July 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AZARIAH GREENE, AKA DREAD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-05-00736.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically on June 13, 2012 --
Before Judges A. A. Rodriguez and Reisner.
Following a jury trial, defendant, Azariah Greene, was convicted of three counts of fourth-degree distribution of marijuana, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(12); and three counts of third-degree possession of CDS, with the intent to distribute same within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 and -5a. Defendant moved for a new trial. The trial judge denied the motion and sentenced defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f). After merging all convictions into the distribution conviction, the judge imposed a seven-year term of imprisonment, with a three-and-one-half-year period of parole ineligibility.
These are the proofs presented by the State at trial. Paterson Police Department Detective Brian Morgan, of the Narcotics Division, testified that, following up on a tip from a "concerned citizen," on November 16, 2007, at 7:27 p.m., he established a visual surveillance of a house on Governor Street in Paterson. The tip indicated that a "black male, described as approximately 5'9" tall, thin build, and a dreadlock hairstyle worn in two pig tails," was selling drugs from the Governor Street house's porch. Morgan was in an unmarked police vehicle and used binoculars to see the porch. He parked the vehicle on the other side of the street from the surveyed residence where he could "get a clear view of the house."
Morgan saw a young man, later identified as defendant, in the porch area "walking in and out" of the hallway area of the house. Morgan described defendant as having "two pigtails on the top of his head" and "wearing a green-like sweatshirt with gray in it." At 7:41 p.m., Morgan saw another individual, later identified as Ismael Quinones, pull up in "a purple Civic" and join defendant. Quinones "walked up onto the porch where he was met by [defendant]" and handed defendant money. In exchange, Quinones received an unidentified object. Based on his experience, Morgan concluded that a hand-to-hand drug transaction had occurred.
Morgan called in a description of the Civic. Other police officers stopped the Civic and Quinones was arrested by Detective Anthony DeGiglio. A bag of marijuana was found on the floor of the Civic. The bag weighed 1.08 grams.
Morgan continued the surveillance. Shortly after 8:00 p.m., he saw a second man, later identified as John Graziano, walk up to the porch. A similar hand-to-hand transaction occurred between defendant and Graziano. Morgan called in a description of Graziano, who was arrested shortly thereafter. A bag of marijuana, weighing 1.35 grams, was found in his possession.
Morgan continued the surveillance for another hour. No one else approached the porch. At that point, Morgan decided to arrest defendant.
Detective DeGiglio and Sergeant Otaro went to the front of the house. Other officers saw defendant running towards the back of the house. Morgan also went to the back of the house and heard a commotion inside. Morgan saw defendant in the kitchen, "kicked in the back door" and entered the house. Defendant threw an unidentified object into the kitchen garbage can and ran to the front of the house. There he was confronted by DeGiglio. Defendant was arrested. The object discarded in the kitchen garbage can turned out to be a bag, holding twenty-two smaller zip-lock bags. It was later determined by the State Police lab that the smaller bags each contained approximately 1.35 grams of marijuana.
The house's other occupants were defendant's two brothers, Joshua Greene, age nineteen, Michael Greene, age twenty-three, and defendant's girlfriend, Yanicka LaBranche. They were not arrested.
On defendant's person, Morgan found currency totaling $258. Defendant consented to a search of his room, where an additional $1,100 in currency was found.
Defendant presented LaBranche, who testified as an alibi witness. According to her, defendant remained in the house with her at a time when the police said defendant walked out to the porch to make drug sales. She and defendant were waiting for the arrival of Chinese food. The police entered the house almost immediately after the food arrived. She was adamant the police had misidentified defendant as the individual seen on the porch because defendant had never left her side. Nor did she see defendant discard a bag of marijuana into the kitchen garbage can.
On cross-examination LaBranche conceded she did not tell the police or the Prosecutor her version of events. However, she testified that she informed defense counsel shortly after the incident.
Defendant appeals, contending:
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, 10 (Partially Raised Below).
A. Failure To Provide A Jury Instruction On Identification Was Plain Error Requiring Reversal And Remand For A New Trial.
B. Failure To Provide A Jury Instruction On Cross-Racial Identification Was Plain Error Requiring Reversal And Remand For A New Trial.
We start our analysis by noting that, although defendant raised the issue of misidentification at trial, he did not seek an eyewitness identification charge mandated by State v. Romero, 191 N.J. 59, 75 (2007). We also note that this is not the typical eyewitness identification where a person is asked to testify about an event that was unanticipated by the witness. In other words, an event occurs without warning and the witness is asked to recall details, including identification of the actor. Here, Morgan was at the surveillance position for the purpose of observation. In this situation, a significant event may or may not occur, but the witness, Morgan, is ready to observe whatever occurs, whether significant or not. Thus, though defendant may have made identification an issue, the evidence presented to the jury does not support a basis for an eyewitness identification as an absolutely necessary, crucial jury instruction.
Several times during the final charge, the judge outlined for the jury the elements that the State must prove beyond a reasonable doubt. These included the necessary element that defendant committed the crime. In essence, the jury had to determine beyond a reasonable doubt whether Morgan was truthful about the observations to which he testified. These included a description of the drug-seller, not challenged at trial, as having his hair braided into "two pigtails on the top of his head," and "wearing a green-like sweatshirt with gray in it." At the time of defendant's arrest, he was wearing such a shirt and had two pigtails on top of his head. That appearance was not challenged at trial. Moreover, there was no suggestion that defendant's two brothers, the only other males inside the house, were observed with similar clothing or distinctive hairstyle.
Therefore, we conclude that this evidence was sufficient to support the identification, and the judge's failure to give a Romero eyewitness identification charge was not plain error. R. 2:10-2. We must keep in mind that not any possibility of an unjust result will suffice to create reversible error. Stated in terms of its effect in a jury trial, the possibility must be "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, 336 (1971). Put differently, plain error must be demonstrated through a "'legal impropriety in the charge 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. Nero, 195 N.J. 397, 407 (2008) (quoting 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)).
Defendant also contends:
THE COURT'S FAILURE TO INSTRUCT THE JURY AS TO SIMPLE POSSESSION OF MARIJUANA DENIED [DEFENDANT] HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9, 10 (Not Raised Below).
In order to charge a lesser-included offense, the judge must first find that "'there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting N.J.S.A. 2C:1-8(e)). The judge must consider whether the evidence at trial presents a "'rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "'[S]heer speculation does not constitute a rational basis.'" Ibid. (quoting Brent, supra, 137 N.J. at 118).
Here, there is no rational basis to conclude that defendant is guilty of simple possession. There was no testimony that defendant was smoking marijuana at anytime during the surveillance, and $1,328 was found on defendant's person and in his bedroom. According to the State's proofs, twenty-two evenly weighed baggies of marijuana were discarded by defendant into a kitchen trash can. Even if the jury's deliberations included simple possession, Morgan's surveillance testimony and the other evidence adduced tends to indicate that defendant was selling the marijuana to others.
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL (Not Raised Below).
Because we conclude that there was no harmful error created by the defendant's contentions, there is no cumulative error effect warranting reversal.
Defendant challenges his sentence contending:
[DEFENDANT'S] SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND IS NOT IN ACCORD WITH THE SENTENCING GUIDELINES FOR THE STATE OF NEW JERSEY.
A. The Sentencing Court Improperly Double-Counted Aggravating Factors.
B. The Sentencing Court
Inappropriately Found And Weighed Aggravating Factors And Otherwise Improperly Meted Out [Defendant's] Sentence.
C. The Sentencing Court Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
D. The Sentencing Court Failed To Adhere To The Principle Of Progressive Discipline In Sentencing [Defendant].
We disagree, except for the double-counting issue.
Defendant was twenty-seven years old at the time of his sentencing. He has a history of one indictable conviction for a third-degree possession of a CDS (marijuana) charge. The judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and (9) the need to deter the defendant and others from violating the law. The judge also found none of the mitigating factors listed in N.J.S.A. 2C:44-1b. Based on these sentencing factors, the judge imposed an extended seven-year term.
We agree with defendant's argument that the judge counted defendant's prior possession conviction to both impose an extended term and to find that aggravating factor six applied, and thus, warranted a sentence at the middle, rather than the bottom of the range. Such double-counting is prohibited by the Criminal Code. State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). Therefore, we find it both proper and necessary (see State v. Jarbath, 114 N.J. 394, 410-412 (1989)), to modify the judgment to impose a five-year term with a two-and-one-half-year period of parole ineligibility.
However, we reject defendant's next argument, that the court incorrectly failed to find any mitigating factors. Defendant did not provide credible evidence that his imprisonment would present a unique hardship to himself or to his dependents. Defendant is a single male with no children. Defendant's mother informed the judge that her son was an alcoholic who required medical assistance rather than prison. There was no evidence that defendant provided any meaningful financial support to his mother or other members of his family. Thus, the judge did not abuse his discretion in finding that no mitigating factors applied to defendant's sentence. State v. Bieniek, 200 N.J. 601, 609 (2010).
We also reject defendant's argument that the judge abused his discretion by failing to apply the "principles of progressive discipline." Though these principles are applicable to administrative discipline of public employees, see In re Carter, 191 N.J. 474, 483-85 (2007), our courts have not adopted such principles in criminal sentencing.
In a supplemental pro se brief, defendant also raises four additional claims of error:
A NEW TRIAL IS REQUIRED DUE TO THE TESTIMONY OF THE STATE'S WITNESS WHICH DIRECTLY COMMENTED UPON THE DEFENDANT'S CONSTITUTION[AL] RIGHT TO REMAIN SILENT; THE COURT DID NOT PROVIDE A CURATIVE INSTRUCTION.
A NEW TRIAL IS REQUIRED DUE TO THE COURT'S IMPROPER INFRINGEMENT UPON JURY DELIBERATIONS.
DEFENSE COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS RESULTED IN A MANIFEST DENIAL OF JUSTICE.
A PROPER FOUNDATION WAS NEVER ESTABLISHED FOR THE PHOTOGRAPHS SINCE THEY FAILED TO ACCURATELY DEPICT THE SCENE.
We reject defendant's arguments because we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Summarizing, the sentence is modified to impose a five-year term with a two-and-one-half-year period of parole ineligibility. As modified, the judgment of conviction is affirmed. The matter is remanded to the Law Division, Passaic County, for entry of a corrected judgment in accordance with this opinion.
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