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State of New Jersey v. Derrick Nelson Gaston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERRICK NELSON GASTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1818.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2012 -

Before Judges Carchman and Nugent.

A Hudson County grand jury charged defendant Derrick Nelson Gaston with third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35--5a(1) and -5b(3) (count two); and third-degree possession of a CDS within 1000 feet of school property, N.J.S.A. 2C:35--7a (count three). Following his unsuccessful attempt to suppress the drugs seized from him by the arresting officers, defendant proceeded to trial and a jury convicted him of all three offenses.

At sentencing, the court merged defendant's convictions on counts one and two with his conviction on count three, and sentenced defendant to an extended prison term of seven years with forty-two months of parole ineligibility, defendant having been convicted previously of possession of a CDS within 1000 feet of school property. The court also imposed appropriate fines and penalties.

Defendant appeals from the October 2, 2009 judgment of conviction, raising the following points:

POINT I

THE TRIAL COURT ERRED BY ALLOWING THE POLICE OFFICER WHO CONDUCTED THE SURVEILLANCE AT ISSUE TO TESTIFY THAT HE BELIEVED THAT HE HAD WITNESSED MR. GASTON ENGAGE IN A NARCOTICS TRANSACTION

POINT II

THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO OPINE ABOUT THE EVIDENCE IN THIS CASE (NOT RAISED BELOW)

POINT III

THE TRIAL COURT ERRED IN DENYING MR. GASTON'S SUPPRESSION MOTION

POINT IV

PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED MR. GASTON OF A FAIR TRIAL (PARTIALLY RAISED BELOW)

POINT V

THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL ON THE CHARGES OF POSSESSION WITH INTENT TO DISTRIBUTE AND POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF SCHOOL PROPERTY

POINT VI

THE TRIAL COURT ERRED BY FAILING TO CONDUCT A SANDS-BRUNSON HEARING CONCERNING THE ADMISSABILITY OF MR. GASTON'S PRIOR CONVICTION AND FAILED TO ADVISE MR. GASTON THAT SHOULD HE TESTIFY HIS PRIOR CONVICTION WOULD BE ADMISSIBLE AGAINST HIM (NOT RAISED BELOW)

POINT VII

THE JURY'S GUILTY VERDICT ON COUNTS TWO AND THREE OF THE INDICTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)

POINT VIII

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT IX

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. GASTON (NOT RAISED BELOW)

We agree with the trial court that the police did not violate defendant's constitutional rights when they seized heroin while searching him incident to his lawful arrest. We also conclude that neither the alleged trial errors nor the prosecutor's closing remarks deprived defendant of a fair trial or warrant reversing his conviction, which was supported by substantial credible evidence. Lastly, we conclude the trial court did not abuse its sentencing discretion. For those reasons we affirm defendant's conviction and sentence.

I.

The State adduced the following facts at the hearing on defendant's suppression motion. On the morning of April 3, 2008, at approximately eight o'clock, Jersey City police officers Eddie Nieves and Philip Shenagle were working a "plainclothes" detail and driving an unmarked car when they responded to a call about a male selling drugs at the intersection of Bidwell Avenue and Martin Luther King Drive. Nieves drove to the intersection where he and his partner parked and exited the vehicle. Their badges were visibly displayed hanging from their necks. The officers watched as "a couple of people standing on the corner . . . walked away." Nieves "checked the area for any kind of drug stash," but finding none, left the area. While on patrol about an hour later, Nieves drove past the same intersection and saw one of the individuals he had seen earlier. Nieves identified that individual as defendant.

The intersection of Bidwell Avenue and Martin Luther King Drive was well-known to Nieves as a drug area. The police had been receiving complaints about narcotics transactions and other illegal activity at that location for nearly fourteen years. Nieves himself had conducted surveillances of the intersection and had made numerous narcotics-related arrests before the day he arrested defendant. For those reasons, after seeing defendant loitering at that intersection a second time, Nieves returned to police headquarters and switched the police vehicle with his personal car, which had tinted windows; he then returned to the intersection where he set up surveillance. After approximately twenty minutes, Nieves witnessed defendant make what the officer believed to be a narcotics sale.

As Nieves watched, another person approached and spoke with defendant, walked with defendant approximately thirty feet west on Bidwell Avenue, stopped, and handed defendant money. Defendant counted and pocketed the money, reached into his "hoodie" pocket, pulled out a small white object, and handed it to the other person, who then walked away. Defendant also walked away. Based upon his fifteen years of experience as a police officer, which included a week of narcotics training, working on the Jersey City narcotics squad for six months, and working plainclothes on a regular basis, Nieves believed he had witnessed a narcotics sale.

Nieves radioed a description of the buyer to a "perimeter unit." When the officers in that unit, Clarence Dabny and Charles Taveras, were unable to locate the buyer, Nieves gave them defendant's description. Dabny and Taveras stopped defendant on Martin Luther King Drive and arrested him. After arresting defendant, the officers searched him and found fifty-four bags of heroin and $39 in the pocket of his hoodie.

At trial, Nieves was one of five witnesses who testified for the State. The others were Officers Dabny and Taveras; Linda Hogar, a forensic chemist, who tested randomly some of the fifty-four glassine bags seized from defendant and concluded they contained heroin; and Sergeant Wally Wolfe, who testified as an expert "in the areas of packaging, use, and distribution of narcotics."

Nieves recounted at trial the events leading up to defendant's arrest, including how Nieves watched as defendant handed a small white object to the other individual in exchange for cash. While eliciting Nieves' testimony about that observation, the prosecutor asked, "[B]ased on your training and experience, what did you believe he just handed him?" Nieves responded, "I believe it was narcotics." Defendant objected, but the court overruled the objection, saying only, "Based on what? His experience or his -- that's what he believed. That's what he thought."

Later in the trial, Wolfe explained to the jury that the smallest unit of heroin is a glassine bag usually containing approximately .01 grams, and often stamped with an ink logo relating to the quality of the heroin or the group that sells it. Such a glassine bag is referred to, "in slang terms, [as] a hit or a dose," and it is common for drug dealers to sell glassine bags with the same logo. Dealers usually bring heroin to street markets in a "bundle" of ten glassine bags wrapped together with elastic, or in a "brick" consisting of five bundles usually taped tightly together in magazine paper.

Wolfe next explained that someone using heroin typically comes into a market, buys one or two bags, and has drug paraphernalia such as a hypodermic needle or a straw to inject or inhale the heroin. Additionally, it would be unusual for someone buying drugs to linger after making a purchase; rather, people buy what they need and leave quickly because drug markets are very dangerous places and people who frequent them are often subject to arrest.

Referring to the evidence seized from defendant, Wolfe identified the individual glassine bags as the type typically sold as a dose, noted the ink logo "Drop Zone" stamped on the bags, and identified the groups of ten wrapped bags as bundles, "part and parcel to a brick." In response to the prosecutor's question, "In your opinion, is that amount of drugs something that someone would buy for personal use?" Wolfe said, "No. No, definitely not." Wolfe explained that the amount possessed by defendant had a street value between $432 and $540, would not be available on the market to someone that was buying drugs, and represented retail packaging. Although acknowledging a possibility that someone could buy that quantity and keep it for later use, Wolfe explained that "we just don't see it. People don't buy it and squirrel it away as we would buy soda from [BJ's Wholesale Club] or anything like that." Defendant did not object to Wolfe's testimony.

After the State presented its last witness, the court spoke with defendant about testifying. Defendant said he had chosen not to testify after speaking with his attorney, the decision was his own, no one had forced him to make it, and he had no doubt in his mind about his decision. Neither the court nor the parties raised the issue of defendant's prior conviction.

Defendant presented the testimony of one witness, his investigator, who told the jury that two months before the trial began he had located two surveillance cameras at the intersection of Bidwell Avenue and Martin Luther King Drive. According to the camera operators, both cameras had been operational on the day of defendant's arrest, but the videotapes were no longer available.

The main theme of defense counsel's closing argument was the State's failure to prove beyond a reasonable doubt that defendant intended to distribute the heroin he possessed. To underscore this theme, defense counsel attacked Nieves' credibility; argued that the Jersey City Police Department's failure to supervise its officers resulted in "laziness and sloppiness" in the investigation; suggested Wolfe was a "professional witness" who was brought into the case by the prosecutor's office a few months before trial "probably to try and salvage this case"; emphasized defendant had not been charged with selling, distributing, or giving drugs to anyone; and told the jury that the police failed to retrieve videotapes of the incident from the two security cameras because "maybe they're afraid of what it might show." Counsel emphasized, there was no one with [defendant], like you heard Sergeant Wolfe talk about a money man or a steerer or look-out. Those are commonly used, as he said, in street level sales. No one [was] with him. He was alone. The only thing he did in those 40 minutes on the corner was be approached by someone who initiated a conversation with him. And what did he do at the end of 40 minutes? He walked away. That's the proof or lack of proof as to his intent to distribute or sell drugs. And do those actions sound like a drug seller beyond a reasonable doubt? Not even close, ladies and gentlemen. Not even close. Not according to Sergeant Wolfe and certainly not according to the law that [the court] will ask you to apply in this case.

Throughout his summation, defense counsel interjected his personal viewpoints about the evidence.*fn1 For example, he began his attack on Nieves' credibility by saying, "Now, some portions of his testimony I found difficult to believe." Commenting on the police finding money in defendant's pocket, not at the scene, but in the police station where many officers were present, defense counsel said, "That raised a lot of questions for me." Referring to the surveillance cameras, counsel continued, "Now, to me, and again, I would think for you, the most disturbing part of this case is this issue with the CCTV film, the tape." And when discussing the charges, counsel told the jury, "I think when you deliberate on [counts] two and three, it might be the easiest way because I think those would definitely be not guilty, and then you tackle the first claim."

The prosecutor began her summation by asking the jury to "get back to what this case is really about." Emphasizing that the case was about defendant possessing fifty-four bags of heroin, the prosecutor argued:

Now, [defense counsel] wants to make this case about something else. [He] might want to run the Jersey City Police Force but [luckily] for us he doesn't. He might want to be the legislator and start re-writing the laws. Luckily for us, he's not. The law is clear that possession with intending to sell is a separate crime. We're not making it up, going into [defendant's] mind.

That is the law and the Judge will instruct you that you must follow that law.

After commenting on the evidence that proved defendant possessed drugs, the prosecutor addressed counts two and three concerning distribution:

In this trial, all the drugs, all the charges build on each other. To prove the second charge, we need to know why he possessed this. He had it. And, two, that he knowingly possessed it with the intent to sell it. And this is really the whole case. Nothing to me is really in question. Did he intend to sell it? Again, [defense counsel] wants you to focus on the unapprehended male, that man that wasn't caught. He's not charged with that. The State knows we can only charge you with things beyond a reasonable doubt so we don't even charge him if we know we can't prove that beyond a reasonable doubt. He's not charged with that. But how do we use that?

The prosecutor went on to explain the relevance of the transaction involving the "unapprehended male" to the State's theory of the case.

Later, while discussing the packaging of heroin seized from defendant, the prosecutor asked rhetorically, "[L]et's think about why there might have been four loose. Did he sell them before? Is that why he had a couple left over from the bundle? Is that why he had money in his pocket?" When defendant objected that the argument was "clearly outside the scope of any testimony we heard," the court responded, "That will be up to the jury to decide." The court instructed the jury, "[Y]our recollection of the evidence controls."

Following the court's final instructions the jury deliberated and convicted defendant on all counts. After he was sentenced, defendant filed this appeal.

II.

A.

We first address defendant's challenge to the trial court's denial of his suppression motion. Our scope of review of the trial court's findings of fact and credibility determinations at a suppression hearing is limited. Giving "deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy," State v. Johnson, 42 N.J. 146, 161 (1964) (citation omitted), we will uphold the court's findings if they are "'supported by sufficient credible evidence in the record,'" State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)), aff'd, 206 N.J. 39 (2011). Our review of a judge's legal conclusions, however, is plenary. Ibid.

Defendant disputes the court's conclusion that the circumstances preceding his arrest established probable cause. He maintains that Nieves observed no drugs in his possession and saw nothing more than defendant "receive money in exchange for a 'small white object' which he 'thought,' based on his 'training and experience,' 'was drugs that had been passed.'" Based on those assertions, defendant argues that his arrest was not supported by probable cause and the search incident to his arrest was therefore unconstitutional. The State counters that the totality of circumstances known to Nieves established probable cause.

A law enforcement officer may make a warrantless arrest of an individual in a public place if the arrest is supported by probable cause. See Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 799, 157 L. Ed. 2d 769, 774 (2003); State v. Brown, 205 N.J. 133, 144 (2011). "Probable cause exists if at the time of the police action there is a well[-]grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation marks and citation omitted).

When reviewing the circumstances of an arrest to determine whether it was supported by probable cause, "a court must look to the totality of the circumstances and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J. 570, 585 (2010) (internal quotation marks and citations omitted). Among other factors, a court may consider a police officer's experience and whether the location of the arrest was known for particular criminal activity. See State v. Moore, 181 N.J. 40, 46 (2004). "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" Ibid. (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).

Nieves had considerable experience investigating drug trafficking. As previously noted, he had received training at the academy, worked in the department's narcotics squad for six months, and worked plainclothes assignments on a regular basis. He was aware that the intersection of Bidwell Avenue and Martin Luther King Drive was a known open-air drug market, the police having received complaints about narcotics and other illegal activity at that location for nearly fourteen years, and Nieves himself having conducted surveillances of the intersection and made numerous drug arrests there. Nieves' experience, specific knowledge of the drug activity around the intersection where he had seen the defendant loitering throughout the morning, and observation of defendant taking money from and giving a small white object to another person, warranted his well-grounded suspicion that defendant had sold a CDS.

There are no significant differences between the facts of this case and those of Moore, in which our Supreme Court upheld a trial court's determination that a defendant's arrest was supported by probable cause:

Detective Abrams was an experienced narcotics officer. He previously had made numerous drug arrests in the same neighborhood, which was known to the police for heavy drug trafficking. Using binoculars, he observed three men move away from the group to the back of a vacant lot, and he saw defendant and his companion give money to the third person in exchange for small unknown objects. Based on his experience and those factors, it was reasonable for Detective Abrams to conclude that the totality of the circumstances supported a well-grounded suspicion that he had witnessed a drug transaction. Therefore, the trial court properly determined that there was probable cause for Detective Abrams to arrest defendant. [Id. at 46-47.]

As in Moore, here the trial court properly determined that defendant's arrest was supported by probable cause, and denied defendant's motion to suppress the heroin.

B.

We turn next to defendant's contention that his conviction must be reversed due to trial errors that occurred during the testimony of two of the State's witnesses, during the court's colloquy with defendant about whether defendant would testify, and during the prosecutor's summation. Defendant argues that the trial court erred by permitting Nieves to express his "belief" that the white object defendant had exchanged for money was "narcotics"; and that the State's expert, Wolfe, improperly and prejudicially described the significance of the packaging and quantity of drugs seized from defendant, and improperly opined that the drugs were not being held for personal use. Defendant objected to Nieves' testimony but not to Wolfe's.

A police officer may not express a lay opinion, based upon experience and expertise, that a hand-to-hand exchange of money for some other object is a drug transaction. State v. McLean, 205 N.J. 438, 461-63 (2011). Such testimony, elicited by a question [referring] to the officer's training, education and experience, in actuality call[s] for an impermissible expert opinion. To the extent that it might [be] offered as a lay opinion, it [is] impermissible both because it [is] an expression of a belief in defendant's guilt and because it presume[s] to give an opinion on matters that [are] not beyond the understanding of the jury. [Id. at 463]

On the other hand, an expert may express an opinion "that possession of . . . drugs was for the purpose of distribution." State v. Odom, 116 N.J. 65, 79 (1989). If "the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide." Ibid. Nonetheless, "[i]t is . . . important that trial courts and trial attorneys clearly understand the standards governing such expert testimony and that juries be carefully instructed on how to consider and use such testimony in their deliberations." Id. at 81.

The Supreme Court has "established a framework for expert opinions by requiring the use of a hypothetical question that recites the relevant facts as the basis for the expert's opinion." McLean, supra, 205 N.J. at 454. Additionally, Odom, supra, set forth guidelines for the appropriate use of a hypothetical question in a drug case. The question must be limited to the facts adduced at trial. The prosecutor may ask the expert to express an opinion, based on those facts, whether the drugs were possessed for distribution or for personal consumption. The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible. 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, but it cannot contain an explicit statement that the defendant is guilty of the crime charged under the statute. Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them. [State v. Summers, 176 N.J. 306, 314-315 (2003) (internal quotation marks and citations omitted).]

A "defendant's name [may] not be included in the question or answer, . . . the expert's answer should, 'to the extent possible,' avoid the precise language of the statute that defines the crime, . . . [and] the expert should be limited to the facts set forth in the hypothetical . . . ." McLean, supra, 205 N.J. at 455 (quoting Summers, supra, 176 N.J. at 314-15).

The State did not qualify or offer Nieves as an expert witness, but nonetheless elicited testimony based on the officer's "training and experience." "As a result, the reference in the question to his training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one." Id. at 462. Additionally, "the implications of what he said he saw were not outside the common understanding of the jurors." Ibid.

Having determined that Nieves' testimony as to his "belief" was improper, we must now decide whether that testimony warrants reversing defendant's conviction. We conclude the error was harmless.

The doctrine of harmless error is embedded in Rule 2:10-2, which provides in part: "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." "The harmless error standard . . . requires that there be 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).

If Nieves' opinion -- "I believe it was narcotics" -- is disregarded, there remains abundant evidence of defendant's guilt. Nieves observed defendant loitering on a street corner in a high crime area, then watched as defendant exchanged with another person a white object for money. Shortly thereafter, when defendant was stopped and searched, he had a sizeable quantity of a substance packaged in numerous glassine bags identified by the same logo and "bundled." One of the State's experts, who randomly sampled the glassine bags, confirmed that the substance was heroin. The State's other expert provided persuasive opinion testimony, based upon the quantity and packaging of the heroin, that it was not being held for personal use. In the context of the substantial quantum of evidence of defendant's guilt, Nieves' singular expression of belief about the white object could not possibly have led the jury to a verdict it otherwise might not have reached. Ibid.

Defendant relies upon McLean, supra, to support his argument that the admission of Nieves' testimony was reversible error. There is a significant difference between the facts of McLean and those in the case before us. In the former case, police conducting undercover surveillance saw the defendant engage in two street-level drug transactions, where, after meeting prospective buyers, the defendant retrieved the drugs from a car parked in a lot removed from the view of the surveilling officers. McLean, supra, 205 N.J. at 443. Shortly after the second transaction, back-up detectives drove into the parking lot, arrested the defendant, and seized a small package on the passenger side floor "which turned out to be a bundle of ten glassine envelopes, each stamped 'Arrival Killer' in green ink and which later were proved to contain heroin." Id. at 444.

At trial, in McLean, the State did not produce expert testimony about the packaging, street-level distribution, and value of the CDS; it adduced only the testimony of the officer who conducted the surveillance, a detective who had observed the package of heroin in the car, and a sergeant who was in one of the back-up units.*fn2 Ibid. Consequently, the Supreme Court had no occasion to decide whether an officer's opinion that he had observed a drug transaction was harmless error in light of an expert's testimony about the same transaction.

We turn to defendant's challenge to the expert testimony. Because defendant did not object to this, we review it under a plain error standard. R. 2:10-2. Under that standard, a conviction will be reversed if the error was "clearly capable of producing an unjust result." Ibid.; see also State v. Macon, 57 N.J. 325, 337 (1971). Thus, if a defendant asserts on appeal an issue not raised before the trial court, we will reverse a conviction based on such error "only if [it] was . . . sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal quotation marks and citations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, supra, 57 N.J. at 333.

When evaluating an issue under a plain error standard, we consider defense counsel's failure to object at trial as suggesting counsel did not think the evidence was unduly prejudicial. Cf. State v. Echols, 199 N.J. 344, 360 (2009) (explaining that a defendant's failure to object to a prosecutor's closing remarks indicates defense counsel did not find the remarks to be prejudicial). "Failure to object also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999).

Defendant argues that plain error occurred because the State did not question its expert in hypothetical form, elicited the opinion that the quantity of drugs defendant possessed exceeded what normally would be possessed for personal use, and had the expert testify that the packaging of those drugs represented "retail packaging."

In McLean, after reviewing the precedents on the issue, the Court summarized "what is permitted and what is not" when the State presents expert testimony in a narcotics prosecution. McClean, supra, 205 N.J. at 454. If experts are properly qualified and base their opinions on facts in evidence, their opinions are not objectionable even if they embrace the ultimate issues to be decided by the jury. Ibid.

A properly qualified expert may opine: that drugs were possessed for distribution, but not that the distributor is guilty of the crime charged; how to distinguish between drugs possessed for distribution and those possessed solely for personal use; about methods of drug distribution and the roles of street-level participants in drug transactions; about the street value of drugs; about the purpose of using plastic bags to package drugs; and about how the actions of street-level dealers fit into the overall transaction when the dealer does not possess the drugs he sells, but instead obtains them from a location or stash. Id. at 450-51.

Although these examples were not intended to be all-inclusive, the Court emphasized the impropriety of an expert explaining the straight-forward manner in which street-level exchanges of money for objects take place. Id. at 452-53. The Court reiterated that the State must elicit expert opinion testimony through the use of a hypothetical question. Id. at 454-55.

Here, the prosecutor did not elicit the expert's testimony in the form of a hypothetical question, but instead handed the expert the drugs seized from defendant and framed questions in terms of those drugs and their packaging. Although the prosecutor's method of questioning the expert clearly deviated from the Supreme Court's strictures, we conclude that the error was not plain error.

Notably, the topics that form the subject matter of the expert's opinions -- the packaging of drugs, the roles of street-level participants in drug transactions, the street value of the drugs seized from defendant, and whether the drugs were possessed for personal use -- were not improper. The expert did not opine that the "white object" contained narcotics, characterize defendant's exchange of the white objects for money as a drug transaction, couch his opinion in statutory language, or express an opinion about defendant's guilt. In short, the substance of his testimony was admissible.

In addition, defense counsel did not object to the form of the prosecutor's question, an indication that the evidence was not unduly prejudicial. Echols, supra, 199 N.J. at 360. Defense counsel's failure to object also deprived the court of the opportunity to give a curative instruction and require the prosecutor to elicit testimony in the form of a hypothetical question. See Timmendequas, supra, 161 N.J. at 576. Had the court ruled differently, the form of the prosecutor's questions would have changed, but the substance of the expert's opinion would have remained the same.

In view of the irrefutable evidence that the fifty-four glassine bags of heroin were found on defendant's person, there is no rational basis for believing that a reasonable juror would have disassociated the drugs and defendant had the expert responded to a hypothetical question instead of questions about the glassine bags in evidence. Cf. Odom, supra, 116 N.J. at 83 (finding harmless error in a question incorporating the defendant's name in hypothetical posed to a narcotics expert). Stated differently, the form of the prosecutor's questions neither resulted in plain error nor deprived defendant of a fair trial.

Defendant next contends that despite expressing no question or concern about his prior conviction, he was entitled to a hearing and a decision as to whether his prior conviction could be used to impeach him if he were to testify. We disagree.

The Supreme Court has vested in trial courts the discretion to admit into or exclude from evidence a defendant's prior convictions. State v. Sands, 76 N.J. 127, 144 (1977). Generally, a trial judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice. [Id. at 147.]

If the prior conviction involves a crime similar to the one charged, the State may only introduce the degree of the prior crime and the date of the offense. State v. Brunson, 132 N.J. 377, 391 (1993).

Significantly, the Supreme Court in Sands found no error as to Sands himself because he had not requested a hearing concerning his prior conviction:

In the instant case, we are satisfied that no error was committed with respect to the defendant Sands. He did not raise the issue before the trial court or the Appellate Division. Before us for the first time he has urged that his failure to testify was "fear lest his record of prior offenses come to the attention of the jury" and that he "was intimidated into declining to take the witness stand." These unsupported and unwarranted assertions conflict with reality. Sands, never indicating such fear at trial, did not join in his co-defendant's efforts to limit the evidential effect of prior convictions. [Sands, supra, 76 N.J. at 145.]

Here, as in Sands, defendant did not raise the issue at trial. During the colloquy between defendant, defense counsel, and the court about defendant's decision not to testify, no one mentioned defendant's prior conviction for possession of a CDS with intent to distribute within 1000 feet of a school zone. Notably, defendant now claims not that he based his decision not to testify upon the fact of his prior criminal conviction, but instead that the absence of a ruling on the issue "prevented [him] from making a fully informed decision concerning his Fifth Amendment right to remain silent or to testify on his own behalf." This assertion in defendant's appeal brief does not support unequivocally the conclusion that defendant was dissuaded from testifying out of fear that he would be impeached with the prior conviction, and does not provide a factual basis for his legal argument. Assuming the trial court knew of defendant's prior conviction, it had no basis to believe defendant was dissuaded from testifying because of that conviction. Defendant having failed to raise the issue, the trial court was not required to raise it sua sponte.

Defendant next alleges that the prosecutor made prejudicial remarks during her summation, thereby depriving him of a fair trial. Specifically, defendant argues that the prosecutor (1) inappropriately expressed her personal opinion about the merits of the case when she commented that "[n]othing to me is really in question" and when she later said about the unidentified buyer, "[t]he State knows we can only charge you with things beyond a reasonable doubt so we don't even charge him if we know we can't prove that beyond a reasonable doubt"; (2) commented on matters not in evidence when she rhetorically asked about the four "loose" glassine bags seized from defendant, "Did he sell some before? Is that why he had a couple left over from the bundle? Is that why she had money in his pocket?"; and (3) denigrated defense counsel when she remarked that he "might want to run the Jersey City Police Force" or "be a legislator and start re-writing the laws."

The prosecution's duty to achieve justice does not forbid prosecutors from presenting the State's case in a "vigorous and forceful" manner, State v. Ramseur, 106 N.J. 123, 320 (1987) (internal quotation marks and citation omitted), and prosecutors are afforded "considerable leeway" in closing argument, State v. Smith, 167 N.J. 158, 177 (2001). They may comment on facts in the record and draw reasonable inferences from them, and may remark on the credibility of a defense witness' testimony. State v. Lazo, ___ N.J. ___, ___ (2012) (slip op. at 36-37) (citations omitted). But "prosecutors may not advance improper arguments." Id. (slip. op. at 37). They "should not make inaccurate legal or factual assertions during a trial and . . . they must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." Smith, supra, 167 N.J. at 178.

A prosecutor "over-step[s] the bounds of propriety" by "cast[ing] unjustified aspersions on the defense or defense counsel," or by implying that a defense expert's testimony is "fabricated or contrived with the assistance of defense counsel." Id. at 177-79. Other examples of prosecutorial impropriety include making arguments "clearly contrary to" excluded evidence, see State v. McGuire, 419 N.J. Super. 88, 144 (App. Div.), certif. denied, 208 N.J. 335 (2011); expressing a "personal belief if the import is or may be that it is based upon facts not before the jury," Aponte v. State, 30 N.J. 441, 447 (1959); implying that a defendant must establish his innocence, see State v. Jones, 364 N.J. Super. 376, 382-383 (App. Div. 2003); and "assert[ing] personal knowledge of facts in issue except when testifying as a witness, or stat[ing] a personal opinion as to the justness of a cause, the credibility of a witness, . . . or the guilt or innocence of an accused," RPC 3.4(e).

In analyzing whether a prosecutor overstepped the bounds of propriety when making a closing argument, we must first determine whether the prosecutor's remarks were improper, and then, if necessary, "decide whether the prosecutor's misconduct constitutes grounds for a new trial." Smith, supra, 167 N.J. at 181. To warrant reversal, the "misconduct [must be] so egregious [as to] deprive[] the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575.

Defendant did not object at trial to the prosecutor's remarks -- that to her nothing was "really in question," and "we don't even charge him if we know we can't prove that beyond reasonable doubt" -- so we evaluate these statements under the plain error standard. Although neither remark should have been made, neither was clearly capable of producing an unjust result.

R. 2:10-2.

The first remark did not appear to be a deliberate expression of personal belief, but rather a poorly prefaced comment on the abundant evidence of defendant's intent to distribute the heroin he possessed. As we have previously noted, the evidence of defendant's intent to distribute was indeed considerable, and the prosecutor's prefatory comment could hardly have led the jury to a result it otherwise would not have reached.

The prosecutor's other remark was clearly inappropriate, implying as it did that the prosecutor would not have charged defendant unless she believed she could prove the charges beyond a reasonable doubt. But the evidence was compelling, the remark was not, and the absence of an objection suggests defense counsel did not perceive the remark as unduly prejudicial. In its charge to the jury, the court instructed that the attorney's comments were not evidence. In short, the remark did not equate to plain error.

Next, we conclude the prosecutor commented fairly on the evidence when she asked the rhetorical questions about the four unbundled glassine bags. One could have reasonably and readily deduced from the evidence, especially the expert testimony, that the four bags were the unsold remainder of a bundle.

We also reject defendant's contention that he is entitled to a new trial because the prosecutor disparaged defense counsel in her summation. The prosecutor did state that defense counsel might want to run the Jersey City police force, be a legislator, and start re-writing the laws; but that comment was made at the beginning of the prosecutor's summation, after defense counsel had zealously attacked the police department, suggested that the law required an acquittal of defendant on the distribution charge, and repeatedly expressed his personal views about the case. Considering the content and tenor of defense counsel's closing argument, we do not find the prosecutor in this instance made comments so prejudicial as to require a new trial.

Defendant argues that if none of the errors, considered individually, deprived him of a fair trial, the cumulative impact of the errors denied him a fair trial. We reject this argument.

"A defendant is entitled to a fair trial but not a perfect one." State v. Wakefield, 190 N.J. 397, 537 (2007) (internal quotation marks and citations omitted). For that reason, legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may [not] be invoked to upset an otherwise valid conviction; under these circumstances it would be grossly unjust to the State and its people to grant a new trial . . . . Where, however, the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury. [State v. Orecchio, 16 N.J. 125, 129 (1954).]

"[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." Wakefield, supra, 190 N.J. at 538.

When deciding whether the predicate for relief exists, a reviewing court must evaluate, among other factors, the quantum of evidence of a defendant's guilt, State v. Koskovich, 168 N.J. 448, 540 (2001) (noting that "the quantum of evidence is an important factor for overcoming errors in the guilt phase"); the phase of the trial in which the error occurs, ibid. (explaining that "a correct charge to the jury is singularly important for ensuring that jurors discharge their function accurately, fairly, and free from any impermissible influences"); and whether the errors "pervaded the trial" or "permitted [a party] to shift the jury's focus from a fair evaluation of the evidence to pursue instead a course designed to inflame the jury, appealing repeatedly to inappropriate and irrelevant considerations that had no place in the courtroom[,]" Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55-56 (2009).

In the case before us, the State presented a substantial quantum of evidence of defendant's guilt. Nieves' characterization of the street exchange as a drug transaction, though improper, established a fact that was more than amply supported by considerable evidence independent of the officer's testimony. Considering the entire context of both summations, and the trial court's instruction to the jury that the remarks of counsel were not evidence, the prosecutor's improper remarks had little if any likelihood of influencing the jury's evaluation of the evidence. The probable effect of the cumulative error was insignificant and did not render the underlying trial unfair.

C.

Defendant next contends the trial court erred by denying his motion for an acquittal and that the verdict on counts two and three of the indictment was against the weight of the evidence. In light of the record, we conclude that those arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

D.

Defendant challenges his sentence as manifestly excessive. A court has wide discretion when imposing a sentence, but the sentence must not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 360 (1987). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." O'Donnell, supra, 117 N.J. at 216. When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks and citations omitted).

Defendant contends his sentence is manifestly excessive because the court failed to consider as a mitigating factor that imprisonment will result in a hardship to his family, particularly considering that his brother was tragically murdered. However, defendant has offered no evidence to show how a hardship occasioned by his imprisonment and his brother's death is "excessive" under N.J.S.A. 2C:44-1(b)(11). It is not even clear that defendant asserted at sentencing, as he does now, that his brother's death should be considered as a mitigating factor. Defendant referred at sentencing to his brother's death to explain why he rejected a plea bargain and proceeded to trial. Defendant's conclusory statements are insufficient to demonstrate an excessive hardship. See State v. Dalziel, 182 N.J. 494, 505 (2005).

Affirmed.


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