October 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES L. RANDALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-09-1040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Lihotz and Waugh.
Defendant James L. Randall appeals from his conviction for second-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute on or within 500 feet of a drug-free school zone and lesser included drug offenses. After merger, the trial court imposed an extended term of sixteen years imprisonment, requiring eight years to be served prior to consideration of parole eligibility. Defendant seeks reversal, maintaining he was denied a fair trial and his sentence was excessive. More particularly he asserts:
PROSECUTORIAL MISCONDUCT DEPRIVED MR. RANDALL OF A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER AN OPINION ON THE ULTIMATE ISSUE BEFORE THE JURY THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT THE POLICE WERE PATROLLING THE AREA OF MR. RANDALL'S ARREST IN RESPONSE TO CITIZEN COMPLAINTS ABOUT DRUG ACTIVITY IN THE AREA (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING UNDULY PREJUDICIAL TESTIMONY THAT THE LOCATION OF THE INCIDENT WAS A HIGH-CRIME AREA (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING POLICE WITNESSES TO TESTIFY THAT THEY WERE FAMILIAR WITH THE SUSPECTED BUYER IN THIS CASE FROM PRIOR CONTACT IN THE COMMUNITY (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL.
THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN INSTRUCTION ON THE PROPER USE OF STIPULATIONS OF FACT (NOT RAISED BELOW).
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
MR. RANDALL'S SENTENCE MUST BE VACATED AND REMANDED FOR RESENTENCING (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 considered each of the arguments in light of the record and the applicable law. We affirm.
These facts are taken from the trial record, which the jury relied upon to convict defendant. On June 24, 2008, at approximately 8 p.m., several Burlington City Police Department special enforcement unit (SEU) police officers were conducting narcotics operations in a high-crime area of the city in response to "numerous complaints from residents about open air narcotics trafficking." Detective Sergeant Joseph Caruso and Patrolman Jeremy Bright patrolled the neighborhood around Mitchell Avenue Bridge and a second team of SEU officers, Patrolman Wayne Comegno and Detective Bill Hunt, patrolled the city's adjacent New Yorkshire neighborhood.
From their unmarked van, Sergeant Caruso and Patrolman Bright observed defendant, who was operating a white Pontiac Sunbird, stop his vehicle between the center and the right side of Mitchell Avenue just over the bridge. Defendant was talking through the passenger window to a pedestrian, Brian Greer. Sergeant Caruso recognized both men having been "familiar with [them] through prior contacts in the community." The police watched Greer lean into the open passenger's side window and defendant's hand reach to touch Greer's extended hand as the two exchanged an item. Sergeant Caruso "couldn't quite see what the item was," but believed he witnessed a "hand to hand [drug] transaction."
At that point, Sergeant Caruso and Patrolman Bright pulled within ten feet of defendant's car and exited their van. The police advised defendant to place his hands in the air. Defendant complied. Sergeant Caruso saw defendant held a "clear plastic sandwich baggie with a white rock substance in it." Patrolman Bright also noticed defendant "was holding a bag in his hand" and that "[i]t looked like there was a white, off white rock like substance in the bag." Sergeant Caruso removed defendant from his vehicle, handcuffed him and placed him under arrest.
Greer attempted to walk away from the scene but was detained by Patrolman Comegno, who had been called as back-up. Patrolman Bright patted Greer down and found nothing on his person, therefore Greer was released.
Patrolman Comegno peered inside defendant's vehicle and "observed what I knew to be drug packaging material on the passenger's side front seat." He saw a decorative egg . . . almost like a Faberge egg that was partially open as well as . . . the clear plastic bag with the two smaller clear plastic bags inside, it was immediately next to it as if the egg had been cracked open and that kind of was laying right next to it.
Following defendant's arrest, a search of defendant's person revealed $174.73 and a search of defendant's vehicle revealed a "mint tin can" containing "two separate clear plastic bags with suspected crack cocaine" located on the front passenger's seat, and "[a] clear plastic bag with suspected crack cocaine," stuffed between the driver's seat and the center console.
On September 23, 2008, a Burlington County grand jury issued Indictment No. 08-09-1040, charging defendant with: second-degree possession of a CDS with intent to distribute on or within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three).*fn1
Judge Jeanne T. Covert presided over the three-day jury trial. In that proceeding, the judge read two stipulations prepared by the State and defendant. The first introduced the official Burlington City map designated by N.J.S.A. 2C:35-7(f) and -7.1, depicting the areas of drug-free school and public property zones. Sergeant Caruso pinpointed the Mitchell Avenue Bridge area, which he stated was within 500 feet of the Allen School basketball court and a Pop Warner football field. The second stipulation introduced a lab testing report identifying the substances seized from defendant's car as cocaine, in amounts of 0.36 grams, 1.38 grams, and 0.40 grams. The stipulation also recited the evidence remained in the continuous chain of police custody from the date of its seizure, June 24, 2008, to the date of trial.
The State presented testimony of Sergeant Caruso, Patrolman Comegno, and Patrolman Bright. Additionally, Lieutenant Daniel Leon, Jr., a detective lieutenant for the Burlington County Prosecutor's Office, narcotics unit, who was qualified as "an expert in the field of narcotics, specifically in the area of the distribution and the marketing of illegal narcotics[,]" offered expert testimony regarding the use of crack cocaine, specifically explaining the substance must be heated prior to ingestion. Lieutenant Leon also opined, based upon hypothetical facts mirroring those presented at trial, that "an individual possessing that amount of CDS under those circumstances would be possessed [sic] with the intent to distribute."
At the close of the State's direct evidence, defendant moved for a judgment of acquittal. R. 3:18-1. Judge Covert denied the motion, finding the State presented sufficient evidence to satisfy its burden of proof on all three charges in the indictment.
Defendant testified on his own behalf. On the night in question, he explained he was driving from a church group function when a man he did not know, but later learned was Greer, stepped in front of his car on Mitchell Avenue, leaned into the passenger side window, and asked for a ride. Defendant declined the request as an unmarked police van pulled behind his car. The officers then exited the van with their weapons drawn, and ordered him to put his hands in the air. Defendant complied with the police request and stated, "there was nothing in my hands." Defendant also denied the police assertion that he had drugs in his car. When defendant was taken to the stationhouse, he saw Greer handcuffed to a bench. Following his processing, defendant stated Greer was gone.
The jury returned a unanimous verdict, finding defendant guilty on all three charges. On January 22, 2010, the State moved for the imposition of a discretionary extended term sentence as a persistent offender. The trial judge examined the facts and granted the motion. Judge Covert applied aggravating factors (3), (6), and (9) and mitigating factor (11). After merging counts two and three into count one, the trial judge imposed an extended term of sixteen years imprisonment with an eight-year period of parole ineligibility. This appeal ensued.
Defendant identifies several remarks in the State's opening and closing statements, which he maintains are patently egregious and thereby deprived him of a fair trial warranting reversal of his conviction. Specifically, defendant argues the prosecutor's references to the "war on drugs" equated to "a call to arms," enflaming the jury's passion and prejudice and eroding the jury's objective evaluation of the evidence. He also maintains the prosecutor improperly revealed his personal opinion regarding defendant's guilt and bolstered the credibility of the State's police witnesses.
Defendant lodged no objection to these comments; accordingly, we review them utilizing the plain error standard. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (noting the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached"). In our discussion that follows, we recite the trial passages singled out by defendant.
We first turn to references defendant suggests were designed to elicit a guilty verdict to aid law enforcement in combating the "war on drugs." This phrase was first uttered in jury selection. Counsel had agreed on narrative questions posed to prospective jurors as required by Supreme Court Administrative Directive #4-07. The open-ended questions were taken directly from the model criminal voir dire inquiries suggested by the directive. Specifically, counsel agreed jurors should be asked:
One, do you believe the criminal justice system is fair and effective? Please explain. Two, how do you feel about the so-called war on drugs? For example, do you think the amount of resources the government devotes to enforcing the criminal drug laws and prosecuting suspected offenders is too much, not enough, or about right? Do you think resources could be more effectively used in other ways to address the drug problem, and why do you feel this way?
The State's opening statement began by highlighting that each of the selected jurors was questioned whether he or she "believe[d] that our criminal justice system is fair and effective" and emphasized "the importance of what we're doing here today[.]" After discussing the charges against defendant, the prosecutor stated:
We talked a lot about this so-called war on drugs in the voir dire questions. Well, the City of Burlington has put together this special enforcement unit and they are a proactive unit, mainly designed on street level crimes, specifically street level controlled dangerous substance crimes.
Defendant asserts "the most egregious . . . comments were made during summation," citing the prosecutor's remarks, which he argues were "designed to promote partisanship and divert the attention of the jurors":
And in making your determination as far as the facts of the case[,] what occurred . . . on that evening, credibility becomes an important factor. Because you have to have believed what people were saying in order to find your facts. Now I also told you that Judge Covert, she's going to give you the law. And once you go in the back you're going to join those two, you're going to join what you find happened on that night and you're going to join it with the law and you're going to arrive at a verdict.
And I told you in the beginning that I was going to stand here now and ask you for a return of a verdict of guilty on each of the three charges contained within the indictment. And I stand here now asking you for that very thing.
Why do I ask for that very thing? Well, we discussed in the voir dire this so-called war on drugs. And a lot of people had a lot of different opinions on this so-called war on drugs and whether or not we were devoting enough resources to this war on drugs. And a lot of you had diverse opinions. But what I heard was, from some of you, I don't have enough facts on what the war on drugs entails, what resources we're devoting to the war on drugs, this so-called war on drugs.
Well, I submit through the officers that we have seen we all now have a little glimpse, not a huge one but a little glimpse into what's being done at the street level on this so-called war on drugs. We heard from Sergeant Caruso and his special unit, special enforcement unit. And we heard that this unit is designed to go out and try to improve the quality of life for the community by waging a so-called war on drugs, proactively going into this -- especially this one section of Burlington City, the New Yorkshire area, going out proactively and trying to improve the quality of life by stopping open air sales of drugs among other things . . . .
So we now have a little bit of a glimpse into what's going on at the street level, at least in Burlington City, on this so-called war on drugs. And that sort of plays into the second part of that voir dire process that we were asking you about, and that question was do you feel the criminal justice system is fair and effective. And each one of you had your own opinions on that as well. And I touched upon that in my opening statement, fair and effective.
And I submit to you, ladies and gentlemen of this jury, that today what you're going through, this process that you're doing creates a fair and effective criminal justice system. But remember, I said it has to be fair and effective for the State as well as for the defendant. And I would ask that you just keep that in mind.
In our review we are guided by well-settled standards. We note prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed, prosecutors . . . are expected to make vigorous and forceful closing arguments . . . ." State v. Frost, 158 N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). To that end, they must "confine their comments to evidence revealed during the trial and reasonable inferences" that can be drawn from the evidence. Smith, supra, 167 N.J. at 178.
We will reverse a conviction and order a new trial if we find that the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The Court in Smith, supra, explained in order to rise to the level of plain or reversible error and to warrant a new trial[,] the prosecutor's conduct must have been "'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999). In determining whether a prosecutor's actions were sufficiently egregious to warrant the reversal of a conviction, a reviewing court should take into account:
(1) whether defense counsel made timely and proper objections to the improper remarks;
(2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [167 N.J. at 181-82.]
Thus, even if we note some impropriety in the State's remarks, not every deviation justifies reversal of a conviction. State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "Generally, if counsel did not object [to the remarks], the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). However, if the remarks create plain error, a new trial is necessary. R. 2:10-2.
Relying on our opinion in State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992), defendant maintains the remarks referencing the "so-called war on drugs" were a "clear call to arms." We are not persuaded. Although we agree the repetitive use of the phrase "the so-called war on drugs" was unrelated to the evidence in this case and, in a different context, has been interpreted to provoke a finding of guilt based on passion rather than reference to the evidence; here, in the context of the entire summation and the strong evidence against defendant, we conclude the remarks, either singly or collectively, do not rise to the level of plain error. See State v. Morton, 155 N.J. 383, 419 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (examining prosecutor's comment during summation "in the context of the entire trial").
"Call to arms" comments are designed to "urg[e] jur[ors] to return convictions in order to protect the community and send a message to the criminals[,]" and are generally impermissible, State v. Morais, 359 N.J. Super. 123, 132 (App. Div.), certif. denied, 177 N.J. 572 (2003), because they "improperly divert jurors' attention from the facts of the case, and intend to promote a sense of partisanship with the jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (citations omitted). See also State v. Rose, 112 N.J. 454, 519-20 (1988) (prosecutor's emphasis on the need to "send a message" to the community as to the penalty for crime was improper); State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000) (prosecutor's comment that the jurors could send a message to the community that it "will not tolerate distributors and sellers of LSD" by convicting defendant was improper); State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994) (prosecutor's comment that the jurors could "make a difference in [their] community" by convicting defendant was an improper "call to arms").
In Holmes, supra, the defendant was arrested for possession of CDS during a police raid of an apartment lobby in Newark. 255 N.J. Super. at 249. At trial, the State's case rested on the credibility of police witnesses who testified they saw the defendant drop a bag of cocaine on the floor as they entered. Ibid. The defendant and his witness contradicted police testimony and claimed the bag had not been in his possession, but was found in a fireplace in the lobby. Ibid. We summarized the "impugned portions of [the State's] opening and closing statements[,]" id. at 251, as follows:
On opening, the prosecutor made the following statement to the jury:
Who has the interest, who has motive, who would come before you and lie? That will probably be what you will have to decide and I ask that you observe the witnesses as they testify for you and use your common sense. You all understand the particular drug problem that we have in this country, particularly Newark and I submit to you, that the police officers don't have to make up facts.
When defendant objected the trial court said only, "All right. I think just stay within the facts. You have your summations, Mr. [Prosecutor]."
The prosecutor returned to this theme in summation by saying, "[w]ith the war on drugs, he [the police witness] didn't have to come before you and fabricate these type [sic] of cases. I submit to you he came before you and told you the truth." [Id. at 249-50.]
We found the State's comments such as "'[t]he particular drug problem that we have in this country, particularly in Newark,' and 'the war on drugs' were entirely irrelevant to the police witnesses' credibility" and "were only a thinly-veiled attempt to inflame the jurors by identifying defendant with matters of public notoriety as to which no evidence was or could have been ever introduced." Id. at 251. Viewing the totality of the State's comments we concluded they were "so inflammatory as to constitute plain error." Ibid.
From our review of this matter, we discern the majority of the State's comments referencing the "so-called war on drugs" was presented in the context of commenting on the voir dire examination and the jurors' response to the question regarding the war on drugs. Additionally, the reference was made in the context of the responsibilities of the SEU officers. The State highlighted the police witnesses' specialization in combating open air street crime, which included drug sales. The prosecutor's remarks did not attempt to enlist the jury in combating illicit drug sales or buttress the officers' credibility because they were soldiers fighting that battle. Thereafter, the prosecutor's comments fairly evaluated the witnesses' testimony noting the jury must assess the facts and determine credibility of all witnesses in assessing its findings.
Unlike the comments in Holmes, the State's remarks did not evoke an objection from the defense, strongly suggesting their context was not offensive or improper. See Josephs, supra, 174 N.J. at 124. Moreover, the evidence of defendant's guilt weighed heavily in favor of the State. Thus, we conclude the comments were not "clearly capable of producing an unjust result." R. 2:10-2. See Macon, supra, 57 N.J. at 335 (finding prosecutorial misconduct would not have altered the jury's finding because of the overwhelming trial evidence of defendant's guilt).
Defendant next argues the prosecutor's opening argument impermissibly interjected opinion on defendant's guilt. Defendant earmarks this passage to support his assertion:
[Y]ou're going to make up your mind of what actually happened on that night. You're going to judge the credibility of the witnesses, you're going to be able to look at the evidence. You're going to be able to take it all in and then eventually you're all going to be able to go in the back and deliberate over all of us.
And at the end of that deliberation, I submit that you're going to come to the same conclusions that I am and that is what the State aims to prove is that Mr. James Randall did, in fact, possess cocaine, he did, in fact, possess that cocaine with the intent to distribute it; and while doing so was, in fact, on or within 500 feet of a public park.
Following our review we reject defendant's contention.
"[I]t is improper for the prosecutor to declare his individual or official opinion or belief of a defendant's guilt in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence." Wakefield, supra, 190 N.J. at 440. This differs considerably from statements that merely urge a finding of guilt, based on the evidence and application of the court's instructions of the law.
Here, the prosecutor preceded the challenged remarks by outlining the proposed witness testimony and requesting the jurors listen to the evidence and apply their common sense when evaluating credibility. The State carefully explained the jury was to independently "make up [its] mind of what actually happened on that night" after hearing all the evidence. We conclude the prosecutor's challenged remarks amounted to no more than argument based on the evidence of record. The lack of objection also suggests the remarks were not believed prejudicial when made. See State v. R.B., 183 N.J. 308, 333 (2005) (quoting Frost, supra, 158 N.J. at 83); State v. Jang, 359 N.J. Super. 85, 96 (App. Div.), certif. denied, 177 N.J. 492 (2003). We find no error.
Defendant also argues the prosecutor's summation impermissibly interjected his opinion regarding the credibility of the State's police and expert witnesses. Defendant points to these statements:
Now, let's talk about Mr. Greer for a second because defense counsel kind of brings that up and keeps on throwing that out there don't forget Mr. Greer, don't forget Mr. Greer and I believe defense counsel's words were, it doesn't pass the smell test. Mr. Greer is not even arrested.
Well, we know why Mr. Greer wasn't arrested, don't we? Because they said nothing was found on Mr. Greer. They had no reason to arrest Mr. Greer, they had no probable cause to arrest Mr. Greer . . . .
I think the police were very honest also in saying that there was a lot going on, there was a lot going on. Mr. Greer was patted down, nothing was found on him, eventually he was told that he could go because they were busy dealing with Mr.
Randall who did have something on him.
It is improper for a prosecutor to voice a personal opinion as to the veracity of a witness, thereby lending the support of his or her governmental office to the testimony of that witness.
Wakefield, supra, 190 N.J. at 440. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). Succinctly, the State may not "interfer[e] with the jury's right to make the credibility determination." Frost, supra, 158 N.J. at 88.
We do not agree with the notion that the prosecutor vouched for the witnesses' credibility or referred to matters outside the record. Rather the State's comments responded to defendant's implicit attack on police witnesses' credibility and the officers' recollection of events. See State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.) (stating "[a] prosecutor may respond to an issue or argument raised by defense counsel"), certif. denied, 144 N.J. 587 (1996). The prosecutor's remarks on this issue constituted fair comment on the evidence presented. See Frost, supra, 158 N.J. at 82; State v. Harris, 141 N.J. 525, 559 (1995). We perceive nothing improper about these comments.
The second series of arguments presented by defendant challenge several evidential rulings. Again, because no objections were offered at trial, our review examines whether an error occurred and if so, whether it was clearly capable of creating an unjust result. R. 2:10-2.
First, defendant argues the trial court erred in permitting the State, in the guise of a hypothetical question, to elicit Lieutenant Leon's opinion on the ultimate issue for the jury's determination, that is, whether defendant possessed the cocaine with intent to distribute. We disagree.
Lieutenant Leon's testimony largely concerned the various forms of cocaine, the processing of the drug for ingestion, and the various ways the substance is sold (rock form versus small amounts of powder). Through the use of a hypothetical, Lieutenant Leon expressed his opinion regarding what inferences should likely be drawn from the quantity and packaging of narcotics found in defendant's possession. The thrust of Lieutenant Leon's testimony was that someone who possessed three small packets of crack cocaine hidden in a weighty object, but who did not have a heat source to prepare the narcotic for ingestion, likely intended to distribute the CDS. He opined a user would buy a rock of the same weight for less money and break it down himself rather than buy small packets as described in the hypothetical.
N.J.R.E. 702 permits expert testimony where such testimony will assist the jury in understanding the evidence or determining a fact in issue. The necessity for and admissibility of expert testimony is generally within the sound discretion of the trial judge. State v. Berry, 140 N.J. 280, 293 (1995).
The Supreme Court has long held that expert testimony in drug cases is generally to be admitted, provided the trial court is satisfied the testimony will assist the jury in resolving a material dispute of fact. Id. at 301. An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged, State v. Odom, 116 N.J. 65, 77 (1989), but may express an opinion which "embraces an ultimate issue to be decided by the trier of fact." State v. Summers, 176 N.J. 306, 312 (2003) (quoting N.J.R.E. 704).
Odom, supra, established the standard practice employed when the State relies on an expert to express an opinion on the issue of an intent to distribute CDS. 116 N.J. at 79. The Court evaluated the use of a hypothetical question patterned after facts presented at trial accompanied by a query to the expert whether, in his opinion, the drugs described in the stated hypothetical were possessed for the purpose of distribution or personal consumption. Id. at 80-81.
Since Odom, the Court has approved the use of the factually aligned hypothetical in CDS distribution cases. State v. Reeds, 197 N.J. 280, 292-93 (2009); State v. Nesbitt, 185 N.J. 504, 514 (2006); Summers, supra, 176 N.J. at 314-15; Berry, supra, 140 N.J. at 301. As the Court stated in Summers, supra:
Obviously, the expert must walk a fine line.
His or her opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," [Odom, supra, 116 N.J.] at 81, but it cannot contain an explicit statement that "the defendant is guilty of the crime charged under the statute." Id. at 80. [176 N.J. at 314-15.]
Our review of the trial transcript satisfies us that Lieutenant Leon's testimony, in response to the carefully crafted hypothetical,*fn2 fell within the bounds that the Court has recognized as proper. Id. at 314-15. The prosecutor's mirror-image hypothetical elicited Lieutenant Leon's opinion, which made no explicit reference to defendant's guilt.
The facts of the matter at bar are distinguishable from those presented in State v. Boston, 380 N.J. Super. 487, 493 (App. Div. 2005), certif. denied, 186 N.J. 245 (2006), which is relied upon by defendant. In Boston, the defendant was charged with second-degree conspiracy, N.J.S.A. 2C:5-2, "to violate laws respecting possession of heroin and cocaine and possession of those drugs with intent to distribute[.]" Id. at 488. The defendant was approached by a man on the street with whom she briefly conversed. Id. at 489. She then walked toward her co-defendant who entered a residence and retrieved something which he then gave to the defendant. Ibid. The defendant handed the object to the man who had approached her in exchange for money. Ibid. The police could not see the object exchanged and did not arrest the man who received the object. Ibid. When the defendant was arrested CDS was not in her possession. Id. at 493. Using a hypothetical mirroring the facts, the State's expert offered an opinion regarding the defendant's conduct, suggesting she was involved in a drug transaction. Id. at 491. We concluded the expert testimony was impermissible, as the opinion was designed "to fill in the gaps" of the direct evidence, by opining on the ultimate question of whether the defendant's conduct reflected she was selling CDS. Id. at 493 (quoting State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
In this matter, the State offered the officer's observations plus the cash in defendant's possession and the CDS seized from his vehicle. Moreover, Greer had neither money nor drugs when he was stopped. The testimony of Lieutenant Leon was not offered to fill gaps in the direct evidence, but to connect to connect the direct evidence to the State's proffer of defendant's conduct. Boston, supra, 380 N.J. Super. at 493-94.
The fairness of defendant's trial was further assured by Judge Covert's instructions to the jury. The trial judge explained the jury was "not bound" by Lieutenant Leon's expert opinion and told the jurors they should "give it the weight to which you deem it is entitled, whether that be great or slight or you may reject it." Judge Covert charged it was "always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exists." Finally, the trial judge reminded the jury it alone must determine defendant's guilt based upon the evidence presented.
We find the evidence did not impermissibly invade the province of the jury. The hypothetical posed and Lieutenant Leon's response thereto were properly admitted as they were limited to the facts adduced at trial and otherwise conformed to the guidelines set forth in Odom. We conclude there was no error infringing defendant's right to a fair trial.
Defendant next argues reversible error resulted from Sergeant Caruso's testimony that the SEU officers were patrolling the New Yorkshire area in response to "numerous complaints from residents about open air narcotics trafficking." In a related argument he asserts the officers' statements identifying Greer based on "prior contacts in the community" were "highly prejudicial." Defendant contends the admission of such impermissible hearsay violated his constitutional right to confront witnesses. See U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10. We reject these contentions.
In State v. Bankston, 63 N.J. 263, 268 (1973), the Court stated, "[i]t 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.'" However, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. To rebut a suggestion of arbitrary police action and avoid a hearsay violation, police may use the phrase "based on information received" to explain their subsequent actions, so long as the statements do not imply a defendant has been implicated in the crime by an unknown person. State v. Branch, 182 N.J. 338, 352 (2005). See also State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975) (finding it was not reversible error for an officer to testify a tip from a confidential informant caused him to go to the address where people were selling cocaine), certif. denied, 70 N.J. 143 (1976).
Sergeant Caruso's comments referencing "numerous complaints from residents about open air narcotics trafficking and we were just out there to enforce the laws and do the investigations[,]" did not implicate defendant. We disagree with defendant's argument that the logical implication of the statement was likely to have led the jury to conclude that police had additional evidence of defendant's guilt. Bankston, supra, 63 N.J. at 271. Sergeant Caruso specifically denied he was looking for a particular person, stating his basis for acting in general terms, which "did not directly or by necessary inference implicate defendant." Long, supra, 137 N.J. Super. at 134.
Turning to the statements related to Greer's identification, defendant references Sergeant Caruso's testimony that he observed defendant speaking to someone with whom he was "familiar with through prior contacts in the community"; Patrolman Comegno's statement he was "familiar with" Greer from previous contacts; and Patrolman Bright's expression he was "familiar with [Greer] from previous contacts."
As noted, "witnesses may testify that they took certain investigative steps based 'upon information received.'" State v. Luna, 193 N.J. 202, 217 (2007) (quoting Bankston, supra, 63 N.J. at 268-69). "But they cannot repeat specific details about a crime relayed to them by a radio transmission or another person without running afoul of the hearsay rule." Ibid.
The officer's statements were innocuous and did not create an inference of criminal activity or suggest Greer was a "known criminal." In fact, it was the defense that connected Greer to illicit conduct during the cross-examination of Patrolman Bright, who was asked: "And you had had prior knowledge of [Greer] from past drug transactions, drug investigations?" The officer did not respond affirmatively but mentioned his familiarity was from "past contacts in the community." When pressed to elaborate on these community contacts, Patrolman Bright stated "disorderly persons, open alcohol, just past contacts in the community." We find no error.
Defendant also contends he is entitled to a new trial because Sergeant Caruso and Patrolman Comegno testified the area in which he was arrested was a known "high crime" area. We conclude the argument lacks sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(2). We note only that the statements cited by defendant as prejudicial were rationally related to police experience and did not specifically implicate defendant.
In his next challenge, defendant argues the trial court erred in denying his motion for acquittal at the close of the State's evidence, Rule 3:18-1, because a reasonable jury could not have found him guilty of the charges beyond a reasonable doubt. We disagree.
In deciding a motion for a judgment of acquittal, the trial judge must review the sufficiency of the evidence and determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975). The trial judge must determine whether the State has presented sufficient evidence, viewed in its entirety, while giving the State the benefit of all of its favorable testimony and inferences which reasonably could be drawn therefrom, to enable a jury to find the essential elements of the offense beyond a reasonable doubt. R. 3:18-1; State v. Martin, 119 N.J. 2, 8 (1990); Reyes, supra, 50 N.J. at 458-59.
We apply the same standard that binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). Thus, under Reyes, supra, a motion for judgment of acquittal is warranted where: 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.
[50 N.J. at 459].
In this regard, "'a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.'" State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Governed by these standards, we conclude the State's direct and circumstantial proofs were sufficient to warrant defendant's convictions for drug distribution within a school zone and possession of CDS.
In denying defendant's motion Judge Covert listed the State's proofs establishing the elements of the charged offenses, upon which "a reasonable jury could find guilt . . . beyond a reasonable doubt[,]" Reyes, supra, 50 N.J. at 459, including: eyewitness testimony defendant "had a bag in hand," several items visible in defendant's car were "related to the CDS," the potential exchange with Greer, expert testimony regarding the quantity and packaging of the CDS and "the location which [was] stipulated through the [city] map." These findings are fully supported by the trial record and the court properly applied the applicable legal standard.
Defendant alternatively asserts there was insufficient corroboration of the officers' testimony with objective proof such as photographs, video or audio recordings. This is rejected as without merit. At this juncture in the case, the evidence presented included the officer's testimony, which, after receiving all favorable inferences, supported a finding of guilt beyond a reasonable doubt on all charges.
Defendant cites as error the trial judge's instruction to the jury regarding the stipulated facts, asserting she failed to advise the jury it was free to either accept or reject the stipulations. No objection to the charge was asserted at trial, so we reverse only if we find plain error. R. 2:10-2. As related to a jury charge, plain error has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
We have made it clear that "in a criminal case, if facts are stipulated, the judge should not tell the jurors that they are 'bound' by such stipulated facts, if to do so would result in a directed verdict of any element of an offense charged." State v. Wesner, 372 N.J. Super. 489, 491 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). "A stipulation of fact is nothing more than evidence that is uncontroverted." Id. at 494.
We review the "totality of the [trial court's] instructions" when considering whether the court "direct[ed] a verdict on any element of the charges against [a] defendant," noting a faulty jury charge will not necessarily result in reversible error. Id. at 495. See also State v. Torres, 183 N.J. 554, 564 (2005) (stating an appellate court must read and review the jury charge in its entirety). Reversal is not warranted if a charge "does not constitute directing a verdict," and is otherwise ameliorated by proper charges instructing "the jury that it was required to find every element of every charge proven beyond a reasonable doubt in order to convict defendant, that the burden never shifts to the defendant, and that the State has the burden of proving defendant guilty beyond a reasonable doubt." Wesner, supra, 372 N.J. Super. at 494.
In the charge to the jury, the court clearly outlined defendant's presumption of innocence, the State's burden of proof which never shifts to defendant, and the necessity for the State to prove every element of each offense beyond a reasonable doubt. Although no specific charge explained undisputed facts "can be accepted or rejected[,]" id. at 495, the court did not "direct a verdict" or state the jury was bound by the stipulations. Further, the trial judge emphasized the jury's duty as fact-finder to be "the sole and exclusive judges of the evidence," to weigh the evidence, determine credibility of witnesses, and determine the weight to be attached to the testimonial evidence. We find no reversible error.
Based upon our examination, we find defendant's arguments of error without merit. Accordingly, we need not further address his assertion that the cumulative effect of various errors denied him a fair trial, according to State v. Orecchio, 16 N.J. 125, 129 (1954) (recognizing the cumulative effect of many otherwise inconsequential errors can potentially render a trial unfair); State v. Allen, 308 N.J. Super. 421, 431 (App. Div. 1998) (cumulative effect of errors in jury charge created unfair result).
We conclude our review by considering the points raised by defendant as to the sentence imposed. Initially, we note our review of sentences is limited. State v. Miller, 205 N.J. 109, 127 (2011). "Although 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]' 'when reviewing a trial court's sentencing decision, an appellate court may not substitute its 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)) (citations omitted). 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." Id. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984). Following our review, we are not persuaded the court misapplied its discretion.
Defendant asserts the trial judge did not follow the guidance provided by the Court in State v. Pierce, 188 N.J. 155 (2006), thus requiring our remand for re-sentencing. Although defendant concedes he was eligible for an extended term and the State proved the statutory requirements of N.J.S.A. 2C:44-3(a), permitting the imposition of a discretionary extended term, he contends the trial judge never "engage[d] in a separate and distinct analysis on the record as to whether the aggravating and mitigating factors supported the imposition of sentence within the extended term[.]" We disagree.
When discerning the length of the imposed term, the Court in Pierce, supra, instructed that if a defendant's prior criminal record renders him or her eligible for an extended term under the statute, "then the top of the range of sentences applicable to the defendant . . . becomes the top of the [extended-term] range" prescribed by N.J.S.A. 2C:43-7(a). 188 N.J. at 168. "[T]he range of sentences available for imposition" is expanded such that "it reaches from the bottom of the original-term range to the top of the extended-term range." Id. at 169. A defendant convicted of a second-degree crime who is eligible to receive a discretionary extended-term could be subject to a sentence between five and twenty years. Id. at 168.
"Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public." Ibid. In doing so, the sentencing court has the discretion to decide that the appropriate base term lies within the extended-term range; however, imposing a sentence within that enhanced range is not mandatory. Id. at 169.
In this case, Judge Covert made specific findings regarding the application of pertinent aggravating factors and the weight accorded each, including: the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9); and "consideration of the deterrent need to protect the public." Pierce, supra, 188 N.J. at 168. She did the same regarding the one applicable mitigating factor, that is, defendant's incarceration would be a hardship to his dependents, N.J.S.A. 2C:44-1(b)(11), which was afforded "very slight weight." In balancing these factors on a qualitative and a quantitative basis, the trial judge was "clearly convinced that the aggravating factors given the heavy weight attributed to them and the very minimal weight attributed to [the] mitigating factor  that the aggravating factors do substantially outweigh the mitigating factors." She concluded this finding "heightens the range . . . within which to sentence [defendant] within the extended term eligibility and allows for a parole ineligibility period." Judge Covert then imposed sentence of sixteen years imprisonment, half of which must be served prior to parole eligibility.
We reject defendant's contention that Judge Covert abused her discretion by failing to consider the minimum sentence. Her comments reflect she was well aware of the range of the possible sentence but found the aggravating and mitigating factors analysis justified "a sentence above the minimum" and one within the extended term range subject to a parole ineligibility period.
We find no abuse of discretion. We will not interfere with the length of defendant's extended-term sentence.
Defendant additionally maintains the trial court improperly imposed a period of parole ineligibility as she neglected to reanalyze the aggravating and mitigating factors. See State v. Dunbar, 108 N.J. 80, 88 (1987), overruled on other grounds by State v. Pierce, 188 N.J. 155 (2006).
Dunbar instructs that in order to impose a period of parole ineligibility, the sentencing court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." Id. at 92. If so, the court is free to fix a minimum period of custody, not to exceed one-half of the term of incarceration imposed, before defendant becomes parole eligible. Ibid. "In imposing parole ineligibility the sentencing court 'shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.'" Id. at 89 (quoting N.J.S.A. 2C:44-1(f)(1)).
The notion that the court must specifically restate aggravating factors supporting parole ineligibility is legally unsupportable. "It is not necessary that every sentence be a discourse." Id. at 97. Dunbar requires a sentencing court to explain the rationale for imposing parole ineligibility. Ibid. (permitting review of a trial court's aggregate analysis to sustain imposition of a period of parole ineligibility because the aggravating factors clearly and substantially outweighed the mitigating factors).
Judge Covert's combined articulated analysis integrated applicable aggravating and mitigating factors to her finding regarding the justification for imposing a period of parole ineligibility. Dunbar, supra, 108 N.J. at 92.
Defendant's final challenge suggests the trial court imposed a manifestly excessive sentence based upon unsupported findings of fact and an improper balancing of aggravating and mitigating factors. This argument maintains the articulated aggravating factors were inapplicable because defendant had no indictable convictions from 1994 to 2006; the court did not afford proper weight to the mitigating factor applied; and failed to consider whether "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8).
In our limited review of the sentencing term imposed, we will not substitute our judgment for the trial court. State v. Bieniek, 200 N.J. 601, 608 (2010). Modification is only necessary when a trial judge mistakenly exercises his or her broad discretion by imposing a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 363.
Judge Covert thoroughly delineated her findings of all applicable aggravating and mitigating factors as well as the basis for rejecting other argued mitigating factors, including the period when defendant was conviction free. She not only considered the nature and seriousness of defendant's convictions, but also made an evaluative judgment "about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 (2006). Specifically addressing the significant period in defendant's life where he remained law abiding, she found since 2006 he had turned back to criminality as supported by various municipal court offenses and two recent indictable convictions in 2006 and 2008.
Finally, we determine the trial court's factual findings regarding the accepted and rejected mitigating factors are unassailable and conclude the length of the sentence in light of these determinations is grounded upon "'competent credible evidence in the record,'" which does not shock our judicial conscience. Miller, supra, 205 N.J. at 127 (quoting Bieniek, supra, 200 N.J. at 608). Accordingly, defendant's sentence will not be disturbed on appeal. Ibid.