December 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID ELLIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2012
Before Judges Fuentes, Graves and J. N. Harris.
In a nine-count indictment, defendant David Ellis was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); second-degree possession heroin with intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 (count three); second-degree possession of a handgun during the commission of a drug offense, N.J.S.A. 2C:39-4.1, (count four); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count five); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count six); third-degree attempted hindering of apprehension, N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:29-3(b)(1) (count seven); and second-degree possession of a handgun by a convicted person, N.J.S.A. 3C:39-7(b) (count eight). Defendant was not named in count nine of the indictment. Defendant was also charged with possession of drug paraphernalia, a disorderly persons offense, in violation of N.J.S.A. 2C:36-2. Counts three and eight were dismissed at the request of the State.
Defendant's trial began on December 1, 2006, and the jury rendered a verdict on December 13, 2006. Defendant was convicted of possession of heroin, count one; possession of heroin with intent to distribute, count two; and attempt to hinder apprehension, count seven. The jury found defendant not guilty on counts four, five, and six.
Prior to sentencing, the court granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f).
On December 18, 2009, the court merged count one into count two and sentenced defendant to a fifteen-year extended term with seven-and-one-half years of parole ineligibility. The court imposed a concurrent five-year term on count seven and a ten-day concurrent term for the disorderly persons offense. Appropriate statutory penalties and assessments were also imposed. We affirm.
Defendant moved to suppress evidence seized by the police pursuant to search warrants. The facts presented at defendant's suppression hearing and trial can be summarized as follows.*fn1 On September 19, 2004, a concerned citizen contacted the Paterson Police Department to report that defendant and two co-defendants, David Spencer and defendant's girlfriend, Alexis Timmons, were storing heroin in a first-floor apartment on Montgomery Street in Paterson, New Jersey, and were using rental vehicles to transport the heroin to street-level dealers throughout Paterson. Based on this information, Detectives William Palomino, Virginio Formentin, and Marvine Sykes conducted a surveillance of the Montgomery Street apartment during the week of September 19, 2004. The detectives were familiar with defendant and Spencer from "prior narcotic investigations."
While conducting the surveillance, the detectives observed a silver 2004 Pontiac SUV pull up and park in front of the apartment. Defendant and Spencer exited the silver SUV and entered the apartment, but they left about two minutes later. The men then drove in the SUV to an abandoned lot on Twelfth Avenue in Paterson where Spencer met an unidentified African-American man and handed him a plastic bag. The detectives observed the man place "the plastic bag into the fender of a pick-up truck with no license plate, as [defendant and Spencer] drove out of the area." Detectives Sykes and Formentin followed the SUV while Detective Palomino continued to observe the lot. According to Detective Palomino, he saw the African-American man "make what appeared to be numerous hand-to-hand drug transactions."
During the following week, the detectives observed defendant and Spencer arriving at the apartment in the same silver SUV, which was registered to Elrac, Inc., commonly known as Enterprise Rent-A-Car (Enterprise). Spencer then left the apartment and proceeded to the lot at Twelfth Avenue. At the lot, "Spencer began to look around while [an unidentified African-American man] entered the SUV and removed a medium sized plastic bag which he took and hid in the lot." Detective Palomino then observed a Hispanic female, known to him from prior narcotics investigations, engage in a suspected hand-to-hand drug transaction.
The detectives subsequently contacted a confidential informant who made a controlled buy from the unidentified African-American man at the Twelfth Avenue lot, and a field test conducted on the substance purchased by the informant tested positive for heroin. Based on their investigation, the detectives applied for four search warrants that were authorized by a municipal court judge on September 29, 2004, at 7:20 p.m. The search warrants were for defendant's person, Spencer's person, the silver SUV, and the first-floor apartment, including "any person found therein reasonably believed to be connected with the criminal activity."
That same evening, at about 8:30 p.m., the detectives observed defendant and Spencer arrive at the apartment in the SUV. When the detectives approached to execute the warrants, defendant and Spencer ran upstairs and entered an apartment on the second floor. As the detectives ran up the stairs, Detective Palomino observed Spencer drop a small bag on the steps that contained "numerous glassines" of suspected heroin. Meanwhile, the silver SUV left the apartment and was stopped by other detectives. The driver was identified as Gilbert Robinson.
The detectives forcibly entered the second-floor apartment and observed defendant, Spencer, and Timmons. Defendant was "in the bathroom attempting to flush glassines of suspected heroin." At the same time another detective stationed outside the apartment observed that "bricks of suspected heroin and [United States] currency were being thrown out of the second floor window." The detectives secured the second-floor apartment and obtained a search warrant for the second-floor apartment at 11:30 p.m.
In total, the detectives recovered 1738 glassines of heroin and more than $6000. The detectives also found a "Glock handgun, nine millimeter with a laser sight . . . with a [thirty-one] bullet capacity," and ammunition for the weapon. In addition, the detectives recovered a shoe box containing several glassine envelopes, a ceramic plate with white residue, a digital scale, ziplock bags, a stamp, an ink pad, three straightedge razors, and rubber bands. Defendant, Spencer, Robinson, and Timmons were arrested.
At the suppression hearing, Robinson testified that his girlfriend, Ashley Moore, rented the silver SUV from Enterprise on September 28, 2004, for his use. He further testified that she previously rented two other vehicles for him, a purple Mazda from September 16 to September 23, and a beige minivan from September 23 to September 28. According to the records supplied by Enterprise, the silver SUV was rented to several people in the Paterson area before being rented by Moore. The mileage records from Enterprise also confirmed that the SUV did not travel far from the Paterson area during the time of the investigation.
Detective Palomino testified at the suppression hearing that people involved in the distribution of illegal narcotics frequently use rental cars to "throw [the police] off their track," and so "they don't have the risk of losing their own vehicle . . . to forfeiture." Moreover, drug dealers sometimes pay people "out of their pocket to . . . rent these vehicles for them." The trial court rejected defendant's claim "that it would have been impossible" for the detectives to have observed him in the silver SUV prior to September 28, 2004, and, therefore, the affidavits to obtain the search warrants "must be false." Accordingly, the court denied defendant's suppression motion because he failed to demonstrate that the affidavits signed by the detectives "knowingly, intentionally, or recklessly" contained false statements.
At trial, Detective Sykes was qualified as an expert in "the area of narcotics packaging, narcotics trafficking, and the possession of narcotics." He testified that many of the items found in the apartment were used in the processing and packaging of heroin and other drugs. The court also qualified Detective Formentin as an expert "in the area of narcotics distribution, street level narcotics and the generalized terminology and slang words, et cetera that may be part of that activity." Detective Formentin also testified that many of the items in the apartment could be used to process and package controlled dangerous substances.
Defendant testified that at the time of his arrest, he was living with Timmons in the apartment on Montgomery Street. According to defendant, he and Timmons were in the process of moving out of the apartment on the day they were arrested. Defendant maintained that Robinson and Spencer came to the apartment earlier in the day and asked him to "hold on to" $15,000 in a book bag. Defendant further testified he did not know there was heroin in the bag until the detectives followed him and Spencer up the stairs. At that point, he discovered there were drugs in the bag and he and Spencer attempted to get rid of the drugs. But defendant admitted on cross-examination that he was a crack dealer who occasionally sold marijuana.
On appeal, defendant presents the following arguments:
THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT MATERIAL MISSTATEMENTS WERE CONTAINED IN THE AFFIDAVITS PREPARED BY THE DETECTIVES THAT WERE EITHER UNTRUE OR MADE WITH RECKLESS DISREGARD FOR THE TRUTH WITHOUT WHICH THERE WAS INSUFFICIENT PROBABLE CAUSE TO SUPPORT THE ISSUANCE OF THE SEARCH WARRANTS.
DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BECAUSE SEVERAL STATE WITNESSES TESTIFIED ABOUT OTHER CRIMES EVIDENCE THAT HAD BEEN EXCLUDED FROM TRIAL PRIOR TO THE START OF TESTIMONY BY THE LOWER COURT AND THERE WAS NO LIMITING INSTRUCTION AT THE TIME OF THE OFFENDING TESTIMONY OR JURY CHARGE TO QUELL THE RESULTING UNDUE PREJUDICE. (Partially raised below).
THE PROSECUTOR'S SUMMATION IMPROPERLY REFERRED TO EVIDENCE THAT THE COURT PREVIOUSLY DETERMINED WAS NOT ADMISSIBLE, RESULTING IN UNDUE PREJUDICE TO THE DEFENDANT AND REQUIRING REVERSAL AND A NEW TRIAL.
PERMITTING DETECTIVE SYKES AND OTHER POLICE INVESTIGATORS TO TESTIFY IN THE STATE'S CASE IN THE DUAL CAPACITY OF FACT AND EXPERT WITNESSES WAS IMPROPER AND CREATED HEIGHTENED RISK OF UNDUE PREJUDICE, DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
THE SENTENCE IMPOSED WAS EXCESSIVE.
THE SENTENCE SHOULD BE REDUCED IN THE INTERESTS OF JUSTICE BECAUSE THE CONTINGENT PLEA OFFER FORCED A TRIAL THAT THE DEFENDANT DID NOT WANT AND SUBJECTED HIM TO AN EXTENDED-TERM SENTENCE BECAUSE HIS CO-DEFENDANT WAS UNREASONABLE AND REFUSED TO ACCEPT THE DEAL. (Not raised below).
REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SUPPRESSION HEARING, TRIAL AND SENTENCING.
Preliminarily, defendant argues the search warrants were invalid because "the sworn statements contained in the affidavits prepared by the detectives were either untrue or made with reckless disregard for the truth." We do not agree.
A warrant may be invalidated, and the evidence suppressed, if a defendant "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1987); see also State v. Howery, 80 N.J. 563, 566-68 (1979).
We review the factual findings of the trial court narrowly, "and will not 'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)) (alteration in original). We reverse only when the trial court was "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Additionally, we give deference to those findings of the trial court which are substantially influenced by its "opportunity to hear and see the witnesses and have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161.
In this case, the trial court found that the testimony of Detective Palomino was "entirely credible," and it corroborated the information contained in the search warrant affidavits. In addition, there is sufficient credible evidence to support the court's determination that defendant failed to establish, by a preponderance of the evidence, that the detectives "knowingly, intentionally, or recklessly" made material misstatements in their search warrant affidavits. Accordingly, we affirm the order denying defendant's suppression motion substantially for the reasons stated by Judge Raymond Reddin in his written decision on December 14, 2006.
In point two, defendant contends that "several State witnesses testified about other crimes evidence that had been excluded from trial." Specifically, defendant objects to the testimony by Detectives Palomino and Formentin regarding the interactions with the unidentified African-American man in the abandoned lot on Twelfth Avenue. Again, we do not agree.
The observations made by the detectives prior to obtaining the search warrants were directly related to the crimes that defendant was charged with committing. Therefore, the trial court did not err in admitting the testimony regarding the surveillance of defendant's activities that resulted in the issuance of the search warrants. See State v. Marshall, 148 N.J. 89, 240 (1997) ("We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Moreover, the trial court properly instructed the jury that it was "to draw absolutely no inference whatsoever from the fact that the judge authorized the search."
In his third point, defendant argues the prosecutor improperly referred to the transactions with the unidentified African-American man in the abandoned lot in her summation. We find nothing improper with the prosecutor's remarks. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). That is what happened here and we find no error, much less reversible error.
In his next point, defendant argues the court erred in allowing Detectives Formentin and Sykes to testify as both fact witnesses and expert witnesses.*fn2 We have recognized:
[W]hen a narcotics officer who has given eyewitness testimony . . . is also offered as an expert to express an opinion . . . the dual nature of the testimony can create a special risk that the jury may infer the opinion about the criminal nature of the conduct is based on knowledge of the officer about the defendant beyond the evidence produced at trial. [State v. Jackson, 278 N.J. Super. 69, 78 (App. Div. 1994).]
Here, the trial court mitigated the potential risk by giving a full and proper jury instruction regarding the role of expert testimony. Thus, the court did not abuse its discretion when it qualified the detectives as expert witnesses.
Defendant also challenges his sentence. Defendant claims his sentence should be reduced because the case could have been resolved if the State's plea offer was not contingent upon Spencer's acceptance of the deal. This argument has no merit. See State v. Smith, 306 N.J. Super. 370, 382 (App. Div. 1997) ("Plea agreements contingent upon joint pleas of co-defendants are commonplace and based to some degree upon the prosecutor's evaluation of tactical decisions and proofs at trial.") Moreover, the trial court correctly applied the sentencing guidelines and defendant's sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).