June 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LAMAR F. YOUNG a/k/a HAUSE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-05-0108.
Amira R. Scurato, Assistant Deputy Public Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Ms. Scurato, of counsel and on the brief).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
Before Judges Alvarez and St. John.
Tried to a jury, defendant Lamar F. Young was convicted of second-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(2) and 2C:35-5(a)(1). He was sentenced on April 21, 2011, as a second-time drug distributor, N.J.S.A. 2C:43-6(f), to a mandatory extended term of thirteen years, subject to parole ineligibility of six years,  concurrent to a sentence defendant was then serving. We affirm.
The State's proofs established that on two occasions, February 7, 2007, and April 19, 2007, investigators from the State Police and the Glassboro Police Department arranged for controlled drug buys to be made by a cooperating witness, Julius Jones. The weight of crack cocaine sold on the first occasion was 9.48 grams, and on the second occasion, 8.95 grams. After making the two buys, Jones entered the Witness Relocation Program and subsequently refused to testify at defendant's trial.
State Police Detective Michael Flory and Glassboro Police Department Detective Michael Powell both testified as to the first purchase. They were present when Jones made a one-minute phone call to a person Powell identified as defendant. Powell said he had five or six prior "interactions" with defendant, and claimed to recognize his voice. That conversation was recorded and played to the jury. Flory and Powell then searched Jones, finding neither contraband nor money in his vehicle or on his person. They equipped Jones with an on-body transmitter and recorder and gave him $600 with which to purchase a half-ounce of crack cocaine.
Jones drove to the meet location, a barber shop in Glassboro, at approximately 5:00 p.m., followed by the detectives. Shortly after Jones's arrival, defendant arrived in a white Buick. Jones got into defendant's car briefly, returned to his own vehicle, and drove away, with the officers behind him. At the prearranged location, Jones gave the officers a plastic sandwich bag containing three smaller bags later confirmed to be crack cocaine. Jones's vehicle and person were again searched to ensure that the only items in his possession were the drugs.
On the second occasion, Jones was given $600 to purchase half an ounce of crack cocaine and called a person, whom Powell identified as defendant, while in the officer's presence. That tape was also played to the jury. On this occasion, Jones and defendant agreed to meet at defendant's home. Followed by detectives, Jones pulled into defendant's driveway. The officers witnessed Jones and defendant walk towards some dog pens located behind the house, where the two men briefly remained out of sight. When Jones drove away, he was again followed by the officers to a predetermined location. He gave the officers a clear plastic bag, containing three smaller bags, which held a substance later determined to be crack cocaine. He and his car were searched and nothing was found.
On appeal, defendant raises the following points for our consideration:
THE CUMULATIVE IMPACT OF HEARSAY AND OTHERWISE INADMISSIBLE TESTIMONY AND THE INABILITY TO CROSS-EXAMINE THE MAIN WITNESS DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST., ART. I, PARS. 1, 9, AND 10. (Partially Raised Below).
THE TRIAL COURT ERRED IN FAILING TO PROPERLY CHARGE THE JURY ON AGGREGATION OF THE QUANTITY OF DRUGS. (Not Raised Below).
THE DEFENDANT'S SENTENCE OF THIRTEEN YEARS WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE AND MUST THEREFORE BE REDUCED.
THE JUDGMENT OF CONVICTION MUST BE CORRECTED TO PROVIDE THE PROPER PERIOD OF PAROLE INELIGIBILIY.
In his first point, defendant contends that in some unspecified fashion hearsay evidence was elicited regarding Jones's statements, in violation of the principles enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding that admitting a testimonial statement without providing a defendant the opportunity to cross-examine violates the Confrontation Clause). The assertion is not supported by any citations to the record. Clearly Jones's statements were repeated with regard to issues collateral to defendant's conduct, for example, such as that he advised law enforcement that he was not coming back to testify at the trial. Although the taped conversations were played to the jury, the officers were present when Jones made the two calls, and the State's purpose in introducing the recordings was not to prove the truth of the matter asserted therein — rather, it was simply to explain that meetings were arranged with defendant. Even if hearsay, the admission of the tapes did not implicate Crawford because the contents of the calls added so little to the State's proofs about the sales. No statements were admitted that we could locate, however, with regard to the actual transactions.
The State's proofs consisted entirely of circumstantial evidence. The jury heard the officers describe searching Jones and his vehicle, giving him predetermined amounts of cash, observing Jones without interruption from the time he was given buy money to his return after a transaction, and the subsequent search of Jones's vehicle and person. Crawford is not implicated in this case.
Defendant also contends that the testimony violated the principles found in State v. Bankston, 63 N.J. 263 (1973). Bankston limits an officer's explanations for initiating an investigation to neutral language which does not imply that the officer has inculpatory information regarding a defendant which is not being shared with the jury. Id. at 268. Defendant points to the officers' references to him as a target as violating Bankston because they at least suggested he was a known drug dealer. When defense counsel objected to the use of the term "target, " however, the grounds for his objection were not the officers' statements per se, but the fact that it was the cooperating witness who chose defendant as the target. At sidebar, outside the hearing of the jury, the prosecutor confirmed that Powell, not Jones, selected defendant, at which point defense counsel withdrew his objection. The prosecutor repeated his question as to who chose defendant as a target; Powell responded that he did. No objection followed.
We do not view the use of the term "target" here to be capable of producing an unjust result. See R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Although at defense counsel's behest the prosecutor developed that it was the testifying officer and no one else who selected defendant as a target, some explanation had to be given to the jury for the reason Jones would have called defendant in the first place. Obviously, the jury could have concluded that the officers knew something regarding defendant's activities that made him a suspect. Because this reference was fleeting and minimal, however, it does not violate the Bankston principle that officers cannot testify about details "some other person told him concerning a crime by the accused." Bankston, supra, 63 N.J. at 268. Powell's statement that he chose to investigate defendant meant that he had some reason to do so, but did not necessarily mean that a non-testifying witness had given him information regarding defendant's prior activities.
Defendant makes the further argument that the officers' testimony made them expert witnesses whose testimony was improperly received because they were not qualified. We find that argument to be lacking any record support. The officers testified only as fact witnesses, about their actions and observations. They were clearly fact witnesses, not expert witnesses.
In addition, defendant contends that the information regarding Jones's enrollment in a witness protection program, and Flory's statement that he was not only a member of the "Drug Trafficking South Unit, " but also that he was assigned to the "Street Gangs South Unit, " were so prejudicial as to constitute plain error which warrants reversal. Plain error is that which is of "sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would not otherwise have reached." State v. McGuire, 419 N.J.Super. 88, 142-43 (App. Div.), certif. denied, 208 N.J. 335 (2011). Although these references were unnecessary, the statements were not so prejudicial as to rise to the level of plain error. Again, they were fleeting and minimal.
Because we do not agree that any errors were committed, we therefore do not agree that the cumulative effect of the officers' testimony denied defendant his right to due process and a fair trial. Since we do not agree that there were errors, no cumulative effect casts doubt on the verdict. See State v. Jenewicz, 193 N.J. 440, 473 (2008).
In his second point, defendant argues that the court erred by failing to give the jury the model jury charge regarding aggregation pursuant to N.J.S.A. 2C:35-5(c). See Model Jury Charge (Criminal), "Supplemental Charge to Offenses Set Forth in N.J.S.A. 2C:35-5 (To be Utilized in Cases in Which the Quantity of the CDS is an Element of the Offense)" (1992). Defendant bases this argument on the claim that in order for quantities to be aggregated, there must be one continuous scheme or course of conduct, as opposed to the two separate sales separated by some weeks as in this case. We note that the Supreme Court has recently reiterated the principle that "[i]f the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). In this case, no objection was made to the jury charge.
In any event, the court did advise the jury that they must first individually assess the State's case as to each of the two separate transactions, and only then aggregate the quantity of drugs. The verdict sheet tracked the instruction. In this case, no prejudice inured to defendant because the jury was told that its task was, regardless of the fact that defendant was charged in a single-count indictment, to independently determine whether he engaged in the two separate acts that together resulted in total sales exceeding half an ounce.
Furthermore, the suggested model jury charge would not have applied. This charge is intended for situations in which quantities of drugs in the possession of different persons are to be aggregated. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:35-5 (2012) (citing State v. Curry, 245 N.J.Super. 278 (Law Div. 1989)). Therefore, the court committed no error by omitting the charge.
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 608 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.
In this case, defendant had a successful diversion as a juvenile, and a significant history as an adult: a conditional discharge, nine municipal court convictions, and four prior indictable drug convictions, including two prior drug distributions. Defendant had previously served a state prison term for the drug distribution offenses. The trial judge found no mitigating factors, and his conclusion that aggravating factors three, six, and nine applied was supported by "competent, reasonably credible evidence." See State v. Roth, 95 N.J. 334, 363 (1984); N.J.S.A. 2C:44-1(a)(3), (6), and (9). Therefore, defendant's thirteen-year state prison term, in the low end of the range, does not shock the judicial conscience.
Affirmed, except the JOC must be corrected to reflect that the judge imposed only six years of parole ineligibility.