), aff'd, 131 N.J. 84 (1993)), certif. denied, 206 N.J. 64 (2011). "In some circumstances that do not involve the confronting of witnesses or evidence against the defendant, the right is protected by the due process clauses of the Fifth and Fourteenth Amendments." State v. Dellisanti, 203 N.J. 444, 453 (2010) (citations omitted). Together, those constitutional protections secure the defendant's "right to be present at every stage of trial 'whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Ibid. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934)). In New Jersey, the defendant's right is also protected by Rule 3:16(b), which provides in part, "[t]he defendant shall be present at every stage of the trial. . . ."
Although it applies to pre-trial proceedings, the right of confrontation "is not absolute." Reevey, supra, 417 N.J. Super. at 149-50. Where the defendant has been absent from a stage of trial, claims of error are examined for prejudice. Dellisanti, supra, 203 N.J. at 458. Specifically, the inquiry is "whether the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense." Id. at 458-59 (citations omitted). "When the absence deprives a defendant of confrontation rights, prejudice can be readily assessed; when confrontational interests are not in play and participation in one's defense is the issue, prejudice is more critically examined." Id. at 459.
A defendant's constitutional rights are not violated by his or her exclusion from a Crudup hearing. Zenquis, supra, 251 N.J. Super. at 365-66. Here, however, defendant raises the distinct but related contention that his rights were violated by his absence from the courtroom when the court put its Crudup decision on the record.
Defendant was excluded during a part of the trial that did not involve confrontation of witnesses, presentation of proofs, or argument on evidentiary issues. After the court placed its decision on the record, defense counsel emphasized the need to know the dimensions of the truck. The court agreed that counsel had the right to know those dimensions and permitted her to cross-examine the State's witnesses accordingly. Defendant has not explained how his absence impaired his defense, how he could have assisted counsel during the court's ruling, or how he could have suggested further cross-examination about the truck that his attorney did not request or that the court did not grant. Although defendant should have been in the courtroom, we find no prejudice to defendant.
Defendant next argues that the trial court improperly denied his new trial motion. His argument is based on inconsistencies in trial testimony concerning his identification. DiMarcello testified when she first saw defendant she identified him as a black male, approximately five feet ten inches to six feet tall, with short hair, and wearing a white T-shirt and dark-colored shorts. At trial, she could not recall details of defendant's facial hair, teeth, or T-shirt, and she admitted she had no training in cross-racial identification. Snyder testified that Miller described defendant as a black male, approximately six feet tall, bald, and wearing a white T-shirt and dark jean shorts. According to Snyder, there were about fifteen people milling around the street and sitting on porches. Additionally, defendant had neither the marked money nor the drugs in his possession when Snyder arrested him.
On the other hand, DiMarcello was only five feet away from defendant when Miller bought the drugs, and because there was a streetlight on the opposite side of the street that shone directly into the pick-up truck, the lighting was very good. DiMarcello and Miller drove by the site of defendant's arrest within minutes of buying the drugs and identified defendant as the person who sold them the crack. Miller processed defendant at the Trenton Anti-Crime Unit a short time later.
A motion for a new trial is governed by Rule 3:20-1, which provides in part:
The trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Under our standard of review, a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). There is no miscarriage of justice when a "'trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Carter, 91 N.J. 86, 96 (1982)), certif. denied, 134 N.J. 476 (1993).
We affirm the denial of defendant's motion substantially for the reasons stated by the trial court. The court meticulously recounted the State's evidence and concluded that there was more than sufficient evidence to uphold the jury's verdict. We find no miscarriage of justice under the law.
Finally, defendant contends that his sentence was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive nor unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider and balance statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess them. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted); O'Donnell, supra, 117 N.J. at 216.
The court granted the prosecutor's motion to sentence defendant to an extended term. See N.J.S.A. 2C:43-6(f); 2C:44-3(a). The court imposed a term of eight years with a four-year period of parole ineligibility. N.J.S.A. 2C:43-6(f). Although defendant does not contest that he was subject to an extended term of imprisonment or the imposition of an eight-year term, he argues the "maximum term of parole ineligibility [one-half of the base term] should be imposed only when the court has set a base term at or near the top of the range for the degree of crime at issue." He contends that eight years is not "at or near the top of the range" of ten years for the offense of which he was convicted. We deem this argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the four-year term of parole ineligibility was only one year more than the minimum term, see N.J.S.A. 2C:43-6(f), and the court adequately explained its reasons for imposing the four-year term, including defendant's eight prior convictions. The court's finding of four aggravating factors and only one mitigating factor, N.J.S.A. 2C:44-1(a) and (b), was supported by sufficient evidence. We find no abuse of discretion.
The court sentenced defendant to eight years of imprisonment with a four-year term of parole ineligibility. The judgment of conviction imposed a flat term of ten years imprisonment. The judgment of conviction needs to be corrected.
Defendant's conviction and sentence are affirmed. The matter is remanded to correct the judgment of conviction. We do not retain jurisdiction.