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State of New Jersey v. Nagy A. Ibrahim

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NAGY A. IBRAHIM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0227.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2011

Before Judges Sabatino, Ashrafi, and Fasciale.

After a jury trial, defendant Nagy A. Ibrahim was convicted of first-degree distribution of a controlled dangerous substance ("CDS"), specifically cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); three counts of second-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); and three counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1). At sentencing, the trial court granted the State's motion for an extended term, merged the second-degree and third-degree convictions into the first-degree conviction, and imposed a fifty-five-year prison term with a twenty-five year period of parole ineligibility.

Defendant now appeals his convictions and sentence on various grounds, principally contesting the State's use of a confidential informant in the investigation that led to his prosecution. We affirm the convictions, but remand for further consideration of the sentence.

I.

This prosecution arose out of defendant's illegal distribution of crack cocaine to a confidential informant, John Doe,*fn1 on three separate occasions. While Doe was being held in the county jail on drug charges, he indicated that he was interested in cooperating with law enforcement authorities. His offer of cooperation was accepted.

Over time, Doe became what the State's lead investigator described as a "highly reliable" cooperating witness. Doe ultimately assisted the federal and state governments in approximately twenty-five investigations involving first-degree and second-degree offenses, including the present case. Initially, Doe received a reduced sentence in exchange for his cooperation. Then, after Doe had finished what the record describes as "working off his time," he received certain cash payments in connection with his continued services as a confidential informant.

Detective Keith Carmack of the Atlantic County Prosecutor's Office was the lead investigator in defendant's case. Carmack is very experienced in narcotics investigations. He estimated that, during his ten years in law enforcement, he had investigated "[c]lose to a thousand" cases involving the illegal distribution of drugs, serving as the primary investigator in "hundreds." His testimony at defendant's trial included general background about the government's use of confidential informants in drug cases, a key focus of the present appeal.

Carmack testified that he has used confidential informants hundreds of times. He explained to the jury that an undercover drug purchase typically involves "a law enforcement officer who is acting in an undercover capacity in one form, who possibly gets introduced to an individual with the possibility to purchase either drugs or guns." He noted that investigators often use confidential informants because it is difficult to introduce an undercover officer in cases involving so-called "mid-level" drug dealers, such as those who deal in quantities of multiple ounces of cocaine.

Carmack testified that a confidential informant commonly would be used to perform either a "controlled buy"*fn2 or a "wired sale." A "controlled buy," according to Carmack, involves "an informant who is not wired with a body wire, so we can't hear the conversation that is going on . . . . We have that [informant] go into a house, a residence, a store, whatever the place may be; the purchase is made, they come out[.]" A "wired sale" by comparison, is a recorded drug transaction, which "gives the person recording it the ability to hear what is going on."

According to Carmack, before a confidential informant is used in an investigation, an "overhear" is conducted to verify the information provided by the informant. An overhear involves "listening in on a conversation that is placed from the informant to whatever individual . . . [is] the 'target' at this point of that investigation."

Carmack acknowledged that, prior to conducting a wired sale with a confidential informant, the prosecutor must approve a "consensual intercept" authorizing the recording. After obtaining authorization for such a consensual intercept, investigators would have the informant set up an initial buy.

During his initial session with Detective Carmack concerning the present case, Doe provided him with defendant's cell phone number and a description of defendant. Doe indicated that defendant was selling cocaine that he could purchase. After conducting an overhear that confirmed Doe's statements, Carmack obtained authorization for a consensual intercept from an assistant prosecutor.*fn3

Eight days later, on September 19, 2007, Doe placed another recorded call to defendant, this time to set up a purchase. Carmack then provided Doe with $1600 to purchase two ounces of crack cocaine from defendant.

Carmack stated that Sergeant Robert Kelly from the prosecutor's office trailed Doe to the agreed-upon meeting place in the parking lot of an Atlantic County inn. At the same time, a detective from the prosecutor's office and an FBI special agent conducted observational surveillance.

According to Carmack, he personally observed Doe pull into the inn's parking lot. He saw defendant emerge from the inn and get into Doe's vehicle. Doe's vehicle was then driven to a spot on a nearby street about a block away. Defendant then got out of the vehicle after making arrangements to meet Doe at a local convenience store.

After the purchase transaction took place at the convenience store, Sergeant Kelly followed Doe back to the meeting location, where Doe and his car were both searched by Carmack. Doe gave Carmack a plastic bag containing an "off-white rocky substance." A subsequent laboratory test confirmed that the bag contained over 55.7 grams of cocaine.

The second wired sale took place on October 4, 2007. On that day, investigators again met with Doe, who placed another recorded call to defendant. Carmack provided Doe with the funds to make the purchase, and Doe and defendant again arranged to meet at the inn.

On this second occasion, Carmack witnessed Doe pull into the parking lot. Shortly after that, Carmack observed a car pull into the inn's parking lot and park next to the passenger side of Doe's car. Defendant got out of the car and got in the passenger side of Doe's car. He then went back to his vehicle and left the parking lot. After Doe returned to the designated safe location, he turned over one-and-a-half ounces of crack cocaine that he had just purchased from defendant to the investigating officers. A subsequent laboratory test measured the quantity of that cocaine to be 41.7 grams.

The third and final wired sale occurred on October 22, 2007. Another detective conducted an overhear that day on a phone call that Doe made to defendant. Detective Carmack then recorded a second phone call that Doe made to defendant that same day, seeking to arrange a purchase at a local mall.

Detective Carmack provided Doe with $1600 to purchase two ounces of crack cocaine from defendant at the mall. Carmack testified that, during this third wired sale, he personally observed Doe walk down an aisle in the parking lot and stop in front of the mall entrance. He then saw defendant walk up to the passenger side of a vehicle, accompanied by "a young male between eight to ten years old." Carmack saw defendant open the car's passenger side door and lean inside. Defendant and the youth then walked away and entered the mall.

Sergeant Kelly followed Doe back to the designated safe location, where Doe and his car were both searched by another detective. This time, Doe turned two ounces of crack cocaine over to Detective Carmack. A subsequent lab test measured this third quantity to be 55.3 grams of cocaine.

At trial, in addition to Detective Carmack, the State also presented testimony from Doe and five other officers who had participated in the investigation. Defendant did not testify and did not present any witnesses on his own behalf. The parties stipulated that 152.6 grams of cocaine (or about 5.362 ounces) were collectively recovered as a result of the investigation.

Defendant was convicted by a jury on counts one through seven in the indictment. As previously stated, he received a fifty-five-year extended sentence.

This appeal followed.

II.

On appeal, defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S PAYMENTS TO ITS FACT WITNESS FOR TESTIMONY. (Not Raised Below) POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS THAT THEY MAY CONSIDER THE STATE'S PAYMENTS TO ITS FACT WITNESS AND THAT THEY MAY CONCLUDE THAT THE WITNESS IS NOT CREDIBLE BECAUSE HE WAS PAID FOR HIS TESTIMONY. (Not Raised below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO DISCLOSE REQUESTED WITNESS PAYMENT RECORDS.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CAUSATION EVEN THOUGH CAUSATION WAS CENTRAL TO THE CASE. (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION TO CONVICT IF THE STATE PROVED THE ELEMENTS OF THE OFFENSE, EFFECTIVELY PRECLUDING A CONSIDERATION OF THE ENTRAPMENT DEFENSE. (Not Raised below)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE IMPUGNING THE DEFENDANT'S CHARACTER. (Not Raised Below)

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S INVESTIGATOR TESTIFIED THAT THE PAID INFORMANT WAS CREDIBLE BECAUSE HE HAD PROVIDED RELIABLE INFORMATION IN [TWENTY-FIVE] PRIOR CASES. POINT IX

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY INCRIMINATING EVIDENCE SHOWING A CRIMINAL DISPOSITION, THEREBY UNDERMINING THE ENTRAPMENT DEFENSE. (Not Raised Below)

A. THE STATE ERRONEOUSLY PROFFERED HIGHLY PREJUDICIAL HEARSAY EVIDENCE THAT PROVED PREDISPOSITION.

B. THE STATE FAILED TO LAY A PROPER FOUNDATION SHOWING THAT THE HEARSAY DECLARANT [DOE] HAD KNOWLEDGE OF PRIOR DRUG DEALING BASED ON PERSONAL OBSERVATIONS. POINT X

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS, INCOMPLETE AND PREJUDICIAL INSTRUCTION ON THE LAW OF AGGREGATION OF DRUG AMOUNTS. (Not Raised Below)

POINT XI

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR.

7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL CONSENSUAL INTERCEPT.

POINT XII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION TO SEVER OFFENSES.

POINT XIII

THE DEFENDANT'S MOTION [FOR] A NEW TRIAL SHOULD HAVE BEEN GRANTED.

A. THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE PROSECUTOR'S VIOLATION OF HIS OBLIGATIONS.

B. SENTENCING SHOULD HAVE BEEN POSTPONED. POINT XIV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below)

POINT XV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT IMPROPERLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

C. THE APPLICATION FOR AN EXTENDED TERM WAS CAPRICIOUS AND ARBITRARY, AND THE IMPOSITION OF AN EXTENDED TERM WAS EXCESSIVE, CRUEL AND UNUSUAL.

We now examine these points, combining several of them that are closely related.

A.

Defendant's first and primary arguments focus upon the State's use of Doe as a confidential informant and the payments that were made to Doe in that capacity. Defendant argues that the State improperly paid Doe for his testimony as a "fact witness," in violation of constitutional and ethical norms. In a related vein, defendant contends that the trial court should have specifically instructed the jurors that they could find Doe not to be a credible witness because of the payments that he received. Defendant further argues that he was deprived of due process because the prosecutor did not disclose to his counsel all of the records of the payments that were made to Doe sufficiently in advance of the trial. We reject these contentions.

It has long been recognized that a confidential informant who receives compensation from the government for his participation in a criminal investigation may provide relevant testimony at an ensuing trial. See Hoffa v. United States, 385 U.S. 293, 311-12, 87 S. Ct. 408, 418-19, 17 L. Ed. 2d 374, 387-88 (1966). There is no blanket prohibition on such testimony just because the informant was paid. Instead, the informant's financial interest in receiving such payments "'is properly a matter for the jury to consider in weighing the credibility of the informant.'" United States v. Gonzales, 927 F.2d 139, 144 (3d Cir. 1991) (quoting United States v. Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979)). Accordingly, defense counsel is entitled, by way of impeachment, to cross-examine the informant-witness at trial with respect to the terms of his or her cooperation agreement. State v. Long, 119 N.J. 439, 489 (1990); see also United States v. Harris, 210 F.3d 165, 167 (3d Cir. 2000).

Here, prior to trial, defendant's attorney requested that the prosecutor disclose how much Doe had been paid for his services as a confidential informant, as contemplated by Long, supra, 119 N.J. at 489 (noting that such financial disclosure enhances the applicable procedural safeguards). The prosecutor responded by disclosing the terms of Doe's cooperation agreement, Doe's entire criminal history, and various details about how Doe was paid in defendant's case and in the other investigations in which he assisted. These disclosures were provided before the opening statements at trial commenced.

The State disputes defendant's claim that Doe was paid in exchange for his testimony and that, in effect, the prosecutor suborned perjury from Doe. The State acknowledges that, in recognition of Doe's cooperation, Doe received time credit from his sentence. After such credits were no longer possible, the State paid Doe what it characterizes as a "nominal amount" of up to $150 per controlled buy.

These aspects of Doe's cooperation were spotlighted by defense counsel at trial. In particular, on cross-examination, Doe readily acknowledged that, in exchange for assisting the police, he received cash payments of $125 to $150 per controlled buy. He further acknowledged that he also received a suspended sentence on several indictable charges that he had pending. Defense counsel also cross-examined Sergeant Kelly on the subject. Kelly confirmed that, in defendant's case, as with the other cases in which Doe had assisted the police, he received $125 to $150 per controlled buy.

Defendant maintains that these financial arrangements with Doe violated his right to due process. He further argues that the payments transgressed Rule of Professional Conduct ("RPC") 3.4(b), which prohibits a lawyer from "falsify[ing] evidence, counsel[ing] or assist[ing] a witness to testify falsely, or offer[ing] an inducement to a witness that is prohibited by law." (emphasis added). We disagree. No such constitutional or ethical violations have been established here.

It is noteworthy that defendant's trial counsel did not move in limine to bar Doe's trial testimony. Nor did defense counsel object to Doe's direct examination based upon his status as a paid informant. Defendant's trial counsel eschewed such a preemptive objection. Instead he chose, presumably for strategic reasons, to elicit the details of Doe's cooperation on cross-examination, in an effort to impeach Doe's credibility and hoping perhaps to evoke disdain for the financial arrangements.

Defendant's failure to raise a categorical objection to Doe's testimony as a paid informant until the present appeal implicates principles of invited error. See State v. Sykes, 93 N.J. Super. 90, 94-95 (App. Div. 1966). The objection should have been raised at trial, where the court and opposing counsel could have addressed it and taken any necessary remedial action. Instead, defendant evidently tried to obtain a tactical advantage by waiting to see how the jury would react to the arrangement with Doe. Even if we do not treat this as a situation of invited error, defendant's failure to object at trial, at the very least, means that his current appellate attack upon the State's use of Doe as a paid informant is reviewed for "plain error." See State v. Macon, 57 N.J. 325, 336 (1971).

The fundamental flaw in defendant's present challenge is his repeated assertion that Doe was paid for his "testimony." He was not. He was paid for his services as a confidential informant. The sums of up to $150 paid to Doe for each controlled purchase of narcotics were not illegal or unethical. Rather, such payments to informants are commonplace in the context of narcotics investigations. Doe's compensation was not contingent upon the outcome of the case. The flat fees paid to him for each controlled buy were neither exorbitant nor unethical. There is no indication that Doe was counseled to testify falsely. Defendant was freely permitted to use the payments as fodder for impeachment of Doe, and his trial counsel availed himself of that opportunity.

We further reject defendant's claim that he received insufficient discovery regarding the terms of Doe's compensation. The disclosures supplied were reasonably extensive and provided ample information for defense counsel to impeach Doe through cross-examination. Although the disclosures should have been made by the prosecutor's office sooner, they were made in time for defense counsel to take advantage of them at the trial.

Defendant's related challenge to the sufficiency of the jury instructions with respect to Doe's credibility is also misplaced. His trial counsel did not object to the jury instructions issued by the court on credibility. Nor did trial counsel request any special instructions in the charge conference concerning the State's use of paid confidential informants. Because no such request was made at trial, this issue also is subject to a plain error analysis. See R. 2:10-2. In doing so, we consider the jury charge as a whole. State v. R.B., 183 N.J. 308, 324-25 (2005).

Here, the trial court issued the customary model jury charge delineating the positive and negative factors that a jury may consider in assessing a witness's credibility. See Model Jury Charge (Criminal), "Criminal Final Charge - Credibility of Witnesses" (2003). Those standard instructions request that the jury consider, among other things: "the witness's interest in the outcome of the trial[,] if any," and "the possible bias, if any, in favor of the side for whom the witness testified." Ibid. These instructions, although general in nature, were reasonably sufficient to guide the jury in its appraisal of Doe's credibility. Although a more specific instruction addressed to Doe's stake as a confidential informant would have been helpful, see, e.g., United States. Villafranca, 260 F.3d 374, 379 (5th Cir. 2001), the absence of such an unrequested special instruction here does not compel a new trial.

B.

Defendant next contends that the trial court omitted what he characterizes as a "crucial" instruction on causation from the jury charge on his entrapment defense. Again, this is an issue guided by a plain error analysis because it was not raised below. R. 2:10-2; Macon, supra, 57 N.J. at 336.

The statutory affirmative defense of entrapment must be proven by a preponderance of the evidence. N.J.S.A. 2C:2-12b;

State v. Rockholt, 96 N.J. 570, 581 (1984). The merits of the defense of entrapment are to be decided by the trier of fact. N.J.S.A. 2C:2-12b; Rockholt, supra, 96 N.J. at 581. Among other things, the defendant must prove the subjective element of the defense, which requires demonstrating that the police conduct "'induce[d] or encourage[d]' [and] 'as a direct result, cause[d]'" the defendant to commit the subject offense. Rockholt, supra, 96 N.J. at 579 (quoting II New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Final Report 77 (1971)).

The determination of whether a defendant committed the offense "as a 'direct result'" of police conduct necessarily contemplates a determination as to whether the defendant was predisposed to commit the crime. See Rockholt, supra, 96 N.J. at 579 (explaining that a defendant predisposed to commit a crime would "probably be unable" to establish that the crime was "a direct result" of police action). Although the statute does not define a "direct result," such a "direct" result connotes more than even a "but for" result. See Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:2-12 (2011).

The instruction issued by the trial court in this case on entrapment stated, in pertinent part, as follows:

Defendant has asserted the affirmative defense of entrapment. I'm now going to give you the definition of that law. Defendant claims he was entrapped, that means he does not necessarily deny that he violated the criminal laws. Therefore, if you find beyond a reasonable doubt that he did commit the crimes charged, you should then consider his claim that the law enforcement officials and their agents or informants caused him to commit the offense by method[s] that were contrary to legal standards.

Therefore, to establish entrapment as a defense the burden is on [] [d]efendant to prove by a preponderance of the evidence that a law enforcement [officer] either by himself or through an agent or informant did induce or encourage [] [d]efendant to commit the crimes, and as a direct result thereof, he did cause [] [d]efendant to commit the offenses charged.

Now, [] [d]efendant must prove by a preponderance of the evidence that he was induced or encouraged to commit the offenses by [the] law enforcement officer's informant, that is in this case [Doe], or by knowing, false representations which by their very nature created a substantial risk that the crime would be committed by an average person who was not otherwise ready to commit it. In addition, [] [d]efendant must prove that the police conduct in fact caused him to commit the crime. In other words, that the crime was a direct result of the police action. [Emphasis added.]

The trial court then instructed the jury about how to assess defendant's alleged predisposition to commit the crime:

The State has introduced evidence to demonstrate it believed that [] [d]efendant was not an innocent person who would not have committed the offense were it not for the inducement of law enforcement officers or their informant; that in fact []

[d]efendant was predisposed to commit the crime; therefore, for this purpose the Court has permitted the State to introduce for your consideration evidence of []

[d]efendant's previous convictions of crime related to the distribution of cocaine, and evidence regarding [] [d]efendant's knowledge and familiarity with certain aspects of drug dealing regarding weapons, stash boxes, money laundering, use of cars to mask involvement and the like. Now, whether such evidence along with other facts and surrounding circumstances shows a predisposition on the part of [] [d]efendant to commit the offense is for [you to] determine.

If you find that [] [d]efendant has been predisposed to commit the offenses even without law enforcement's particular inducement or participation, then [] [d]efendant's participation was not the direct result of the officers activity and the defense of entrapment has not been proven[,] and it is unavailable to him.

Entrapment is an affirmative defense.

This means that [] [d]efendant has the burden of proving it by a preponderance of the evidence, that means by the greater weight of the believable evidence.

These instructions are consistent with the statutory provisions of N.J.S.A. 2C:2-12, and they generally track the Model Criminal Jury Charges. See Model Jury Charge (Criminal), "Entrapment" (1982); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999); Pressler & Verniero, Current N.J. Court Rules, comment 81 to R. 1:8-7 (2012) (noting that the "[u]se by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error").

Defendant did not request that the trial court issue an additional special instruction on causation. The charge sufficiently explained the applicable legal elements and the burden of proof. Defendant is not entitled to a new trial because of the alleged omission of more guidance on principles of causation.

C.

Defendant next argues that the trial court failed to properly instruct the jury with respect to the elements of the offense of CDS distribution. He contends that the instruction on this subject was confusing and misleading and that it "created a firewall" that effectively precluded the jury from considering his entrapment defense. He argues that "[t]he trial court should have instructed the jurors that if the State proved each and every element of the offense beyond a reasonable doubt, it should not convict the defendant," but should instead consider the defense of entrapment. These arguments are without merit.

The trial court properly and comprehensively instructed the jury with respect to the elements of the offenses, the State's burden of proof, the use of the parties' stipulations, and defendant's affirmative defense of entrapment. The trial court also made the applicable burdens of proof exceedingly clear.

The court's instructions were consistent with the statutory elements of the offenses and the statutory elements of defendant's affirmative defense of entrapment. Once again, the instructions fairly track the Model Criminal Jury Charges. See Model Jury Charge (Criminal), "Distribution of a Controlled Dangerous Substance," "Unlawful Possession of a Controlled Dangerous Substance" (2008). Defendant did not request that the trial court issue an additional special instruction. A new trial with more specific jury instructions is not required.

D.

Defendant next contests the aggregation of the quantities of the drugs recovered in the three transactions with Doe. We discern no error in such aggregation.

Pursuant to N.J.S.A. 2C:35-5c, the quantities of drugs involved in several transactions may be aggregated in order to determine the grade of the participant's criminal offense. Such aggregation is permissible so long as it is noted in the indictment. N.J.S.A. 2C:35-5c; see also State v. Rodriguez, 234N.J. Super. 298, 306-10 (App. Div.), certif. denied, 117 N.J. 656 (1989). Specifically, the applicable statute on aggregation provides that:

Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity involved in individual acts of [distribution of CDS] may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of [distribution of CDS] was committed within the applicable statute of limitations. [N.J.S.A. 2C:35-5c.]

Here, defendant argues that the trial court's instruction to the jury on count seven of the indictment, which charged him with first-degree distribution of an aggregate quantity of five ounces or more of cocaine, was improper. He asserts that the instruction's use of the phrase "course of conduct" was "unduly vague and ambiguous." He further argues that the court should have instructed the jurors that they had to find beyond a reasonable doubt that the defendant participated in a "scheme" or a "course of conduct." He further contends that the trial court failed to tell the jury that a defendant must "knowingly" participate in a scheme or a course of conduct in order to justify aggregation. We disagree.

Aggregation is not, in and of itself, a criminal offense, but rather a means of measuring the severity of a drug dealer's conduct. It involves quantifying the total amount of drugs in a given case, when separate amounts were distributed by the defendant as part of an overall scheme or course of conduct. Cf. State v. Curry, 245 N.J. Super. 278, 282 (Law Div. 1989) (explaining that aggregation of drugs possessed by different persons requires a common scheme or enterprise to link those persons and the drugs).

With respect to count seven, the trial court properly explained to the jury that the applicable statute, read together with the indictment, required the State to prove beyond a reasonable doubt that: (1) the evidence is, in fact, cocaine;

(2) defendant distributed the cocaine on the dates alleged; and

(3) defendant acted knowingly or purposely in distributing the cocaine. The trial court then explicitly instructed the jury that: "if you found the defendant guilty of distributing cocaine, you must then determine the quantity of cocaine involved." The trial court reiterated that "[i]t's the State's burden to prove beyond a reasonable doubt the quantity of cocaine."

The trial court then instructed the jury:

You may aggregate the cocaine when you find that separate amounts of the cocaine were distributed according to a scheme or course of conduct by the defendant. If you determine that the cocaine was distributed according to a scheme or course of conduct by [] [d]efendant, the weight amounts may be added together to form a single total amount. [] Defendant may be found guilty of distribution of the aggregate quantity of cocaine. Therefore, you should consider everything [] [d]efendant did and said at the time and places from all the surrounding circumstances. Specifically, you must determine which one of the following quantities have been proven. It will again be clear in the verdict sheet. First consider the question [of] whether it was five ounces or more of cocaine including adulterants or dilutants or, number two, if you find that it was not that, then you should determine whether or not it was a half ounce or more including adulterants and dilutants.

This instruction properly explained to the jury how to determine the overall quantity of cocaine. Defendant stipulated to the quantities of cocaine involved in each of three separate incidents in this case. That quantity, which aggregated to 5.362 ounces, was charged in the indictment, as required by N.J.S.A. 2C:35-5c.

The trial court's aggregation charge was consistent with the statutory elements and essentially tracked the Model Criminal Jury Charge. See Model Jury Charge (Criminal), "Supplemental Charge to Offenses Set Forth in N.J.S.A. 2C:35-5" (1992). Defendant did not request that the trial court issue an additional special instruction. No such special instruction was required. The charge on aggregation was sufficiently clear, complete, and consistent with the law.

E.

Defendant next challenges the admission of certain portions of Detective Carmack's testimony. In particular, defendant argues that Carmack, who was called by the State as a lay rather than as an expert witness, should not have been allowed in his testimony to characterize defendant as a "mid to upper-echelon drug dealer." Defendant also contends that the court erroneously permitted Carmack to describe Doe as a "highly reliable" informant. Neither of these claims warrant relief.

We recognize that the opinion testimony of police officers who are not called as experts must be "firmly rooted in the [officers'] personal observations and perceptions" as lay witnesses. State v. McLean, 205 N.J. 438, 459 (2011); see also N.J.R.E. 701 (limiting admissible lay opinions to those that are "rationally based" upon perception and which will "assist in understanding the witness['s] testimony or in determining a fact in issue"). Those boundaries for lay testimony were not crossed here.

For reasons that are not obvious from the record, the State elected not to qualify Detective Carmack as an expert witness, despite his obviously-considerable experience in narcotics investigations. Nevertheless, Carmack's opinions were sufficiently grounded upon his own perceptions, drawn from his hearing of defendant's taped conversations with Doe and his field observations of the three drug transactions.

Carmack's testimony classifying the level of drug activity involved in this case was helpful to the trier of fact. The testimony helped to explain why the State had used the services of a confidential informant in this investigation, i.e., to establish a rapport and an atmosphere of trust with a suspected drug dealer who dealt in mid-range quantities or higher. Carmack's reference did not ascribe any particular "bad acts" to defendant. Cf. N.J.R.E. 404(b). Instead, his reference was background information that helped place the State's investigation in context.

The opinions offered by Carmack were more informative than inflammatory, and their probative value was not substantially outweighed by undue prejudice. See N.J.R.E. 403. The absence of such undue prejudice is consistent with the failure of defendant's trial counsel to object to the references or to move to strike them after they were uttered. See State v. Sharpless, 314 N.J. Super. 440, 456-57 (App. Div.), certif. denied, 157 N.J. 542 (1998). If any error occurred at all, such error was harmless in light of the other compelling proofs demonstrating defendant's participation in these multiple drug transactions. See Macon, supra, 57 N.J. at 336.

Similarly, we are not persuaded that defendant was unfairly prejudiced by the portions of Carmack's testimony describing Doe as a "highly reliable" confidential informant. Carmack's positive characterization of Doe is supported by his own documented interactions with Doe, as well as by Doe's past cooperation in dozens of federal and state drug investigations. Carmack's description of Doe's status as an informant was not presented as general character proof about Doe.

Although defendant's trial counsel initially raised a hearsay objection to Carmack testifying about the truth of his conversations with Doe -- an objection that was sustained -- defense counsel did not renew any objection when Carmack thereafter described Doe's reliability. Defendant has failed to show that he was so prejudiced by the detective's remarks so as to be deprived of a fair trial. This is not a situation of plain error

Lastly, Carmack's testimony relating that Doe had told the police he could purchase crack cocaine from defendant did not constitute inadmissible hearsay. That particular statement was not offered for its truth, but rather to explain the subsequent actions of the police investigation of defendant. See N.J.R.E. 801 (defining hearsay as statements offered for their truth). The testimony was also relevant, inasmuch as Doe testified at trial and defense counsel had launched an attack on his credibility during his opening statement.

F.

We turn to defendant's claim that the police intercepts of his wire communications with Doe were illegal because they were not based upon an authorization in written form. This argument lacks merit.

Pursuant to N.J.S.A. 2A:156A-8, written authorization is required for the police to initiate an interception of a wire communication to obtain evidence of criminal activity. However, the statute makes clear that such written authorization is not required for consensual intercepts, where "one of the parties has given prior consent to such interception." N.J.S.A. 2A:156A-4c. The trial court correctly applied this statutory exemption in ruling that the State was not required to have a written authorization before taping the conversations -- with Doe's consent -- between Doe and defendant. Consequently, the recorded conversations between Doe and defendant were lawfully obtained and were properly admitted into evidence.

G.

Defendant contends that the trial court improperly denied his pretrial motion to sever the multiple offenses charged in the indictment. He asserts that the denial of severance caused him undue prejudice, which is sufficient to justify a new trial. We disagree.

"The decision whether to sever an indictment rests in the sound discretion of the trial court." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (citing State v. Briley, 53 N.J. 498, 503 (1969)). Pursuant to the applicable rule, when "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation[,] the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b) (emphasis added).

As noted by our Supreme Court in applying these severance principles, "[c]entral to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). The rationale of this approach is that, "[i]f the evidence would be admissible at both trials, then . . . 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).

The three drug transactions that gave rise to defendant's indictment were all part of an overarching course of conduct that spanned less than five weeks. Through the indictment, defendant was given proper notice of the charged offenses and of the associated quantities of CDS that were aggregated. The charges were the by-product of a single criminal investigation. Even if each drug transaction had been tried separately, the evidence of each of the respective sales likely would have been admissible under Rule 404(b).

We detect no abuse of discretion in denying severance of these related offenses.

H.

Defendant argues that the trial court should have granted his motion for a new trial because his conviction was a manifest injustice. In this argument, defendant repeats his claim that the State unfairly withheld details from his counsel until the eleventh hour concerning Doe's compensation as a confidential informant.

A trial court's denial of a motion for a new trial shall not be disturbed on appeal "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. The court "shall not [] set aside the verdict of the jury as against the weight of the evidence unless . . . it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1; see also State v. Sims, 65 N.J. 359, 373-74 (1974). Defendant has not met this standard. In this regard, we adopt the cogent observations of the trial court in its bench opinion denying the new trial motion:

The evidence that it happened, that the informant had been paid for his behaviors and his cooperation, with a little walking around money, was brought out by the defense, what the State had provided to the defense, albeit perhaps at the last moment, but again, my view is [defense counsel] made very effective use of that information, even given at the last minute, and I don't find it to be a violation of Brady,*fn4 even [though] it was late to be handed over by the State, [it] didn't go to any exculpatory information. . . . [D]efendant was free to ask the witness anything he wished in cross-examination. I allowed great latitude during the trial, including to go into [] great detail, compensation for the time and number of criminal cases in which [Doe had] been previously involved. It's well settled law that the trial [c]court may only set aside a jury verdict as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses credibility, a manifest denial of justice clearly and convincingly appears. The jury's free to believe or disbelieve a wintess's testimony. The jury convicted this defendant after considering all of the evidence provided at trial. The jury's decision was not a manifest denial of justice under the law. In fact, it was justice carrying out what appeared to be a just and appropriate verdict given the very heavy weight of the evidence in this case. [Emphasis added.]

We also reject defendant's related claim that the trial court misapplied its discretion in denying a postponement of the sentencing. Defense counsel had requested the postponement in order to delve into the reasons why the post-trial proceedings in the case were being handled by a different assistant prosecutor after the assistant prosecutor who had tried the case ceased working in the prosecutor's office. As the trial court noted, it saw "nothing of [the prosecuting trial lawyer's] behavior that would give [the court] any reason to believe that he was terminated for violating this defendant's rights or treating him inappropriately or improperly trying the case." To the contrary, the court noted that the prosecuting attorney had "tried the case professionally, appropriately, in accordance with law and [the] rule[s] of court[.]" Given these first-hand observations by the trial court, which warrant our deference, the court's denial of an adjournment of sentencing was clearly not an abuse of discretion.

I.

We lastly consider defendant's arguments contesting his sentence as excessive. As we have noted, the trial court granted the State's application for an extended term, pursuant to N.J.S.A. 2C:43-6f and -7, and imposed a custodial term of fifty-five years, with a twenty-five-year period of parole ineligibility.

Defendant has an extensive juvenile and adult criminal history. At the time of sentencing, defendant had five prior adult convictions, including three CDS offenses, theft, and a weapons offense. As the result of concurrent sentencing on several of the prior convictions, defendant had served two prison terms.

Defendant's counsel acknowledged at sentencing that an extended term sentence was mandatory in this case because defendant had a 1998 school zone offense (for which he was sentenced to a four-year prison term) and a 2002 cocaine distribution offense (for which he received a six-year sentence). See N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7a(2). Because defendant's convictions in the present case included a first-degree offense for distributing an aggregate of more than five ounces of cocaine, see N.J.S.A. 2C:35-5, the applicable extended term was between twenty years and life imprisonment, see N.J.S.A. 2C:43-7a(2). The extended term sentence was required to include a minimum period of parole ineligibility at or between one-third and one-half of the sentence imposed. N.J.S.A. 2C:43-6f. Defense counsel requested at sentencing that the extended term imposed should be twenty to twenty-five years, a request that the trial court considered and rejected.

In imposing the sentence, the trial court noted that defendant was then thirty-two years old, with a lengthy juvenile record and an extensive adult criminal history. The court also observed that defendant's employment history was "marginal."

The trial court found that aggravating sentencing factors three (the risk of reoffending), N.J.S.A. 2C:44-1a(3); six (the extent of defendant's prior record), N.J.S.A. 2C:44-1a(6); and nine (the need for deterrence), N.J.S.A. 2C:44-1a(9), applied. The court described defendant, given his background, as a "recidivist, an incorrigible drug dealer and a career criminal whose offenses are escalating quickly and are interrupted only by prison terms." The court concluded that the aggravating factors "clearly and substantially preponderate over the absence of any other factor" and that, consequently, "a very lengthy extended term in State prison with a parole disqualifier is justified."

Defendant argues that, despite his long history of prior offenses, the custodial term imposed by the trial court was needlessly and unfairly harsh. He maintains that the sentence is patently excessive, cruel and unusual, and shocks the judicial conscience.

We review defendant's objections to his sentence through the limited scope of appellate review. In determining the appropriate sentence to be imposed on a convicted person, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified in N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359-60 (1987). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 608, 612 (2010).

In State v. Dunbar, 108 N.J. 80, 89-95 (1987), modified by State v. Pierce, 188 N.J. 155 (2006), the Supreme Court established a four-part procedural analysis for imposing a discretionary extended term sentence for a habitual offender pursuant to N.J.S.A. 2C:43-7. In State v. Jefimowicz, 119 N.J. 152, 162-64 (1990), the Court explained that the Dunbar analysis applies only in limited part to mandatory extended terms of imprisonment required by the Criminal Code. Because the sentencing court has no discretion to withhold application of mandatory extended term exposure, the analysis for such mandatory extended terms must focus upon the chosen base term of imprisonment and the corresponding period of parole ineligibility. Id. at 162-63; see also State v. Thomas, 188 N.J. 137, 149-51 (2006). In that narrower regard, the Dunbar analysis applies to a mandatory extended term sentence.

In Dunbar, the Court stated: "Once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense. '[T]he conduct that is the occasion for the sentence controls the severity of the sentence[.]'" 108 N.J. at 91 (quoting Model Penal Code and Commentaries (Official Draft and Revised Comments) § 6.07 cmt. at 174 (1985)); see also Roth, supra, 95 N.J. at 367 ("the Code requires an inexorable focus upon the offense when formulating a sentence.").

A sentencing court's primary focus in determining the base term of imprisonment must be the offenses, the conduct for which defendant is being sentenced. Here, that conduct was defendant's sale of an aggregated 5.362 ounces of cocaine to an undercover buyer. The quantity involved in a drug offense is highly relevant to an appropriate sentence. See State v. Ascencio, 277 N.J. Super. 334, 336-37 (App. Div. 1994), overruled on other grounds by State v. Dalziel, 182 N.J. 494, 503 (2005), certif. denied, 140 N.J. 278 (1995); State v. Varona, 242 N.J. Super. 474, 490 (App. Div.), certif. denied, 122 N.J. 386 (1990); see also N.J.S.A. 2C:35-1.1c. Under our Criminal Code, the distribution of any amount of cocaine exceeding five ounces is a first-degree crime. N.J.S.A. 2C:35-5b(1). That is, a defendant is guilty of first-degree distribution whether he is involved in the sale of 5.362 ounces or a much greater quantity of cocaine. There is no higher degree or sentencing range applicable to the offense.

Even according deference to the trial court's sentencing discretion, we have serious reservations as to whether defendant's history as a two-time convicted drug dealer justifies a sentence at the high end of the extended first-degree range. A prior conviction for distributing drugs already increased defendant's sentencing range to a minimum of twenty years and a maximum of life imprisonment. Part of his prior criminal record was accounted for by the mandatory extended term required by N.J.S.A. 2C:43-6f. See Dunbar, supra, 108 N.J. at 94; State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005); State v. Williams, 310 N.J. Super. 92, 98 (App. Div.), certif. denied, 156 N.J. 426 (1998).

Although defendant has a considerable juvenile and criminal record, we have significant concerns about whether that record suffices to raise the base term thirty-five years above the statutory minimum of twenty years for the quantity of drugs involved in this case. The sentence imposed substantially exceeded authorized sentences in our Criminal Code for most violent crimes and aggravated sexual offenses. In addition, the twenty-five-year period of parole ineligibility was the maximum authorized by the Criminal Code for the fifty-five-year custodial term sentence that was imposed. N.J.S.A. 2C:43-7b-c; see also State v. Pennington, 154 N.J. 344, 360 (1998). The court's sentencing analysis briefly mentioned that defendant sold, in the aggregate, "over five ounces of cocaine" to the confidential informant. However, the court did not expressly comment upon the nexus between that quantity of drugs and the exceedingly lengthy fifty-five-year sentence and twenty-five-year parole ineligibility period that were imposed.

At oral argument, we invited the State and defense counsel to provide us with supplemental briefs addressing whether a fifty-five-year sentence with a twenty-five-year parole ineligibility term had been imposed upon a defendant in comparable circumstances. The State has not provided us with such a comparable published case, although it has identified several published and unpublished cases that involved lengthy sentences but also greater quantities of drugs, to the extent quantities were indicated in the appellate opinions.

One such case cited to us is State v. Kirk, 145 N.J. 159 (1996), in which the Supreme Court reversed and remanded for reconsideration the imposition of a twenty-five-year term of parole ineligibility. The Court noted that the parole disqualifier seemed out of "balance" with the fifty-year extended term the trial court had imposed. Id. at 178-79. Significantly, in Kirk, the defendant had been convicted of transporting six-and-a-half pounds of high-quality cocaine, a quantity more than twenty-one times the minimum for a first-degree crime and far more than the 5.362 ounces of cocaine involved in this case. Id. at 170. Kirk was not cited to the trial court in this case. Nor, for that matter, were the other cases that were cited to us after oral argument on the appeal.

Because "[t]he paramount goal of sentencing reform [under the Criminal Code] was greater uniformity," Roth, supra, 95 N.J. at 369; accord Bieniek, supra, 200 N.J. at 607 (2010); State v. Kromphold, 162 N.J. 345, 352 (2000), and because we have significant reservations about the length of the sentence and parole disqualifier imposed in this case, we shall remand the sentence for further consideration by the trial court. Such a remand will afford the trial court the opportunity to consider the additional case law cited to us on the appeal. A remand will also enable the trial court to consider the concerns that we have expressed in this opinion, including the nexus between the quantity of drugs and the severity of the sentence. To accommodate such reconsideration, we direct counsel to furnish the trial court with courtesy copies of their briefs on the appeal, including the supplemental cases cited on the sentencing issue. We reach no ultimate conclusion about the appropriate length of the sentence or parole ineligibility period, which shall be subject to further review, if requested, following the remand proceedings.

Affirmed as to defendant's convictions; remanded as to the sentence for further proceedings consistent with this opinion.


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