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State of New Jersey v. Michael T. Powell


July 2, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0578.

Per curiam.


Submitted May 16, 2012

Before Judges Lihotz, Waugh, and St. John.

Defendant Michael T. Powell appeals from his conviction for third-degree possession of a controlled dangerous substance, cocaine, contrary N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, in the amount of one-half ounce or more, but less than five ounces, contrary to N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count three). He also appeals from his sentence to an extended term of incarceration for fifteen years with a seven-and-one-half year period of parole ineligibility. We affirm Powell's conviction and base sentence, but remand for resentencing so that the required period of parole ineligibility can be determined in accordance with this opinion.


We discern the following facts and procedural history from the record on appeal.

On the night of November 5, 2008, Newark Police Detective Horatio Lorenzo and four other officers set up a surveillance of an apartment building on 13th Avenue in Newark, which was within 1000 feet of school property. They were acting in response to citizen complaints that drug dealing was taking place at that location. They understood that some of the apartments in the building were occupied, while others were not, and that squatters frequented the vacant portions of the premises.

The officers monitored the building from unmarked police vehicles parked across the street. Through the use of night vision binoculars, Lorenzo observed someone knock on the front door of the building. When the front door opened slightly, the person handed what appeared to be money to someone else inside the building, who then closed the door. The man inside the building was subsequently identified as Powell. "A few seconds later," Powell opened the door and handed something to the person standing outside of the building, who then left the area and was never located.

Because Lorenzo concluded he had witnessed a drug transaction, Lorenzo and the other officers walked to the building and "banged" on the front door. When Powell opened the door slightly, Officer Louis Gueddes wedged his flashlight in the doorway to prevent Powell from closing the door. The officers then identified themselves and pushed their way into the vestibule of the building.

As the officers entered, Powell ran up a flight of stairs and through a door to another floor of the building. While running up the stairs, Powell discarded a plastic bag, which was later determined to contain glass vials of cocaine. According to Lorenzo, the discarded bag contained approximately twenty glass vials.

After he reached the second floor, Powell ran past three or four apartment doors before entering a vacant apartment. He tried to shut the apartment door, but the officers pushed their way into the apartment and arrested him. No one else was in the hallway or apartment when the officers apprehended Powell.

Powell was found to have $114 in cash in his possession when arrested. In the apartment, the police found "numerous" bags containing glass vials of cocaine and ninety-two glassine envelopes containing heroin.

The glass vials recovered from the bag discarded on the steps and the vials recovered from the vacant apartment were inventoried together, rather than separately. A total of 723 glass vials of cocaine were recovered. They contained 26.8153 grams of cocaine, according to the laboratory report.

Powell was indicted on February 25, 2009. In addition to the three counts for which he was convicted, Powell was also charged with third-degree possession of a controlled dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count four); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (count five); and third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count six).

Powell was tried before a jury over five days between March 24 and April 1, 2010. The jury found him guilty on the counts related to possession of cocaine, but not guilty on the counts related to possession of heroin. On June 7, the trial judge merged counts one and three into count two and imposed the fifteen-year sentence, half of which he made subject to a parole disqualifier. This appeal followed.


Powell raises the following issues on appeal:




POINT FOUR: DEFENDANT RECEIVED AN EXCESSIVE SENTENCE Because the first three issues are being raised for the first time on appeal, we apply the plain error standard of appellate review. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). As related to a jury charge, plain error has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).


In his first point, Powell argues that the jury was confused by the jury instructions and verdict sheet with respect to the issue of the amount of cocaine in his possession. He contends that the judge should have distinguished between actual possession, the cocaine dropped on the stairs, and constructive possession,*fn1 the cocaine and heroin found in the apartment. The distinction is important, he argues, because the jury's acquittal on the heroin charges represented a finding that he did not possess the heroin found in the apartment.

A conviction for second-degree possession with intent to distribute requires proof of possession of one-half ounce or more, but less than five ounces, of cocaine. N.J.S.A. 2C:35-5(b)(2). Possession of a smaller amount is a third-degree offense. N.J.S.A. 2C:35-5(b)(3). Powell points to the facts

(1) that the police aggregated all of the cocaine for the purpose of determining its weight and (2) that the jury acquitted him of the counts related to the heroin found in the apartment. He also contends that the jury must have concluded that he did not possess any of the drugs found in the vacant apartment, but only possessed the cocaine in the bag dropped on the stairs. He then argues that, because the jury was not properly charged on the difference between actual and constructive possession, the jury must have convicted him of second-degree possession based solely on the cocaine found on the stairs, which did not satisfy the weight requirement for a second-degree offense.

The trial judge charged the jury as follows with regard to count two:

Now, . . . the possession of cocaine with intent to distribute, if you find the defendant guilty of that offense, you must then determine the quantity of cocaine involved. It is the State's burden to prove beyond a reasonable doubt the quantity of the cocaine involved. The State need not prove defendant's knowledge of the quantity of the drugs so long as it proves beyond a reasonable doubt that the defendant knowingly possessed the cocaine. Specifically -- that's with the intent to distribute.

Specifically, you must determine if the quantity of cocaine is one-half ounce or more, but less than five ounces; or less than one-half ounce has been proven. And after determining which one of these quantities the State has proven beyond a reasonable doubt, you should mark the appropriate section of the verdict sheet which will be supplied to you.

Consequently, the jury was directly charged that it had to determine whether Powell possessed cocaine and, as a separate issue, the amount of cocaine possessed by him. Defense counsel did not object to that charge or ask that there be an additional charge distinguishing between actual and constructive possession.

We note that Powell's defense at trial was that he possessed none of the drugs, including those allegedly found on the stairs. In fact, defense counsel argued that all of the cocaine was in one evidence container because they had all been found in the vacant apartment. She attacked Lorenzo's credibility and argued to the jury that Powell had been set up by the police officers. Defense counsel never suggested that the jury should find that Powell possessed the vials found on the stairway, but did not possess more than the one-half ounce threshold. In other words, the defense strategy was aimed at obtaining an acquittal rather than a conviction for the third-degree offense.

During deliberations, the jury asked to "hear the testimony about the detectives entering the first [sic] and seeing Mr. Powell drop the bag of drug[s]." The jury also asked about the location of "the bag" and "what amount was in it." In response, the judge told the jury that it is the recollection of the attorneys that . . . Lorenzo testified that everything that was found was inventoried together. That's what the attorneys recall that he testified.

It's your recollection that governs. And, of course, the credibility of the witness --of any witness is up to you to decide. So, that's that.

The judge then asked the jurors to go back into the jury room and determine whether they still wished to hear Lorenzo's testimony, which he told them would have to be played in full.

The jurors subsequently responded and asked to rehear the testimony, which was eventually played back for them. At the same time, the jury asked the judge to explain count two. In response, the judge reiterated the charge as following:

If you find him guilty of possession of cocaine, you with me so far? I'm sorry, possession with intent to distribute cocaine, if you find him guilty of possession with intent to distribute cocaine, then you have to make a decision as to whether the state has proved beyond a reasonable doubt that the amount was over a half an ounce. Did they prove beyond a reasonable doubt that it was over a half an ounce? Guilty or not guilty? Or, did they only prove beyond a reasonable doubt that it was under a half an ounce in quantity.

Powell did not object to the judge's response to either of the jury's questions.

During the play back, the jury was reminded that Lorenzo testified (1) that the bag dropped on the stairs contained approximately twenty vials, (2) that a total of 723 were recovered altogether, (3) that the vials found in the apartment had green and purple colored caps, (4) that the vials found on the stairs were "identical" to the ones found in the apartment, and (5) that Powell dropped the small number of vials on the steps and immediately ran into an apartment with identical vials and tried to prevent the police from entering. Based upon those facts, we see no realistic possibility that the jury found Powell guilty of possessing enough cocaine for the second-degree offense based solely on his possession of approximately twenty out of a total of 723 vials recovered from the building, as Powell contends.

We are cognizant that "error in a jury instruction that is 'crucial to the jury's deliberations . . .' is a 'poor candidate[] for rehabilitation' under the plain error theory." State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Nevertheless, an appellate court must review the "alleged error in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). And, we must also evaluate such errors "in light 'of the overall strength of the State's case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).

Applying those standards, we see no basis to reverse the conviction for second-degree possession with intent. The jury was clearly aware of the need to determine the amount of cocaine; and its questions demonstrated an understanding that the amount of cocaine in the bag dropped on the stairs was important to that determination, which is why it persisted in its request to hear Lorenzo's testimony again. Having done so, and having heard facts that fully supported a finding that the cocaine on the steps and the cocaine in the apartment were in identical vials, the jury concluded that the cocaine in the apartment also belonged to Powell. Had the jury concluded that Powell possessed only the small number of vials found on the stairway, we are convinced it would not have found that he possessed the larger quantity indicated on the verdict sheet, which would have resulted in a third-degree conviction.*fn2

We reject Powell's argument that the jury's acquittal on the heroin related charges necessarily means that the jury determined that he possessed none of the drugs found in the apartment. Because there was no heroin found on the steps and the heroin was in different containers than the cocaine, the jury could have concluded that the cocaine found in the apartment belonged to Powell, but the State failed to prove its case on the charges related to the heroin.


Powell next argues that Lorenzo's testimony regarding the officers' reason for conducting surveillance of the building was inadmissible hearsay which denied him a fair trial. We disagree.

During direct examination, the following exchange occurred between the assistant prosecutor and Lorenzo:

Q. Now, Officer, why were you . . . in the area of [an address on] Thirteenth Avenue?

A. Um, that location had received so many complaints from citizens that, um, once it continues to come up in the computer system, the Newark Police Department will launch a narcotic investigation. They forward that investigation to our unit, as well as other units throughout the city, so we can address those complaints.

Powell argues for the first time on appeal that the judge erred in allowing that testimony.

The Supreme Court has held that "both the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005) (citing State v. Bankston, 63 N.J. 263, 268-69 (1973)); see also State v. Luna, 193 N.J. 202, 216-17 (2007). However, an officer may testify that he or she took a particular action "based upon information received" when it is necessary to explain the officer's action, particularly when there is an allegation that police acted arbitrarily. Bankston, supra, 63 N.J. at 272.

In contexts other than a photographic identification, the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. [Branch, supra, 182 N.J. at 352.]

In determining whether such testimony was harmless, in the context of a case in which there had been an objection, the Supreme Court held that

[t]he test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 335-336 (1971). Or, as stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173 (1963), "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." [Bankston, supra, 63 N.J. at 273.]

There is no "mathematically precise formula for deciding whether a trial error creates a reasonable doubt that would not otherwise have existed concerning defendant's guilt." Branch, supra, 182 N.J. at 353. If an appellate court's review of the record suggests that it was a close case, reversal is appropriate if the evidence at issue "may have tipped the scales" in favor of a conviction. See id. at 353-54.

The State argues that Branch expressly acknowledges that it is a "well-established principle" that police may testify that they took particular actions based on "information received." Although the State is correct, a fair reading of Branch suggests that the Court essentially modified the "well-established principle" to create a three prong test which must be satisfied before police officers may testify that they took a particular action based upon "information received." Accordingly, in order to be admissible, such testimony: (1) must be "necessary to rebut a suggestion that they acted arbitrarily"; (2) must be limited to the phrase "based on information received"; and (3) cannot "create an inference that the defendant has been implicated in a crime by some unknown person." Id. at 352.

The State's argument fails to recognize that Lorenzo's testimony does not satisfy the first two requirements of Branch, in that (1) there was no allegation of arbitrary action by the police in setting up the surveillance and (2) Lorenzo failed to use the required phrase "based on information received." Nevertheless, we find it significant that Lorenzo did not suggest that Powell himself was in any way implicated in drug transactions at that location. Consequently, we conclude that the error was harmless and that there is no significant "degree of possibility that it led to an unjust verdict." Bankston, supra, 63 N.J. at 273.


Powell's third argument is that the trial judge erred by giving a charge on flight at the request of the State. Although defense counsel did not object to the charge at trial, Powell now argues that the trial judge erred because he instructed the jury that it could consider flight as consciousness of guilt "for the offenses charged in the indictment," despite the fact that the bulk of the glass vials of cocaine were not discovered until after the alleged flight into the apartment.

Powell relies on State v. Mann, 132 N.J. 410 (1993), for the proposition that such a charge is appropriate only as to flight that occurs subsequent to the commission of the charged offense. In Mann, the Supreme Court was primarily addressing the issue of whether an attempted suicide following the commission of a crime could be the subject of a charge similar to a flight charge. Id. at 421. In the process, however, the Court reviewed the law with respect to flight. Id. at 418-21. The overarching consideration governing the admission of evidence "of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." Id. at 418 (citations omitted).

"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." Id. at 419 (citing State v. Wilson, 57 N.J. 39, 49 (1970)). However, mere departure is distinguishable from "flight."

For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. [State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).]

The Supreme Court has held that "evidence of flight is probative if the flight is accompanied by an intent to avoid detection or apprehension." State v. Ingram, 196 N.J. 23, 46 (2008). "[D]eparture to avoid detection or apprehension" is "[t]he logically required tipping point." Id. at 47.

The propriety of admitting the evidence and delivering the instruction depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. [State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (emphasis omitted) (quoting Mann, supra, 132 N.J. at 420).]

Whether there is sufficient evidence in the record to support a flight charge is a decision left to the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990).

We are satisfied that there was sufficient evidence to warrant the judge's exercise of his discretion to give the flight charge. Although all of the evidence was not discovered until the police officers entered the apartment, the State's case was that Powell possessed the drugs before the police arrived on the scene and that he was storing the bulk of his holdings in the vacant apartment.

After the police pounded on the front door, Powell opened it. Once they announced who they were, Powell tried to shut the door. When he was unsuccessful, he ran up the stairs, down the hall, and into the vacant apartment, where he again attempted to shut the door. That evidence was probative of guilt because it supported an inference that Powell was seeking to avoid apprehension, to dispose of the bulk of the drugs, or both. The inferences outlined in Latney, supra, 415 N.J. Super. at 176, were all present.


Finally, Powell argues that his sentence was excessive. He specifically argues that the trial judge erred with respect to his determination of the sentencing factors and in imposing a seven-and-one-half-year period of parole ineligibility. He does not, however, challenge the judge's decision to impose an extended sentence.

"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363- 65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Based upon his prior record, Powell was eligible for a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). He was also eligible for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), based on the nature of his prior drug offenses. The primary difference between the two statutes is that N.J.S.A. 2C:43-6(f) requires the imposition of a period of parole ineligibility. Powell challenges the length of the period of parole ineligibility rather than the extended term itself.

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. The analysis for mandatory extended terms focuses on the 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).

Powell was convicted of possession of between one-half ounce and five ounces of cocaine with intent to distribute, which is a second-degree offense. The extended-term sentencing range was five to twenty years. See Pierce, supra, 188 N.J. at 169; N.J.S.A. 2C:43-6(a)(2); N.J.S.A. 2C:43-7(a)(3). Because the prosecutor requested the judge to sentence Powell to an extended term pursuant to N.J.S.A. 2C:43-6(f), the judge was required to impose a period of parole ineligibility of between one-third and one-half of the sentence actually imposed, but not less than three years.

In sentencing Powell, the trial judge found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("extent of the defendant's prior criminal record" and "seriousness of" prior convictions); N.J.S.A. 2C:44-1(a)(9) ("need for deterring the defendant and others"). The judge also found that defendant's "learning difficulties and [lack of] appreciable family support" was a mitigating factor. Although the judge referred to mitigating factor "number 14," which does not exist, we assume that he was referring to mitigating factor four,*fn3 the existence of "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense." N.J.S.A. 2C:44-1(b)(4). Ultimately, the judge concluded that the "aggravating factors substantially outweigh[ed] any mitigating factors." That conclusion is supported by the record.

Powell argues that the trial judge erred in finding aggravating factor three, risk of another offense. Powell points to the judge's statement that Powell did not "accept any responsibility" and "express[ed] no remorse," and argues that the judge applied aggravating factor three because he had maintained his innocence following his conviction.

The Supreme Court has expressed its disapproval of "a practice of calling routinely upon defendants at sentencing to disavow their stance of innocence." State v. Poteet, 61 N.J. 493, 497-98 (1972); see also State v. Marks, 201 N.J. Super. 514, 539-40 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986); N.J.S.A. 2C:44-1(c)(1). However, a sentencing judge's reference to a defendant's failure to admit his guilt does not warrant reversal absent a specific request from the judge that the defendant do so, or evidence which suggests the defendant's failure to admit guilt enhanced his sentence. See Poteet, supra, 61 N.J. at 499 ("[T]he trial court did not ask [the defendant] to concede his guilt, and nothing in the transcript suggests that his sentence was enlarged because he did not confess."); see also Marks, supra, 201 N.J. Super. at 540 ("[T]he trial judge's brief allusion to defendant's failure to candidly admit his guilt does not require a reversal. . . .

[D]efendant ultimately confessed his role in the crimes to his psychiatrist. The trial court expressly referred to that fact. . [W]e are satisfied that [the] defendant was not . . . prejudiced.").

In sentencing Powell, the judge made, at best, a passing reference to Powell's failure to admit guilt, and he never requested Powell to admit his guilt. More importantly, the judge clearly considered facts concerning Powell's prior record that fully support application of aggravating factor three:

None of the defendant's previous adult probationary terms or adult state prison terms deterred him from his ongoing criminal conduct. There's a high risk that he will commit another offense . . . . It is notable that this is his fifth conviction and third adjudication relating to a controlled dangerous substance charge. He has clearly not been dissuaded from this type of conduct by prior punishments. . . . And in the case of a persistent and repeat offender, such as this defendant, there's a great risk that the defendant will continue to commit crimes to the public detriment, expense and peril if a sufficiently deterrent sentence is not imposed.

Consequently, we find no error in the judge's application of aggravating factor three.

Powell next contends that, because the judge imposed a base term five years below the top of the sentencing range, he erred by imposing the maximum permissible period of parole ineligibility, one half of the fifteen-year base term. Powell relies on State v. Kirk, 145 N.J. 159, 178 (1996) (citations and internal quotation marks omitted), in which the Supreme Court held that a sentencing judge's "flexibility" in determining the length of the period of parole ineligibility "should be applied so that ordinarily the longest permitted term of parole ineligibility would be imposed only on base terms at or near the top of the range for that degree of crime."

Because the trial judge did not separately explain why he imposed the maximum period of parole ineligibility, we remand for resentencing as to that issue. We affirm the sentence as to the base term itself.

Affirmed in part, remanded in part. We do not retain jurisdiction.

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