NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-06-1781.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez, St. John, and Leone.
Defendant Anthony Hutcherson appeals from his judgment of conviction for drug offenses. He challenges the denial of his motion for severance, the jury instructions, the prosecutor's summation, and the sentence. We affirm.
The State's evidence can be summarized as follows. On March 13, 2009, Detectives Al Freddy Fletcher and Dennis Daniels were in an unmarked car driven by Sergeant David Robinson, all of the Newark Police Department. They were conducting undercover surveillance near the intersection of Stuyvesant and South Orange Avenues in Newark. The detectives saw a woman approach defendant. After a brief conversation, she gave him currency in exchange for what appeared to be a glassine envelope. Believing that they had witnessed a drug transaction, the detectives followed defendant while Robinson unsuccessfully tried to apprehend the woman.
Defendant entered a nearby apartment building on Stuyvesant Avenue. The detectives followed, stationing themselves on the first and second floors. After several seconds, defendant emerged from an apartment on the first floor, holding ten glassine envelopes marked "DOA, " later found to contain heroin.
Fletcher identified himself and grabbed defendant, who struggled into the apartment. The detectives arrested defendant and recovered the heroin. In the apartment, Fletcher saw thirty zip-lock bags full of cocaine, as well as loose cocaine on a plate, a razor blade, empty plastic bags, and currency. Fletcher also saw an open "Northface" bag containing a loaded and operable .25 caliber handgun and thirty glassine envelopes filled with heroin and similarly marked "DOA." (The bag also contained a loaded .22 caliber handgun, which proved to be inoperable.) The detectives seized the guns, drugs, and the currency in the apartment, which was not defendant's residence. Defendant was subsequently released on bail.
On April 14, 2009, Detective Bennett of the Essex County Sheriff's Office was conducting undercover surveillance near the intersection of Stuyvesant and South Orange Avenues. Bennett saw defendant drive up and exit the vehicle. A woman approached defendant and gave him currency in exchange for an object. Believing this was a drug transaction, Bennett summoned sheriff's officers who detained both defendant and the woman, Michelle Thompson. The officers recovered from Thompson the object she bought from defendant, which proved to be a zip-lock bag containing cocaine. The officers searched defendant and found another zip-lock bag containing cocaine, and $156.
At trial, Thompson appeared as a defense witness. She testified that she was a cocaine addict, and that she bought the cocaine from "a young guy" whom she could not identify. She repeatedly denied having bought it from defendant.
A grand jury indicted defendant for sixteen offenses, which were in three groups. The counts based on defendant's alleged possession of heroin on March 13th (the March possession charges) were count four - possession of heroin, N.J.S.A. 2C:35-10a(1); count five - possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and count six -possession of heroin within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7.
The counts based solely on his alleged constructive possession of items in the apartment on March 13th (the March constructive possession charges) were count one - possession of cocaine, N.J.S.A. 2C:35-10a(1); count two - possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); count three - possession of cocaine within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7; count seven - unlawful possession of a .25 caliber firearm, N.J.S.A. 2C:39-5b; count eight - unlawful possession of a .25 caliber firearm with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a; count nine - unlawful possession of a .22 caliber firearm, N.J.S.A. 2C:39-5b; count ten - unlawful possession of a .22 caliber firearm with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a; and count eleven - possession of a firearm in connection with a drug offense, N.J.S.A. 2C:39-4.1.
The counts arising from his alleged possession and sale of cocaine on April 14th (the April possession charges) were count twelve - possession of cocaine, N.J.S.A. 2C:35-10a(1); count thirteen - possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); count fourteen - possession of cocaine within 1, 000 feet of a school with intent to distribute, N.J.S.A. 2C:35-7; count fifteen - distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); and count sixteen -distribution of cocaine within 1, 000 feet of a school, N.J.S.A. 2C:35-7.
Prior to trial, the State dismissed counts nine and ten, because the .22 caliber firearm was inoperable. At the close of its case, the State dismissed count eight. The jury acquitted defendant of the remaining March constructive possession charges. The jury convicted defendant of the March possession charges and the April possession charges, which were all third-degree offenses.
At sentencing, the trial judge merged, into count six the other March possession convictions, and similarly merged into count sixteen the other April possession convictions. Defendant concededly qualified for mandatory extended-term sentencing based on a prior drug offense. Based on defendant's numerous other convictions, and the aggravating factors, the judge sentenced defendant to a total of eight years in prison with four years' parole ineligibility, as well as fines and penalties.
Defendant appeals raising the following claims:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A SEVERANCE.
ASSUMING THE TRIAL COURT PROPERLY DENIED DEFENSE COUNSEL'S MOTION FOR A SEVERANCE, IT ERRED BY REFUSING TO ISSUE A LIMITING INSTRUCTION TO THE JURY PURSUANT TO N.J.R.E. 404 (b).
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant first challenges the denial of his motion to sever the March charges from the April charges. He argued that joinder was impermissible, and that he would be prejudiced because it would be difficult for the jury to understand which evidence applied to which charges. The State responded that the March and April charges were part of a common scheme or plan and shared the same modus operandi. The motion judge found the March and April charges "are sufficiently of the same nature, they're both narcotics offenses, distributions that occurred" at "the same general location." The judge noted that the April offenses occurred only a month after the March offenses, and only two weeks after defendant was released on bail on the March charges.
Joinder of "similar or related offenses" is generally preferred "[i]n the interests of [judicial] economy and efficiency." State v. Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Krivacska, 341 N.J.Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed.2d 510 (2002). Also, "if separate offenses were required to be tried separately in all circumstances, the multiplicity of ...