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State v. Simon

Superior Court of New Jersey, Appellate Division

July 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
KEIR C. SIMON, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 30, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-064.

L'Abbate, Baklan, Colavita & Contini, L.L.P., attorneys for appellant (Douglas R. Halstrom, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pognay, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Sapp-Peterson and Haas.

PER CURIAM

Following a trial de novo on the record created in the Newark Municipal Court, the Law Division judge found defendant guilty of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. The court re-imposed the sixty-day suspended sentence, fines, court costs and assessment fees originally imposed by the municipal court judge. On appeal, defendant contends that without evidence of the field test performed by the police officers, the specific steps involved with such field tests and the results of the field tests, there was no proper evidence submitted by the prosecution to support a finding by the court that defendant committed the offense. We disagree and affirm.

Two witnesses testified at the municipal trial: Officer Ronald Bernard, a fifteen-year veteran of the police force, and Officer Horatio Lorenzo, a sixteen-year veteran of the police force. Both officers were assigned to the Newark Police Department's Fourth Precinct Narcotics Enforcement Team where they conducted surveillance operations.

On April 22, 2010, they conducted surveillance operations from an unmarked police vehicle in the vicinity of a building where police had received complaints of narcotics activities. During the course of the surveillance, Officer Bernard observed a taxicab pull up and stop in front of the building under surveillance. The driver of the vehicle, later identified as defendant, conversed with an unidentified male who approached the driver. The driver exchanged money with the male, who then ran across the street into an alleyway, retrieved an item, returned to the vehicle and handed the item to the driver, who then drove away.

Believing that a narcotics transaction had just occurred, Officer Bernard radioed his observations to Officer Lorenzo, who conducted a motor vehicle stop of the taxi. As he approached the vehicle, Officer Lorenzo observed the driver extend his hand out of the driver's side window. The plastic bag fell near the officer's feet. Not wanting the driver to realize he had observed the plastic bag being dropped, Officer Lorenzo secured the item by standing over it. Defendant was arrested and the plastic bag retrieved.

Both officers testified that based upon their years of experience and training as narcotics officers, they believed the plastic bag contained marijuana based upon its odor, and one officer also considered the texture of the bag's contents. Officer Lorenzo field tested the substance, which tested positive for marijuana. He did not save the field test results, explaining that it was not common practice to do so. There was also no certified lab report confirming the contents of the plastic bag. Nonetheless, the municipal judge credited the testimony of the officers and found defendant guilty of the charge.

Upon her de novo review of the record and according deference to the municipal judge's credibility assessments, the Law Division judge was satisfied beyond a reasonable doubt that the plastic bag contained marijuana and that the bag was being used to store the marijuana. As such, the judge found defendant guilty of the charge. In reaching her decision, the judge considered the totality of the circumstances, including

an observed hand[-]to[-]hand transaction, the driver being observed throwing the bag out of the car, two separate polic[e] officers with experience in this area confirming the appearance and smell of the substance inside the bag appeared to be marijuana. And a field test that tested positive for marijuana.

The scope of our review of a Law Division judge's decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Like the Law Division, we are not positioned to assess credibility in the same manner as the municipal judge; thus, we "do not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Instead, we defer to the credibility findings of the trial court. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Cerefice , 335 N.J.Super. 374, 383 (App. Div. 2000). We owe no such special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). We have considered defendant's argument in light of this standard of review and find no merit to the argument.

Drug paraphernalia under the Criminal Code is defined as "all equipment, products and materials of any kind which are used or intended for use in . . . packaging . . . a controlled dangerous substance[.]" N.J.S.A. 2C:36-1. It may include items for which there are legitimate uses. State ex rel. Atlantic County Prosecutor v. City of Atlantic City , 379 N.J.Super. 515, 523 (App. Div. 2005) (noting proof problems inherent in narcotics paraphernalia prosecutions "because most drug paraphernalia, unlike other instruments of crime, have both legitimate and illegitimate uses"). Thus, consideration of the totality of the circumstances surrounding the charged offense is critical.

Here, albeit over objection from the defense, Officers Lorenzo and Bernard testified that they believed the plastic bag recovered contained marijuana, based upon the odor of the bag's contents and their years of experience and training as narcotics officers. In the absence of a lab certificate, we find, as the Law Division judge concluded, the bag contained marijuana. However, we need not do so in order to determine whether the proofs established beyond a reasonable doubt defendant possessed narcotics paraphernalia. Proof that the offense has been committed does not require proof that the bag actually contained marijuana. Rather, the focus of the narcotics paraphernalia statute is upon any item adapted for use in narcotics activities. N.J.S.A. 2C:36-1. In that regard, we look to the surrounding circumstances. We are satisfied those circumstances provided substantial credible evidence that defendant possessed narcotics paraphernalia.

Defendant was observed in the surveillance operation stopping his vehicle and then being approached by an individual with whom he conversed before money was handed over to the individual. The individual then ran to another location and retrieved an item that he in turn gave to defendant. When police effectuated the motor vehicle stop, defendant dropped the plastic baggie. The observations made by the officers were consistent with narcotics activities, from which an inference could reasonably be drawn that the bag was intended to be used for packaging narcotics. The circumstances surrounding defendant's possession of the bag was inconsistent with legitimate uses.

Moreover, our conclusion is not altered by the State's failure to qualify Officer Bernard, who field-tested the suspected marijuana, as an expert. Defendant failed to object to the officer's testimony about his extensive background and experience as a narcotics officer engaged in narcotics detection and arrests Any error in failing to qualify the officer as an expert must be measured under the plain error standard namely whether the error was "sufficient to raise a reasonable doubt as to whether the error led to a result [not] otherwise reached" State v Macon 57 N.J. 325 336 (1971); R 2:10-2 Reviewed under that standard the circumstantial evidence demonstrating that the plastic bag was being used for narcotics activities was compelling Further in this day and age the evidence presented concerning the officers' observations leading up to defendant's possession of the plastic bag did not involve facts that were beyond the ken of the average trier of fact requiring expert testimony Any reasonable trier of fact would infer from the circumstances that a drug transaction was unfolding As such expert testimony was not needed to explain the likelihood that the officers had observed a drug transaction involving the exchange of a plastic baggie containing suspected narcotics for currency.

Affirmed


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