June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STACY D. BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 08-04-0207 and 09-05-0400.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Graves and J. N. Harris.
On July 2, 2009, defendant Stacy D. Brown pled guilty to third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one of Indictment No. 09-05-0400). Defendant went to trial on a second indictment charging him with second-degree possession of cocaine with intent to distribute within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1 (count one of Indictment No. 08-04-0207), and third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two of the same indictment). On July 24, 2009, a jury convicted him of both offenses. Prior to sentencing, the court granted the State's motion for imposition of a mandatory extended term under N.J.S.A. 2C:43-6(f) because defendant was a repeat drug offender. The court sentenced defendant to ten years imprisonment with five years of parole ineligibility for second-degree possession of cocaine with intent to distribute within 500 feet of a public park, and to a concurrent extended ten-year term with five years of parole ineligibility for third-degree possession of cocaine with intent to distribute. Defendant was also sentenced to a concurrent ten-year term for third-degree possession of cocaine (count one of Indictment No. 09-05-0400). Thus, defendant is serving a ten-year prison term with a five-year period of parole ineligibility.
On appeal, defendant presents the following arguments:
THE DEFENDANT'S RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, AND 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 ADMISSION OF ACCUSATIONS FROM AN ABSENTEE WITNESS.
A. THE TRIAL COURT FAILED TO GIVE THE JURY AN ESSENTIAL INSTRUCTION LIMITING EVIDENCE FROM A CONFIDENTIAL INFORMANT TO THE ISSUE OF POLICE CREDIBILITY.
B. THE STATE IMPROPERLY RELIED ON PAPERS PREPARED BY THE GOVERNMENT FOR THE PURPOSE OF CRIMINAL PROSECUTION ON THE DRUG ZONE CHARGE, THEREBY DENYING THE DEFENDANT THE RIGHT OF CONFRONTATION.
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 PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY, SUPPORTED BY THE TRIAL COURT'S INSTRUCTION, THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE CDS BASED ON "SHARING" DRUGS. (Not Raised Below)
A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT SHARING IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.
B. THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY ON THE LAW OF INTENT TO DISTRIBUTE CDS.
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 OPINION THAT THE DEFENDANT POSSESSED CDS WITH THE INTENT TO DISTRIBUTE. (Not Raised Below)
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 THE JURORS DIRECTING THEM TO FIND, CONTRARY TO DEFENDANT'S ARGUMENT, THAT THE EVIDENCE OF A PUBLIC PARK DRUG ZONE WAS "SUFFICIENT."
THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
THE SENTENCE IS EXCESSIVE.
A. THE CONVICTION FOR POSSESSION OF CDS SHOULD MERGE WITH THE CONVICTION FOR POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK.
B. THE SENTENCING COURT MAY NOT ORDER TWO EXTENDED TERMS.
C. THE TEN YEAR EXTENDED TERM SENTENCE ON COUNT ONE OF INDICTMENT NO. 09-05-0400 SHOULD BE VACATED BECAUSE IT VIOLATES THE TERMS OF THE PLEA AGREEMENT.
D. THE STATE'S MOTION FOR AN EXTENDED TERM WAS ARBITRARY AND CAPRICIOUS.
E. THE STATE FAILED TO COMPLY WITH NOTICE AND OTHER REQUIREMENTS FOR THE IMPOSITION OF AN EXTENDED TERM.
F. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
G. THE COURT IMPROPERLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
After considering defendant's arguments in light of the record and the applicable law, we are satisfied that he received a fair trial, and we affirm his convictions. However, as conceded by the State, the matter must be remanded for resentencing.
Prior to trial, defendant filed a motion to suppress evidence. The facts adduced at the suppression hearing can be summarized as follows. At approximately 4:30 p.m. on March 7, 2008, while Detective Christopher Shearer and other officers from the Somerset County Narcotics Task Force were conducting surveillance for "individuals involved with selling narcotics," Shearer received information from a confidential informant (CI). According to the CI, a man later identified as defendant, was in the area of East Main and Fairview with "a quantity of narcotics." The CI described what the man was wearing and told Shearer that the man would be carrying "a pink and white umbrella."
Shearer responded to the location and observed defendant, who matched the CI's description "[t]o a T," holding a pink and white umbrella. When asked to describe what happened next, Shearer testified as follows:
At that time there was a female standing at the bus stop waiting for the bus. [Defendant] walked up to her, yelled, with the umbrella in his hand. He didn't drop it. He cocked his hand with the umbrella still in there. So now the umbrella was parallel with the ground. And he punched her in the left jaw.
Q. How did she respond to that?
A. She did not drop to the ground or anything. She took the punch, began yelling at him, at which point I immediately took action.
Q. Even though it was rainy were you able to get a clear and unobstructed view of the individual who hit the victim?
A. Yes. I could clearly see Mr.
Brown strike her in the left cheek with the umbrella in his hand. I was no further [than] from me to you, sir.
Shearer then got out of his car, identified himself, and told defendant he was under arrest for assault. Officer Christopher Gelardi responded to the scene to assist Shearer. Shearer stated the victim of the assault had no visible signs of injury, and she refused medical attention.
Gelardi testified a search incident to arrest revealed eight bags of crack cocaine in defendant's pants pocket. During a further search at the police station, the police discovered two larger bags of crack cocaine hidden inside the lining of defendant's jacket, some money, "a small white straw, a black and silver knife, and two cell phones." According to both officers, defendant denied the assault charge but admitted he "mushed her face."
Defendant testified at the suppression hearing that he never struck the alleged victim, his girlfriend, Shirley Bryant. According to defendant, he was "just joking" with his girlfriend, and Shearer assumed "that [he] was assaulting her." Defendant also denied saying he "mushed" his girlfriend's face.
Defendant admitted ownership of the cocaine found in his pants pocket, but he denied there was any cocaine in his jacket. Additionally, defendant explained that he had cashed a check in the amount of $1,400 prior to his arrest:
Q. Okay. You had just settled a lawsuit?
Q. And what was that lawsuit for?
A. For a car that I bought. It was a lemon.
Q. And your attorney had sent you a check?
Q. And that amount was for the amount of $1,400?
Q. And had you cashed that check?
Q. And you had the money on you at that point?
The motion judge found the officers' testimony "to be forthright, responsive, credible, and worthy of belief." Based on their testimony, the judge found there was probable cause to arrest defendant for the offense of simple assault, and the cocaine and other items were seized as a result of a search incident to defendant's lawful arrest. Consequently, defendant's motion to suppress was denied.
At defendant's trial, his defense was that he possessed the cocaine for his own use and not for distribution. In her opening statement, defendant's attorney advised the jury that the police found "a straw on Mr. Brown," which was indicative of personal use, and that the cocaine he possessed was "for his own personal use." Thus, the primary question for the jury was whether defendant intended to distribute the cocaine.
Officers Shearer and Gelardi both testified at defendant's trial. Gelardi specified he recovered the sum of $1,559 from defendant. In addition, while defendant was being processed at the Somerset County Jail, Rubin Crespo, a corrections officer, searched defendant and his clothing and found $804 in "the inner lining" of defendant's jacket.
Peter F. Murphy, a forensic scientist, also testified for the State. Murphy stated the "eight taped sealed knotted plastic bags" found in defendant's pants pocket collectively weighed 1.46 grams, and each bag was "approximately the same weight." The combined weight of the two bags found in defendant's jacket was 6.941 grams, and the tests performed by Murphy confirmed the substance was cocaine.
The State's final witness, Detective Meredith Roberts, was qualified "as an expert in the area of illegal narcotics distribution." In response to a hypothetical question that incorporated the facts of this case, Roberts testified that in her opinion, the cocaine was possessed for the purpose of distribution and not personal use. According to Roberts, she based her opinion on the following factors: (1) the collective weight of the cocaine seized, 8.4 grams, was "a lot for personal use;" (2) the eight bags were "individually wrapped [and] ready for sale;" (3) the absence of paraphernalia, such as a pipe, to smoke the crack cocaine; (4) the placement of the two larger bags of cocaine in the jacket lining was consistent with an attempt to conceal it from police; (5) drug dealers usually have "a drug cell phone" in addition to a personal cell phone; and (6) drug dealers generally carry large amounts of cash because "it is a cash business."
Defendant did not testify at trial, but three witnesses were called on his behalf. Shirley Bryant testified defendant did not punch her on March 7, 2008. However, on cross-examination, she acknowledged she was still defendant's girlfriend, and she did not want to see him "get in trouble" or "go to jail." In addition, she admitted that she had been convicted of two indictable offenses.
Regarding the cash found in defendant's possession, Christopher Joseph McGinn, Esq., testified he had brought a lawsuit against a car dealership on defendant's behalf. The lawsuit settled and McGinn wrote defendant a check for $1400 from his attorney trust account. A copy of the cancelled check showed that it was endorsed by defendant and paid on March 7, 2008, the date of defendant's arrest. Additionally, defendant's mother testified she loaned her son $800 on March 7, 2008, "to help him with the money he already had to purchase a car."
Defense counsel told the jury in her summation that the State's expert, Detective Roberts, was not an independent witness because she was employed and paid by the prosecutor's office. She also argued that defendant had accounted for the amount of money he had at the time of his arrest, and she claimed the State failed to prove beyond a reasonable doubt that defendant "intended to distribute cocaine." In response, the prosecutor urged the jury to carefully consider the credibility of the witnesses and the various facts that Detective Roberts relied upon in reaching her opinion. The jury deliberated for approximately two hours before rendering its verdict on July 24, 2009.
Prior to trial the court denied defendant's motion to dismiss the indictment. Defendant now argues the motion should have been granted. Defendant claims, among other things, that the indictment was defective because the assistant prosecutor failed to inform the grand jury that defendant possessed a straw at the time of his arrest. According to defendant, the straw was exculpatory evidence because it showed the cocaine was possessed for personal use, and not for distribution.
The purpose of the grand jury is to "determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). It is "an accusative rather than an adjudicative body," and requiring it "to weigh inculpatory and exculpatory evidence would alter the grand jury's historical role." Id. at 229-30. Accordingly, a prosecutor's duty to present exculpatory evidence "is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237. In this case, the trial court found that the State established a prima facie case that defendant possessed cocaine with intent to distribute and that defendant's possession of a straw was not clearly exculpatory. Those findings are amply supported by the record and, in our view, the matter was correctly decided.
Defendant also argues that his motion to suppress evidence should have been granted because his arrest was based on the erroneous belief that he assaulted his girlfriend. When reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we are "neither bound by, nor required to defer to," the trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010).
In the present matter, Officer Shearer testified he was about "fifteen yards" from defendant when he observed defendant punch Ms. Bryant "in the left jaw." Based on that testimony, the court found there was probable cause for defendant's arrest and the search was incident to a lawful arrest. We conclude from our independent review of the record that there was sufficient credible evidence to support the trial court's findings, and defendant's motion to suppress was properly denied. See N.J.S.A. 40A:14-152 (authorizing police officers to "apprehend and arrest any disorderly person or any person committing a breach of the peace").
Additionally, defendant argues for the first time the admission of an authenticated map of the public parks in the Borough of Somerville, without testimony from someone involved in the preparation of the map, violated his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We do not agree.
To correctly apply the Crawford analysis, we must consider "whether the particular evidence is admissible under the ordinary rules of evidence" and "whether it is testimonial, thus requiring the declarant to be available for cross-examination." State v. Chun, 194 N.J. 54, 139, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). In this case, the park zone map was approved by Ordinance 2057, and it was admissible pursuant to N.J.S.A. 2C:35-7.1(e). The map also satisfied the business record (N.J.R.E. 803(c)(6)) and the public record (N.J.R.E. 803(c)(8)) exceptions to the hearsay rule, and the map was not testimonial within the contemplation of Crawford. Furthermore, the State presented sufficient proofs, apart from the map itself, to establish defendant was within the 500-foot park zone at the time of his arrest. Accordingly, we find no error.
Defendant's remaining arguments pertaining to his convictions are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2). However, there are sentencing issues that need to be addressed.
Initially, defendant argues that he could not possess cocaine with the intent to distribute it within 500 feet of a public park unless he possessed the cocaine with an intent to distribute. Therefore, he contends his third-degree conviction for possession of cocaine with intent to distribute (count two of Indictment No. 08-04-0207) should merge with his second-degree conviction for possession of cocaine with intent to distribute within 500 feet of a public park (count one of Indictment No. 08-04-0207). The State agrees, and we concur. See State v. Gregory, 336 N.J. Super. 601, 607 (App. Div. 2001) (noting that the Legislature intended to preserve "the more stringent punitive impact" of a second-degree conviction "by merging the Section 5 third-degree conviction into the Section 7.1 second-degree conviction and sentencing defendant as a second-degree offender").
It is also clear that when defendant entered his guilty plea to third-degree possession of cocaine (count one of Indictment No. 09-05-0400), the State waived its right to request an extended term and agreed to recommend that defendant be sentenced to a period of probation subject to various conditions. Thus, we agree, as does the State, the ten-year sentence imposed for defendant's guilty plea to third-degree possession of cocaine must be vacated and remanded for resentencing.
Defendant also contends the imposition of a ten-year term with five years of parole ineligibility for second-degree possession of cocaine within 500 feet of a public park is excessive. According to defendant, he "should [have been] sentenced to a term of five years." We disagree.
Defendant was forty-four years old when he was sentenced on October 2, 2009. He had a prior conviction for possession of a controlled dangerous substance (CDS) with intent to distribute, and prior convictions for third-degree possession of CDS and first-degree aggravated manslaughter. As the trial court noted, defendant was released from prison for "just ten months" before he committed another crime. The trial court found three aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no mitigating factors. Those findings are supported by competent credible evidence in the record, and we find no error in the court's analysis or the result it reached.
As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).
Defendant's conviction and sentence for second-degree possession of cocaine with intent to distribute within 500 feet of a public park are affirmed. The matter is remanded for the purpose of merging defendant's third-degree conviction for possession of cocaine with intent to distribute into his second-degree conviction for possession of cocaine with intent to distribute within 500 feet of a public park, and for resentencing on his conviction for possession of cocaine.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
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