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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...