October 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON LAMBERT, A/K/A AARON I. LAMBERT, AARON JORDON, AARON JORDAN, AARON I. JORDANLAMBERT, AND AARON JORSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-07-2144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Simonelli and Koblitz.
Following a jury trial, defendant Aaron Lambert was convicted of second-degree conspiracy to possess with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 (count one); third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession with intent to distribute a CDS in a quantity less than one-half ounce, N.J.S.A. 2C:35-5b(3) (count three); third-degree possession with intent to distribute a CDS within a school zone, N.J.S.A. 2C:35-7 (count four); second-degree possession with intent to distribute a CDS while in, on, or within 500 feet of the real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count five); fourth-degree possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36-3 (count six); second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count seven); third-degree unlawful possession of a weapon (loaded rifle), N.J.S.A. 2C:39-5c(2) (count eight); fourth-degree unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3d (count nine); and second-degree possession of a firearm while in the course of committing, attempting to commit or conspiring to commit a violation of N.J.S.A. 2C:35-5 and/or N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:39-4.1a (count eleven).*fn1
The trial judge imposed an aggregate eleven-year term of imprisonment with a six-year period of parole ineligibility, and imposed the appropriate fines and penalties.
On appeal, defendant raises the following contentions:
THE DEFENDANT'S RIGHT TO A FAIR TRIAL, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[.] 1 OF THE NEW JERSEY CONSTITUTION, AND THE PUBLIC'S INTEREST IN AN ACCURATE VERDICT WERE INFRINGED BY THE FAILURE TO PRESENT ADMISSIBLE EXCULPATORY EVIDENCE TO THE JURY. (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 OMISSION OF AN INSTRUCTION ON THE LAW OF IDENTIFICATION NOTWITHSTANDING A MISIDENTIFICATION DEFENSE. (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 OMISSION OF AN INSTRUCTION ON THE LAW OF ALIBI NOTWITHSTANDING THE ADMISSION OF ALIBI TESTIMONY AT TRIAL. (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 ERRONEOUS, INCOMPLETE, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ACCOMPLICE LIABILITY. (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 ERRONEOUS INSTRUCTIONS ON THE LAW OF CONSTRUCTIVE POSSESSION. (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 ERRONEOUS AND INCOMPLETE INSTRUCTIONS ON THE LAW OF INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC HOUSING PROJECT. (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, AND HIS RIGHT TO BE FREE FROM SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE CRIMINAL ACTS. (Not Raised Below) POINT VIII
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 FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE. (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 ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not Raised Below)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE WEAPON CHARGES SHOULD HAVE BEEN GRANTED.
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 FAILURE TO GRANT THE DEFENDANT'S MOTION FOR A MISTRIAL. POINT XII
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 ACCUMULATION OF ERRORS. (Not Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE DEFENDANT'S SENTENCE SHOULD BE VACATED AND REMANDED IN LIGHT OF THE AMENDMENT TO THE SCHOOL ZONE LAW [N.J.S.A. 2:35-7].
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATI[NG] FACTORS.
We reject these contentions, and affirm.
We derive the following facts from the record. On April 3, 2008 at approximately 12:30 p.m., Detective Noriborto Moita (Det. Moita) of the Essex County Sheriff's Office, Bureau of Narcotics, was conducting surveillance at a townhouse complex located at the corner of Broad and Oriental Streets in Newark. From his parked vehicle, Det. Moita saw three males, one of whom appeared to be a juvenile, standing behind a townhouse. As a white female approached the males, two of them retreated behind a townhouse, while the juvenile spoke to the woman. The juvenile, later identified as defendant's teenaged brother, E.J., walked into the townhouse courtyard and out of Det. Moita's view. Det. Moita exited his vehicle, proceeded toward the area where the three males had been standing, and saw E.J. return to one of the males, later identified as co-defendant Kevin Graham. Graham then climbed over a wall and entered the first-floor window of one of the townhouses. Det. Moita could see into the window and saw Graham walk to the opposite side of the room, bend down, stand back up, and exit through the window. Graham then climbed back over the wall, walked into the courtyard, approached E.J., and handed E.J. something. E.J. walked back to the woman and gave her the item Graham had handed him, and the woman gave E.J. money.
After the woman left the area, Det. Moita saw a fourth man approach defendant and hand him money. Defendant walked over to Graham, who then climbed over the wall, entered the first-floor window of the same townhouse, retrieved some item, returned to the courtyard, and gave defendant the item. Defendant gave the item to the man and the man gave defendant money, which defendant gave to Graham.
Det. Moita radioed nearby police officers, reported what he had witnessed, and gave a description of defendant, Graham and E.J. Defendant, Graham and E.J. then left the courtyard and walked north on Broad Street. Det. Moita began to follow them, and saw the other officers detain them in front of a different townhouse. Det. Moita and another officer then went to the townhouse where Graham had climbed through the window, entered into it, and discovered a plastic bag, which contained glass vials; some vials were empty while others contained "a rocky substance." They also discovered a semiautomatic weapon and a loaded rifle. The police arrested defendant, Graham, and E.J. Defendant and Graham were tried jointly, and convicted of the same crimes.
Defendant did not raise before the trial judge the arguments he raises in Points I to IX of his merits brief.
Thus, we review those arguments under the plain error standard.
R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005); State v. Macon, 57 N.J. 325, 337 (1971). We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result[.]" Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); Macon, supra, 57 N.J. at 337. To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. We conclude that none of the errors asserted in the aforementioned points rise to the level of plain error.
During E.J.'s plea hearing in juvenile court, he allegedly exonerated
defendant and inculpated Graham. The trial judge in this case had
ruled the statement was admissible subject to Bruton*fn2
editing; however, defense counsel chose not to introduce the
statement at trial. Defendant contends in Point I that the State's
failure to introduce this exculpatory evidence denied him a fair
The State is required to disclose exculpatory information to the defense in discovery. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). E.J.'s statement was apparently disclosed pre-trial because defendant knew about it. Thus, the State met its obligation to disclose exculpatory evidence. Defendant cites no authority that required the State to introduce the statement into evidence.
Defendant also contends in Point I that defense counsel was ineffective because he failed to introduce the statement at trial. Ineffective assistance of counsel claims, however, should be addressed in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-61 (1992). We express no view on the merits of such a petition.
Defendant contends in Point II that because the police had originally arrested a fourth suspect, the judge erred by failing to give a misidentification instruction. The court must give an identification charge when identification is a key issue in a case, such as when identification is "the major, if not the sole, thrust of the defense." State v. Green, 86 N.J. 281, 291-92 (1981). However, there is no plain error in the court's failure to give an identification instruction when identification is "an important aspect of the case, [but] not an essential, contested issue." State v. Copling, 326 N.J. Super. 417, 433-34 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).
Here, misidentification was not the thrust of defendant's defense; rather, defendant claimed he was not involved in the crimes and was merely in the wrong place at the wrong time. In addition, Det. Moita saw defendant, Graham and E.J. engage in the drug transactions, the police arrested the three males within minutes of the detective's observations, and defendant's sister's testimony placed defendant near the townhouse courtyard at the time the detective witnessed the drug transactions. Accordingly, there was no need for an identification instruction because identification was not a key or contested issue in this case.
Defendant contends in Point III that he was entitled to an alibi instruction based on his sister's testimony that she had sent him to the store at 1:00 p.m. on the day of the incident. Defendant did not provide an alibi notice. R. 3:12-2. In addition, defendant did not assert an alibi defense at trial; he merely offered his sister's testimony to establish that he was innocently passing through the courtyard when the drug transactions occurred. This testimony apparently formed the basis for defendant's request for a "mere presence" instruction, which the trial judge gave to the jury. We are satisfied there was no basis for an alibi instruction.
Citing State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), defendant contends in Point IV that the judge gave an inadequate accomplice liability instruction because the judge failed to instruct that each defendant could have different levels of criminal culpability based on his respective participation and state of mind. Although defendant and Graham were tried jointly, no lesser-included offenses were charged in the indictment, and both defendants were charged with the same degree offenses. Consequently, the judge was not required to impart the same detailed instruction utilized in Bielkiewicz. See State v. Ingram, 196 N.J. 23, 39 (2008) (stating that the logic of Bielkiewicz was "inapplicable" because the charges submitted to the jury "would not have been susceptible to a lesser-included offense instruction"). We are satisfied that the judge appropriately instructed the jury that to find both defendants guilty of the crimes charged, it must find that both defendants acted with the purpose to commit the crimes.
Defendant contends in Point V that the judge gave an erroneous constructive possession instruction. The judge's constructive possession instruction mirrored Model Jury Charge (Criminal), "Possession" (April 2005). The judge informed the jury that a defendant must "knowingly [have] both the power and the intention at a given time to exercise control over" contraband in order to constructively possess it. This definition of constructive possession is also consistent with case law on the subject. See Morrison, supra, 188 N.J. at 14. A jury instruction that tracks the Model Jury Charge and is consistent with New Jersey precedent is not plainly erroneous. See State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Accordingly, there was no error, let alone plain error, in the constructive possession instruction.
Defendant contends in Point VI that the judge gave an erroneous and incomplete instruction on the law of intent to distribute a CDS within 500 feet of a public housing project because he failed to instruct the jurors on the statutory definition of a "public housing project." The judge's instruction mirrored Model Jury Charge (Criminal), "Distributing a Controlled Substance: Proximity to Public Housing Facilities, Parks or Buildings" (March 2001), which includes the statutory definition for a "public housing facility." The judge was not required to explain the requirements of the local housing law, only that the State was required to prove that the area in question met this definition. See State v. Trotman, 366 N.J. Super. 226, 237 (App. Div. 2004) (concluding that "the Legislature did not intend for the prosecution to prove as an element of the offense that the housing authority possessed valid title to the public housing units" but that "the statute seeks to ensure that the property in question is being used as a public housing facility.")
In addition, the State introduced a map, which depicted areas in Newark designated as "public housing property." Thus, the jury had sufficient evidence from which to conclude that the drug offense occurred within 500 feet of a public housing facility. Accordingly, there was no error in the instruction on the law of intent to distribute a CDS within 500 feet of a public housing project.
Defendant contends in Point VII that the mere presence instruction violated his constitutional rights by shifting the burden of proof to him to show that he disapproved or opposed the criminal acts. This contention lacks merit.
Defendant requested, and the judge gave, a mere presence instruction. The instruction mirrored Model Jury Charge (Criminal), "Liability for Another's Conduct" (May 1995). Reading this instruction in the context of the charge as a whole discloses that the judge appropriately instructed the jury that the State bore the burden of proof on each element of the crimes with which defendant was charged.
In addition, the judge consistently informed the jury that the State, not defendant, bore the burden of proof beyond a reasonable doubt, the burden never shifted to defendant, and defendant had no obligation or duty to prove his innocence or offer any proof relating to his innocence. We will presume "'that the jury followed the instructions delivered by the trial court.'" State v. Martini, 187 N.J. 469, 477 (2006) (quoting State v. Marshall, 173 N.J. 343, 355 (2002)), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007).
Defendant contends in Point VIII that the judge erroneously failed to mold the law to the facts of the case. Defendant argues that the charge was confusing because it suggested that if he participated in some crimes Graham committed, he participated in all crimes, and the judge should have informed the jury that it was Graham, rather than defendant, who entered the townhouse containing the drugs and weapons, and that Graham, rather than defendant, was the "ultimate recipient of the money." We disagree.
Although model jury instructions are frequently "helpful" to trial courts in explaining the law to the jury, "it is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime." State v. Concepcion, 111 N.J. 373, 379 (1988). Rather, "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Ibid. "[T]o serve its purpose, a charge, especially a complex one, should be tethered to the facts that the jury has heard." State v. Savage, 172 N.J. 374, 393-94 (2002). This rule is mainly applicable in situations "in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). The determination of when and how to comment on the facts and evidence during the jury instructions is left "to the sound discretion of the trial court to decide on a case-by-case basis[.]" Id. at 45; see also State v. Pigueiras, 344 N.J.
Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002).
The judge properly instructed the jury that "[t]here are ten offenses that you will be considering in this indictment. They are separate offenses by separate counts in the indictment[,]" and that "you will have to decide each case individually. Whether the verdicts as to each defendant are the same depends upon the evidence and your deliberation as judges of the facts." The judge also properly instructed that "there are two defendants and you must consider each of their cases separately by the evidence introduced to them." There was no abuse of discretion in the jury charges.
Defendant contends in Point IX that the judge should have suppressed Det. Moita's out-of-court identification because it was impermissibly suggestive. Defendant argues that because Det. Moita did not arrest him at the time of the drug transactions or provide a detailed description of the suspects to the other officers, the officers had to follow proper out-of-court identification procedures to ensure the reliability of the identification. We disagree.
In determining whether an out-of-court identification is admissible, the court must first decide whether the method of obtaining the identification was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006); State v. Madison, 109 N.J. 223, 232 (1988).*fn3 "What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). If the court determines that the identification procedure was impermissibly suggestive, it "must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Romero, 191 N.J. 59, 76 (2007)). In determining whether an identification was reliable, the court should consider:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Id. at 204 (citing Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).]
If the witness's identification is determined to be reliable, it may be admitted into evidence. Ibid.
Here, Det. Moita's identification of defendant was not impermissibly suggestive, and even if it was, it was reliable and therefore appropriately admitted into evidence. Det. Moita witnessed the drug transactions and testified that if he had attempted to arrest the three suspects at the scene of the crimes, "they would have ran, they would have got away" because of the different entrances and exits surrounding the townhouse courtyard. Instead, he radioed other police officers in the area for backup and described the three suspects to the officers. He witnessed the suspects leave the courtyard and walk north on Broad Street, followed them, saw the officers detain them, and positively identified them as the three individuals he saw engage in the drug transactions in the courtyard. There was no evidence that Det. Moita's identification of the suspects after they had been arrested was the product of another officer's suggestion. Cf. Herrera, supra, 187 N.J. at 506 (concluding that an identification was impermissibly suggestive when the police commented to a victim, "we found your car, we located your car with somebody in it, we want you to come with us to identify the person[,]" because this comment "may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit").
Even assuming the identification procedure was suggestive, it was reliable. Considering the Adams factors, Det. Moita was in the courtyard less than one-hundred-fifty feet away from the suspects during most of the drug transactions. Adams, supra, 194 N.J. at 204. Det. Moita was clearly paying attention to what the individuals were doing in the courtyard, as that was why he was there conducting surveillance that day. The identification occurred minutes after he radioed a description of the suspects to his fellow officers, supporting its reliability. Id. at 205-06 (noting that "the times between the initial encounters and the later photo identifications were relatively short" when the identifications were made within two days of the incident, and finding the identifications to be reliable and therefore admissible). Accordingly, Det. Moita's out-of-court identification was proper.
The police did not dust the weapons taken from the townhouse for fingerprints. Defendant contends in Point X that the judge erred in denying his motion for judgment of acquittal on the weapons charges because the State failed to present any forensic evidence that he had contact with the weapons or was aware of their presence in the townhouse.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
"Any person who knowingly has in his possession any handgun without first having obtained a permit to carry the same . . . is guilty of a crime . . . of the third degree." N.J.S.A. 2C:39-5b. An individual who "knowingly has in his possession any loaded rifle or shotgun is guilty of a crime of the third degree." N.J.S.A. 2C:39-5c(2). N.J.S.A. 2C:39-3d makes it a fourth degree offense to knowingly possess a defaced firearm. "Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation" of N.J.S.A. 2C:35-5 and/or N.J.S.A. 2C:35-7.1 is guilty of a second-degree offense. N.J.S.A. 2C:39-4.1a. "[A] person has constructive possession of 'an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Morrison, 188 N.J. 2, 14 (2006) (quoting Spivey, supra,, 179 N.J. at 237).
Defendant cites to State v. Baker, 228 N.J. Super. 135, 141 (App. Div. 1988), for the proposition that "[p]resence alone where contraband is found is insufficient to establish possession." While this statement is true, there was more evidence in this case of defendant's constructive possession of the weapons than in Baker. In Baker, the police received a tip to stop a specific vehicle in order to find drugs inside; after stopping the vehicle, the officers uncovered a bag containing forty-five packets of heroin inside a hidden panel in the car located immediately in front of one of the defendants. Id. at 138. The owner of the vehicle, who died prior to trial, had supplied the tip; consequently, without the owner's testimony linking the defendants to the drugs in the vehicle, the State had presented insufficient evidence to convict defendants of possession. Id. at 141. By contrast, Det. Moita testified that he saw a man approach Graham, Graham then entered the same townhouse's first-floor window and retrieved something, Graham returned to the courtyard and gave defendant the item he had retrieved, and defendant gave the item to the man in exchange for money. The police ultimately found plastic bags, glass vials, cocaine, and firearms in the townhouse Graham had entered. Accordingly, unlike in Baker, there was evidence in this case linking defendant to both the drugs and the weapons.
Further, there was evidence, although not direct evidence, by which the jury could reasonably infer that defendant participated in the entire drug distribution scheme, weapons and all. Constructive possession requires that a defendant be aware of the presence of the property and be able to exercise intentional control or dominion over it. See Morrison, supra, 188 N.J. at 14. Despite the absence of direct evidence showing defendant's actual awareness of the presence of the firearms inside the townhouse, granting the State all favorable inferences derived from the evidence, the jury could have reasonably inferred such knowledge from defendant's connection with the money related to the drug transaction. "[A] jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Brown, 80 N.J. 587, 592 (1979). Accordingly, the judge properly denied the motion to suppress.
Defendant contends in Point XI that the judge erred by not granting a mistrial based on the State's expert's testimony. Responding to hypothetical questions based on a similar set of factual circumstances as this case, the State's narcotics expert concluded, "I would be leaning towards that what I had just witnessed at that time would be a three-way, hand-to-hand illegal narcotics transaction." Defense counsel objected to expert's use of the term "hand-to-hand illegal narcotics transaction" because the State had not charged defendant or Graham with drug distribution, and the expert did not classify the transaction as a "narcotics transaction" in his expert's report. The judge sustained the objection because the expert had not mentioned "narcotics transaction" in his report.
Defense counsel moved for a mistrial. The judge denied the motion, concluding that a cautionary instruction would suffice. The judge then instructed the jury to disregard the testimony. In his final instructions, the judge instructed the jury that "[a]ny testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations. It must be disregarded by you. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations."
"A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has an appropriate alternative course of action[,]" it should deny a request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J. at 436-37).
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it presents an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). Similarly, "when weighing the effectiveness of curative instructions, [we] should give equal deference to the determination of the trial court." State v. Winter, 96 N.J. 640, 647 (1984). "The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Ibid.
We discern no abuse of discretion here. The judge's cautionary instructions adequately cured any potential prejudice defendant may have suffered by the expert's testimony. Defendant does not explain how the cautionary instructions were inadequate or how the expert's response to one hypothetical question resulted in a manifest injustice warranting a new trial. Accordingly, the judge properly denied defendant's motion for a mistrial.
Defendant contends in Point XIII that his sentence is excessive. He first argues that his sentence should be vacated and the matter remanded for re-sentencing pursuant to N.J.S.A. 2C:35-7.
Effective January 12, 2010,*fn4 N.J.S.A. 2C:35-7b was amended to include the following provision:
(1) Notwithstanding the provisions of N.J.S.A. 2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subection b. of N.J.S.A. 2C:43-2. . . .
(2) The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:
(a) the offense took place while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or while on any school bus; or
(b) the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.
This amendment also created a new statutory provision, codified at N.J.S.A. 2C:35-7a, which specifies:
Notwithstanding any court rule limiting the time period within which a motion to reduce or change a sentence may be filed, any person who, on the effective date of this act, is serving a mandatory minimum sentence as provided by . . . [N.J.S.A.] 2C:35-7 and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court. If the court finds that the sentence under review does not serve the interests of justice, the judge may re-sentence the defendant pursuant to subsection b. of [N.J.S.A.] 2C:35-7. In determining whether the sentence under review serves the interests of justice, the court shall consider all relevant circumstances, including whether the defendant pleaded guilty pursuant to a negotiated agreement, and whether the prosecution has agreed to dismiss one or more charges which, upon conviction, would have subjected the defendant to the presumption of imprisonment under subsection d. of [N.J.S.A.] 2C:44-1.
The determination by the court shall not be subject to appeal. [N.J.S.A. 2C:35-7a.]
Defendant argues that because he has been sentenced to imprisonment for the school zone drug offense listed in N.J.S.A. 2C:35-7a, and is currently serving that sentence, the amended provision permits a review of his sentence. However, while the statutory language in N.J.S.A. 2C:35-7a indicates that defendant may move to have his sentence reviewed, his convictions for possession of firearms preclude the court from re-sentencing him to probation or to a reduced term of parole ineligibility. N.J.S.A. 2C:35-7b(2)(b) specifically states that "[t]he court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that . . . the defendant in the course of committing the offense . . . was in possession of a firearm." Accordingly, the amendment to the statute does not warrant vacating defendant's sentence and remanding for re-sentencing.
Defendant also argues that the judge improperly found and applied aggravating factors three, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3), and nine, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9), and failed to find and apply mitigating factors two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1b(2), and eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[,]" N.J.S.A. 2C:44-1b(11).
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record.
Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] 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, 363-64 (1984).
The record supports aggravating factors three and nine. As the judge found that, by the age of twenty, defendant had already received two probationary sentences as a juvenile, and had been arrested four times as a juvenile and twice as an adult. In addition, defendant was convicted by a jury of multiple crimes involving drugs and firearms.
The record does not support mitigating factors two and eleven. Even if "[i]ncarceration will impose an excessive hardship to a youthful offender," defendant was convicted of several second-, third-, and fourth-degree crimes, and sentenced to terms of imprisonment within the appropriate range for each crime. See N.J.S.A. 2C:43-6a (setting the sentencing range for second-degree crimes at five to ten years; for third-degree crimes at three to five years; and for fourth-degree crimes at no more than eighteen months). The judge applied the correct legal principles in sentencing defendant, and the sentence does not shock our judicial conscience.