September 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TIMOTHY D. BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2642.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012 Before Judges Payne, Reisner and Hayden.
Defendant, Timothy D. Brown, appeals from his conviction by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute it within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four); third-degree distribution of heroin, N.J.S.A. 2C:35-5b(3) (count five); third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count six); and second-degree distribution of heroin within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count seven).
Defendant also appeals from his sentence of five years in custody with a three-year period of parole ineligibility on count three (possession with the intent to distribute within 1,000 feet of school property); a concurrent sentence of ten years with a five-year period of parole ineligibility on count four (possession with the intent to distribute within 500 feet of public property); a concurrent sentence of five years with a three-year period of parole ineligibility on count six (distribution within 1,000 feet of school property); and a concurrent extended sentence of twelve years with a six-year period of parole ineligibility on count seven (distribution within 500 feet of public property).
On appeal, defendant raises the following issues through counsel:
Point One THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY AS TO THE LESSER INCLUDED OFFENSE OF WANDERING OR REMAINING IN A PUBLIC PLACE WITH PURPOSE OF OBTAINING OR SELLLING CONTROLLED SUBSTANCES WAS REVERSIBLE ERROR. Point Two DETECTIVE BENNETT'S OPINION TESTIMONY USURPED THE ROLE OF THE JURY.
Point Three DETECTIVE MADERA IMPROPERLY BOLSTERED THE CREDIBILITY OF DETECTIVE BENNETT.
Point Four DEFENDANT RECEIVED AN IMPROPER AND EXCESSIVE SENTENCE.
In a pro se brief, defendant raises the following additional argument:
THE TRIAL WAS TAINTED BY UNFAIR COMMENTS MADE BY THE PROSECUTOR TO THE JURY, WARRANTING VACATION OF THE VERDICTS OBTAINED.
We affirm defendant's convictions and remand for correction of his judgment of conviction.
At the trial in this matter, Detective Tracy Bennett, a member of the Essex County Sheriff's Office Bureau of Narcotics, testified that, on July 9, 2009 at 9:50 a.m., he was working undercover in the area of 16th Avenue and South 13th Street in Newark, an area known for narcotics activity. He was in an unmarked vehicle, and four other officers were present in the area in two unmarked vehicles as back-up. While conducting surveillance in that area, Detective Bennett observed defendant standing on the southeast corner of the intersection of the two streets. A man in his early sixties or late fifties, later identified as sixty-four year old Ronald Jones, approached him, and the two engaged in a brief conversation. Defendant then went to the rear of a particular residence on South 13th Street, reached under the vinyl siding, and retrieved an item - conduct that Detective Bennett observed after moving his vehicle to a better vantage point. After retrieving the item, defendant returned to the waiting Jones, where he exchanged the item for paper currency. Jones then put the object in his left pants pocket, while defendant placed the currency in his right pocket.
Following the exchange, Detective Bennett advised the backup units of defendant's and Jones's descriptions, and the directions in which they were walking. One of the units detained Jones, who was found to have four glassine envelopes of heroin stamped "boost" in his left pants pocket. Defendant was detained by the other unit. A search incident to defendant's arrest revealed a small amount of currency but no drugs. However, investigation of the location under the vinyl siding disclosed two magazine wraps containing ninety-two envelopes of heroin, seventy-two of which were marked "boost." A weapon with a magazine containing nine rounds was also recovered from the location.
The detective stated that the location at which the exchange occurred was across the street from a baseball field, located within a public park. It was also within 1,000 feet of Harriet Tubman School and within 500 feet of a public housing complex known as West Side Village.
At the conclusion of the trial, defendant was found guilty of the drug charges that we have enumerated. He was found not guilty of charges of unlawful possession of a handgun and possession of a handgun in connection with a narcotics offense. A charge of receipt of stolen property consisting of the gun was dismissed by the State. Following sentencing, this appeal was filed.
On appeal, defendant first argues that the trial court erred in denying defense counsel's request that the judge charge, as a lesser-included offense of the crime of possession of heroin, the disorderly persons offense of wandering or remaining in a public place with the purpose of obtaining or selling controlled dangerous substances, N.J.S.A. 2C:33-2.1. We disagree.
At the charge conference, defense counsel argued that the jury could find the testimony of Detective Bennett implicating defendant as a drug dealer to have been incredible. If it did so, it could also find that when defendant and Jones met, defendant intended to purchase heroin from Jones, but was deterred from doing so by the presence of the undercover officer. As a consequence, no sale took place, and the two actors simply walked away. Such a scenario was supported by the fact that, when Jones was detained, he had four folds of heroin on his person, as well as $101, whereas defendant had no drugs, and only possessed $25 in cash. If the jury believed this scenario, it could conclude that defendant wandered into the area with the purpose to unlawfully obtain heroin from Jones, and by doing so, he violated N.J.S.A. 2C:33-2.1b(1).
The Court has held:
The determination of whether an offense is included within an offense charged is not open-ended. N.J.S.A. 2C:1-8e explains that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." Thus, whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a rational basis in the evidence to support a charge on that included offense. [State v. Thomas, 187 N.J. 119, 131 (2006).] Defendant concedes that: "The elements of the charged drug counts and the requested wandering count are neither identical nor so interconnected that proof of possession necessarily entails proof of the requested disorderly persons offense." Nonetheless, defendant contends that the "the evidence reveals a rational basis for the jury to acquit of the greater and convict of the lesser offense."
We find no support for defendant's contention. The statutory provision that defendant claims is applicable is N.J.S.A. 2C:33-2.1b(1), which states:
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance . . . and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance . . . .
The remainder of the statute provides:
c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance . . . includes, but is not limited to, conduct such as the following:
(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;
(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;
(3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.
D. The element of the offense described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.
We construed the statute in State v. Kazanes, 318 N.J. Super. 421 (App. Div. 1999), a case in which evidence demonstrated a hand-to-hand transfer of drugs for money by two people on bicycles. The purchaser, when stopped by the police, proceeded to swallow his purchase. Id. at 424. He was subsequently charged and convicted by a municipal judge of wandering and resisting arrest, and his convictions were sustained by a Law Division judge following a trial de novo on the municipal record. Id. at 423. Upon further appeal, we sustained the conviction for resisting arrest but reversed the wandering conviction. Ibid.
Our review of the evidence satisfied us that it was sufficient to demonstrate that the defendant had engaged in conduct that manifested a purpose to obtain a controlled dangerous substance, thereby satisfying N.J.S.A. 2C:33-2.1b(2). Id. at 425. However, we noted that the statute at issue "was enacted to protect the quality of life in public places by interdicting persons who linger or circulate there for the specific purpose of engaging in drug transactions." Ibid. (footnote omitted). And with that in mind, we concluded that the evidence of wandering, required by subparagraph b(1) was absent from the case. Id. at 425-26. The only evidence that was presented was of an observed hand-to-hand transfer between the defendant and a known drug dealer - a "meeting and an exchange." Id. at 426. There was no evidence of the defendant's movements prior to the sale. Ibid.
Similarly, in the present matter, the evidence merely established a hand-to-hand transfer, and lacked any proofs that would satisfy the element of wandering. As we stated in Kazanes, "we are persuaded that the wandering element of section b(1), as well as the other verbs, to remain, to prowl, require more than the mere going from point A to point B, engaging in a drug transaction and leaving. The statute requires some sense of hanging about or lingering in an attempt to make a drug connection." Ibid. We find that observation equally applicable here and, as a result, find no error in the trial judge's determination not to charge the jury in accordance with the wandering statute.
At trial, the following exchange occurred between the prosecutor and Detective Bennett regarding his actions after defendant had been detained.
Q Okay. At that point, what did you do?
A Oh, myself and Detective Garnes went to the rear of [a building on] South 13th Street.
Q And why did you go to the rear of [that building on] South 13th Street?
A To investigate what I observed to be a narcotics transaction.
Q Well, you observed a narcotics transaction on the corner, correct?
Q Okay. So why did you go behind [the building on] South 13th Street?
A To retrieve items that I thought - to get the narcotics after they recovered it from Mr. Jones.
Although no objection to this line of questioning was raised at the time, defendant now claims that, by testifying as he did, Detective Bennett was testifying as an expert without being qualified as such, and that his opinion testimony usurped the role of the jury and constituted plain error. In support of his argument, defendant relies on State v. McLean, 205 N.J. 438 (2009).
In McLean, undercover officers conducting a surveillance observed the defendant engage in two hand-to-hand transfers of an object for money. Observations connected with the second transaction suggested that the defendant was using his car, located in a nearby parking lot, as his stash. Although neither of the purchasers was detained, so the fact of a drug sale was not confirmed, back-up units were instructed to move in on the defendant who, at the time, was seated in his car. Upon doing so, one of the detectives saw what he believed to be a package of heroin in plain sight. In fact, the package contained ten envelopes of the substance. A further search disclosed crack cocaine and $384 in cash in the vehicle. Id. at 442-44. At trial, the defendant conceded that the drugs were his, but he claimed they were for personal use. He testified that a portion of the money found in the car had been given to him by his aunt, and the rest constituted winnings at dice. Id. at 447. Thus, the issues for the jury were whether the defendant possessed the drugs for purposes of distribution, and whether he had distributed them.
At trial, a police witness who was not qualified as an expert testified on two occasions that he had seen the defendant "engage in two suspected hand-to-hand transactions" after going to his car to "retrieve his suspected drugs from his suspected drug stash." Id. at 445. Additionally, the witness was permitted to respond to the question: "And . . . in your experience, did you at that - well let me - strike that. At that point, did you suspect that this was a hand to hand drug transaction?" In responding affirmatively, the witness again referred to the defendant by name. Ibid.
In an appeal that focused on the testimony we have just described, the Court held that the testimony had been improper. As a lay witness, the detective could testify to what he saw.
Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag. [Id. at 460.]
The Court then gave illustrations of topics that were appropriate for expert testimony, including the roles played by persons in a drug distribution scheme, the significance of quantities of narcotics, and the significance of packaging. Id. at 460-61.
However, the Court rejected the notion that the lay opinion rule authorized a police officer, after offering the facts, to testify to their significance by stating what the witness "believed," "thought" or "suspected" had occurred. Id. at 460-61.
Were we to adopt that approach, we would be transforming testimony about an individual's observation of a series of events, the significance of which we have previously held does not fall outside the ken of the jury into an opportunity for police officers to offer opinions on defendants' guilt. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. [Id. at 461 (citation omitted).]
After considering the testimony of the police detective at issue, the Court held that, because questioning in part turned on the detective's training, education and experience, it actually called for an impermissible expert opinion. And to the extent that it was offered as lay evidence, it was impermissible because it was an expression of belief in the defendant's guilt and because it presumed to give an opinion on matters that were not beyond the jury's ability to understand. Id. at 463. As a consequence, the defendant's distribution convictions were reversed, and those charges were remanded for a new trial.
Turning to the testimony in the present matter, we do not find the prejudice to defendant to exist that clearly was present in McLean. Here, it had been established by the State as a matter of fact that Detective Bennett had observed a hand-to-hand transfer of an object for currency and that the object had been obtained from under the vinyl siding of a nearby building. However, unlike McLean where objects transferred to the two purchasers were never definitively identified, in the present case there was also testimony that the detective saw the purchaser, Jones, place the object in his left pants pocket, and that when he was detained and searched, his left pants pocket was found to contain four envelopes of suspected heroin and nothing else. Thus the conclusion that those four envelopes constituted the object, and that a narcotics transaction had occurred was factually supported. Detective Bennett never testified that he "believed" such a transaction to have taken place; he testified to first-hand observations.
If, however, the testimony was improper, we do not find it to have been such that was clearly capable of producing an unjust verdict. R. 2:10-2; State v. Macon, 57 N.J. 325, 336-38 (1971). The reference to a drug transaction was fleeting, and could so clearly be deduced from the evidence that the jury could not possibly have been improperly influenced.
Defendant next challenges testimony by the State's witness, Detective Alejandro Madera regarding the money found on defendant and Jones. During his testimony Detective Madera stated that $101 was found on Jones and that $25 was found on defendant. The following exchange then occurred:
Q Okay. And what happened with the $101?
A It was given back to him.
Q How come?
A Because he - there was no need to confiscate his money.
At this point, defense counsel objected, but then withdrew her objection, whereupon the Detective testified that there was no need to confiscate the money because Jones had not sold narcotics and thus the money did not constitute evidence of a sale. However, he testified that the money had been confiscated from defendant.
On appeal, defendant contends that the Detective's testimony was hearsay that improperly bolstered the testimony of Detective Bennett that he had observed defendant distribute drugs to Jones, and that its admission was plain error. However, our review of the testimony at issue satisfies us that it was not hearsay.
Implicit in Detective Madera's testimony is the fact that Detective Bennett informed him that defendant was the seller in a drug transaction, and that statement led to Madera's decision to retain the money confiscated from defendant. In this context, Detective Bennett's statement was admissible. The Court has stated:
Our Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). We have made clear that
[u]nder that definition, the hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant.
It follows, therefore, that if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial. But if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule. [Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (quoting State v. Long, 173 N.J. 138, 152 (2002)(citations omitted)).]
In Carmona, the plaintiff alleged retaliation in violation of the Law Against Discrimination, N.J.S.A. 10:5-12d, after he complained about alleged unfair treatment, and he was terminated. Id. at 359. The employer, Resorts International, claimed that the plaintiff was terminated as the result of misconduct. An issue on appeal to the Supreme Court was the admissibility of an investigative report of the plaintiff's conduct as evidence of Resorts' actual motivation for terminating the plaintiff. Id. at 376. The Court found the report not to constitute hearsay and to be admissible, stating in language relevant to the present matter:
As a general proposition, "[w]here statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay. [Ibid. (quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456-57 (App. Div.) (citing Jugan v. Pollen, 253 N.J. Super. 123, 136-37 (App. Div. 1992); Statham v. Bush, 253 N.J. Super. 607, 615 (App. Div. 1992)), certif. denied, 142 N.J. 452 (1995).]
See also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005); Kenneth S. Broun, McCormick on Evidence Ch. 24 § 249 at 134-35 (Sixth ed. 2006); 6 Wigmore on Evidence § 1789 at 314, 319 (Chadbourn rev. ed. 1976).
Viewing these precedents as applicable to the present matter, we reject defendant's position.
Defendant also claims contends that his sentence was improper and excessive. He first argues that the trial judge improperly imposed concurrent sentences for violations of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1. He claims that the school zone convictions should have been merged into the public property convictions, with the period of parole ineligibility mandated by N.J.S.A. 2C:35-7 surviving the merger. The State concedes this point. The State also concedes that the judgment of conviction incorrectly states that defendant was sentenced to ten years in custody with a five-year period of parole ineligibility on count six, whereas he was in fact sentenced to five years in custody with a three-year period of parole ineligibility. Thus, the matter must be remanded for correction of the judgment of conviction.
We reject defendant's argument that his extended term sentence of twelve years with six years of parole ineligibility was excessive. That sentence was imposed as a matter of discretion upon defendant as a persistent offender by the trial judge pursuant to N.J.S.A. 2C:44-3a after a careful evaluation of the factors set forth in State v. Dunbar, 108 N.J. 80, 87-88 (1987), as modified by State v. Pierce, 188 N.J. 155, 165-70 (2006). We find no misuse of discretion in that regard. Id. at 166, State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 364-66 (1984).
In summation, defense counsel argued that Detective Bennett did not witness defendant rummaging in the stash but was instead told of the stash's location by a confidential informant. Counsel further argued that the stash, in fact, belonged to Jones, who lived in close proximity to the stash's location, had four folds of heroin in his pocket that matched those in the stash, and had $101 on his person, whereas defendant, when searched, had no drugs on him and only $24*fn1 in his pocket. In response to counsel's arguments, the prosecutor recounted the facts demonstrating defendant's criminal activity and stated with respect to the fact that Jones was found with more money than defendant possessed:
Why he has that much money, who knows, maybe he just cashed his Social Security check. I don't know. He had money in his pocket.
It's not a crime to have money . . . .
Defendant claims this statement so tainted the proceedings that the judgments against him must be reversed on the ground of plain error. We do not accept defendant's position, regarding the statement to have fairly addressed the arguments of defense counsel that the money constituted proceeds of drug sales. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001). If the statement is viewed as inviting improper speculation by the jury, we find it to have been incidental in nature, and not of such content or significance as to have deprived defendant of a fair trial. State v. C.H., 264 N.J. Super. 112, 136 (App. Div.) (citing State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Kelly, 97 N.J. 178, 218 (1984)), certif. denied, 134 N.J. 479 (1993).
Defendant's convictions are affirmed. The matter is remanded for correction of the judgment of conviction.