December 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CRAIG S. PITT, a/k/a CRAIG PITT, CRAIG PIT, CRAIG E. PITT, CRAIG S. PITTS, ALTRECK S. JONES, ALTERECK S. JONES, ALTREK JONES, JASIM TAYLOR, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-08-1565.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez, Ostrer and Carroll.
Tried by a jury, defendant Craig S. Pitt was convicted of eleven counts of an indictment charging him with drug offenses. He was sentenced on March 26, 2012 to an aggregate of twelve years imprisonment, subject to four years of parole ineligibility. He now appeals. We affirm.
Defendant was found guilty of the following: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of one-half ounce or more but less than five ounces of cocaine, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession with intent to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); second-degree possession with intent to distribute cocaine within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count six); third-degree possession with intent to distribute heroin within 1000 feet of a school, N.J.S.A. 2C:35-7 (count seven); second-degree possession with intent to distribute heroin within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count eight); third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count nine); third- degree distributing or dispensing heroin within 1000 feet of a school, N.J.S.A. 2C:35-7 (count ten); and second-degree distribution of heroin within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1 (count eleven). At sentencing, after granting the State's motion to impose an extended term because defendant had been previously convicted of drug distribution offenses, N.J.S.A. 2C:43-6(f), the judge appropriately merged counts one and two into count four; merged counts five and six into count seven; and merged count nine into count ten. He then imposed twelve years imprisonment subject to four years of parole ineligibility on counts four and eight, and five years subject to three years of parole ineligibility on counts seven, ten, and eleven. All sentences were to run concurrent.
At the motion to suppress hearing conducted prior to trial, the State presented one witness, Narcotic Enforcement Team Officer Dennie Young, an eleven-year veteran of the Irvington Police Department. On cross examination, defendant's attorney elicited the fact that Young had been recently suspended for allegedly employing excessive force during the course of an arrest. Young testified that, although "the case was dismissed, " he was found "departmentally" to have engaged in conduct that warranted suspension.
Young explained the circumstances leading to defendant's arrest. At approximately 7:00 p.m. on February 16, 2010, he set up surveillance at a particular intersection. He decided to monitor that specific corner because of recent complaints of "open-air drug trafficking activity in that area." At trial, Young explained his presence at the intersection at issue because usually "we receive independent information in regards to drug trafficking activity in certain areas. And when it came to my attention, I relayed the information that I obtained to [my supervisor] and he gave me the okay to look into it further."
Shortly after arrival, Young observed a man talking on a cell phone in front of #53 on the block, a two-level one-family home. He recognized defendant, whom he had arrested on a previous occasion. An unknown woman approached defendant and the two spoke briefly. Defendant went into the house, returned after a few seconds, and engaged in a hand-to-hand exchange with the woman. At trial, although Young on direct said he could not see the object that defendant handed over, on cross examination he said that he believed that the woman handed defendant some form of paper currency. During the suppression hearing, but not the trial, Young said he concluded he was observing drug activity.
After the woman left the area, a gray Infiniti G35 stopped nearby. Defendant waved the vehicle over to where he was standing in front of #51, adjacent to #53. Young saw defendant take something out of his jacket pocket and exchange something with the driver, who then left. At trial he said only that he saw defendant hand something to the occupant. He was asked on cross examination if he believed that he had witnessed "something to do with illegal activity, " and he responded "suspicious, yes."
After the Infiniti had driven away, a Ford Windstar minivan pulled up in front of #51, and defendant briefly spoke to the driver. He then walked back towards #53 and went inside the house, at which point Young called for backup. Officers responded within two or three minutes.
As defendant came out of the building and approached the Windstar, the officers converged on the vehicle. Defendant was observed, prior to noticing the plain-clothed officers, walking to the passenger side. Once defendant saw the officers approaching, he threw an item inside the vehicle and grabbed the paper currency the passenger handed him. Defendant turned to walk away and was immediately arrested. The officers found a deck of heroin on the passenger's lap, which Young believed to have been the item that defendant threw into the car. Young explained that he called in the arrest at 9:38 p.m.
Once the occupants of the Windstar and defendant were secured in a police vehicle, Young rang the bell at #53. Defendant's father opened the door, and Young explained that defendant had been arrested and was seated in a police vehicle. Defendant's mother also came to the door.
The parents told Young that defendant lived at #51 with his girlfriend, although he spent time at their house, #53. Young informed defendant's parents that he had been seen going in and out of #53, and that it was possible that there were drugs in their home. Young asked for permission to search the house and presented defendant's parents with a consent to search form. Young testified that he advised them that they had the right to refuse, as well as the right to stop the search at any time. He also informed them that they could accompany him during the search, which they did.
Young said that defendant's father commented that he had noticed defendant constantly going in and out of the house, up and down the stairs, and that he had considered the behavior to be suspicious. Each parent signed a separate consent to search form. Their signatures were witnessed by another officer. The consents to search were signed at 9:50 p.m.
The officers were directed by defendant's parents to a room defendant frequently used, and as they entered, they saw two shoe boxes placed on a stool. One contained 138 decks of heroin, sixty-one vials of crack cocaine, and a sandwich bag containing a twenty-gram rock of crack cocaine. Inside the second shoe box they found $323 in cash. The decks of heroin were stamped "Black Jack, " "Purple City, " and "Energizer." The deck of heroin recovered from the passenger in the Windstar was also stamped "Black Jack."
On cross examination during the motion hearing, defense counsel pursued a line of questioning challenging both Young's timeline and his claim that defendant's parents signed the consent forms voluntarily. He repeatedly pressed Young on the fact that he commenced monitoring the area at 7:00 p.m., claimed that the three transactions occurred within minutes of each other, yet the consent to search was not signed until 9:50 p.m. This timeline, counsel later argued, made no sense in light of Young's assertion that the search took less than thirty minutes.
Young also testified that he located a safe in the home, and claimed that a woman other than defendant's mother opened it for the officers. This woman was not mentioned in his police report. Nothing was found in the safe, but the woman did not execute a consent form for the search of the safe, which she claimed was hers. Young stated that he did not see this person until he and his colleagues were leaving, and that he did not know if she had been in the home during the entire search.
At the suppression hearing, defendant's father's testimony differed from Young's. He said that defendant was in the house when the police came to the door, and that defendant came downstairs in response to their knock. Once defendant opened the door, Young arrested and handcuffed him, and took him out to a police car. The father testified that Young just walked through the house, uninvited, into defendant's bedroom and the TV room upstairs, without asking for permission or even discussing this intrusion with him.
When the officer entered the TV room, he saw a safe that defendant's father could not open as he could not remember the combination to the lock. It was then, according to defendant's father, that the officer entered the room he described as defendant's bedroom, rummaged through defendant's dresser drawers, and searched a closet. While Young searched, defendant's father stood in the hallway, and defendant's mother remained in her bedroom. Eventually, he said, his wife opened the safe, which contained only papers and some loose change. On his way out, Young took a shoebox from defendant's bedroom and showed the father the contents, including several bags and money.
According to defendant's father, after Young first left the home, he returned with a consent to search form, demanding that he sign it. He claimed that Young told him that he would not be "locked up" so long as he did so. Young did not say anything else, only ordering him to sign the document. At the time, defendant's father claimed defendant's mother was in the living room. Defendant's father also claimed that Young was alone, and that the only reason that he signed the consent was in order to avoid arrest. He stated that Young did not inform him that he did not have to admit him into the home, or that the search could be stopped at any time.
Defendant's mother testified that she was probably asleep in an upstairs bedroom when her husband summoned her. As she left her bedroom, she saw two officers going through a drawer in defendant's bedroom. One officer showed her "some vials, " which they were taking out of a drawer. She said that she was the one who opened the safe, as the officers told her arrangements would otherwise have to be made for someone to break or remove the safe. As a result, defendant's mother went back into her bedroom, found the combination, and opened the safe. Inside were papers, including a birth certificate, and some loose change. Nothing was taken from it.
Defendant's mother said that the officers then went outside and returned with the consent to search form that they wanted her to sign. She said that, based on what she read on the form, she knew that she had the right to refuse; however, she alleged that the officer told her that if she did not sign the consent to search form the "State Police could come in and just ransack the house." Like her husband, defendant's mother claimed that the police never asked for permission to enter the home or search it, and did not advise her that she could stop the search at any time. When the judge asked why she signed the form if she understood that she had the right to refuse, she responded it was to avoid the state police ransacking the home if she did not sign.
In denying the motion to suppress drugs and money seized during the search of the residence, the trial court noted that defendant's parents' testimony differed, not only from Young's narrative, but from each other's. For example, although defendant's father claimed he signed the consent because he had been threatened with arrest, defendant's mother claimed she signed the consent because she had been threatened with the house being ransacked.
The court also observed that it was unlikely that the police would have permitted the occupants of the home to "wander about once they were in the house and that the police would allow [defendant's mother] to open up the safe . . . without the police being present." He also found it consequential that defendant's mother said that she understood the form, and that she believed her husband did as well, in contrast to the father's testimony.
The judge pointed to another fact that he considered significant, namely, that the officers would not have known which room to search unless they were directed there by someone. The officers searched only the TV room and defendant's room, and not the room occupied by defendant's mother or the downstairs.
Immediately prior to the commencement of the trial, the trial judge, not the same judge who presided over the motion to suppress, conducted a hearing regarding a missing police log, the destruction of a relevant dispatch tape, and Young's destruction of his notes after he prepared his police report. Defense counsel requested an instruction that would permit the jury to infer that the notes and tape would contradict the officer's testimony. As for the dispatch tape, the defense attorney said that it was destroyed because the police department apparently routinely destroyed such tapes after six months. Defense counsel also claimed the police department failed to preserve the log book in which each arrest was documented. The parties eventually stipulated that the State could not produce the arrest log.
The judge asked defense counsel to describe the information that would have been contained in the notes that would have been helpful. Defense counsel responded that the notes and dispatch tape were important for impeachment because they might contradict the testimony that Young had given at the suppression hearing. Counsel agreed to wait for the court's decision with regard to the requested instruction until after the conclusion of at least some of the testimony, and the judge agreed to permit defense counsel to question Young about the notes he destroyed. The assistant prosecutor had argued that while State v. W.B., 205 N.J. 588 (2011), required police officers to preserve their notes, the decision was not the governing law at the time of the arrest.
At trial, Young testified that he took notes while conducting the surveillance; however, he only used them to prepare his report, and he discarded them after it was prepared. Young said he knew that his call to dispatch and request for backup was recorded, but did not know if the recordings were preserved. Neither was he aware of any log book maintained when arrestees were processed at the police station. One of the other arresting officers who testified at trial, William Gatling, Jr., guessed that dispatch recordings were usually kept for three to six months, if that, and that he was not aware of any separate log book. At the conclusion of the testimonial portion of the trial, the judge decided that, because defendant had not established willful destruction of evidence, no adverse inference charge would be read to the jury. However, counsel would be permitted to comment on the unavailability of these documents in closing.
Young also acknowledged at trial that the contents of both shoe boxes had been consolidated into one box. A tow sheet, regarding the impoundment of the Windstar, indicated that the vehicle was not towed until 10:55 p.m. Young stated that the tow "was set in motion prior to the consent to search."
Gatling, who had acted as a backup officer, said that when he went to the passenger side of the Windstar, defendant was standing at the door, about to take money from the passenger or having just taken money from the passenger. When Gatling announced his presence, defendant immediately tossed an item into the van which landed on the passenger's lap area, turned, and began to walk away. Gatling then saw the passenger looking for the item on his lap, later discovered to be a deck of heroin stamped "Black Jack."
Gatling testified that he stayed outside, at the bottom of the stairs, when the other officers, Young and Sergeant Mack Trevaris, knocked on the door. He saw defendant's father answer the knock, and defendant's mother come to the door. He witnessed defendant's parents sign the consent to search forms. While the home was being searched, Gatling remained outside to watch defendant while another officer transported the occupants of the Windstar to the station. After the home was searched, he was ordered to do the necessary paperwork for the tow of the Windstar. By that point, Young had left, and, in any event, Young was not involved in the removal of the vehicle.
When Gatling patted defendant down in the station, he found the money that he had seen him take from the Windstar's passenger. Gatling could not recall the precise amount of cash on defendant; he had added that cash to the cash found in the shoe box.
During Gatling's direct examination, the court took judicial notice of a municipal ordinance adopting the school zone map and a public park map. Through Gatling, the State also established that the location of the alleged drug activity was within 500 feet of a public park and within 1000 feet of a public school.
Defense counsel did not object to the jury instructions after the two-day trial ended. Nor was any objection made to the judge giving the Czachor charge on the second day of jury deliberations when the jury sent a note advising that they were deadlocked, the first day having included several read-backs. At some unspecified time after hearing it, the jury requested that the charge be provided in writing. Although the judge did not provide jurors with a written copy, he reread it to the jury.
Because the jury also asked questions regarding reasonable doubt, the judge reread the model jury charge. Model Jury Charge (Criminal), "Presumption of Innocence, Burden of Proof, Reasonable Doubt" (2011). After lunch, deliberations resumed, and the jury was excused at 3:30 p.m. that Friday, having asked to hear additional portions of the trial testimony. Deliberations resumed on the following Monday at 11:00 a.m. After read-backs and play-backs on Monday, which took less than an hour, jurors were excused for lunch, and returned to complete the play-back.
The jury sent a second note stating that they were hopelessly deadlocked. The judge reminded them that they had actually only deliberated approximately fifteen minutes that day because of play-backs and he again read the Czachor charge. At 3:45, the jury sent another note stating they were deadlocked and that they did not believe that further deliberations would be appropriate. Because the jurors had deliberated, at most, for two full days on an eleven-count indictment, the judge did not declare a mistrial. Counsel did not object to this decision, and the jury was asked to return the following morning. By noon, the jury arrived at a verdict.
Before the verdict was returned, as jurors were leaving for a break, a juror was seen with a cell phone and another with a deck of playing cards. These observations were discussed during oral argument on defendant's motion for a new trial; however, we do not have a transcript regarding any testimony that may have been taken on the subject. The court denied the motion because, first, the mere fact a cell phone was on the table did not mean it was used in some inappropriate fashion that would nullify the jury's verdict. Similarly, the fact someone had playing cards while in the jury room alone did not establish that they were used during deliberations or otherwise warranted setting aside the jury's verdict.
At sentencing, the State moved for the imposition of a mandatory extended term because defendant had been previously convicted of drug distribution. N.J.S.A. 2C:46-6(f). Defendant had been arrested on twenty-four other occasions, been convicted in municipal court six times, had a substantial juvenile record, and had at least eight indictable convictions, most of which were drug-related. Defendant had been previously sentenced to state prison and treated unsuccessfully for cocaine and heroin abuse. The court found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no factors in mitigation.
On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED BY THE ADMISSION OF HEARSAY EVIDENCE FROM ABSENTEE WITNESSES. (Not Raised Below)
A. HEARSAY EVIDENCE THAT PROVED AN INTENT TO DISTRIBUTE CDS SHOULD HAVE BEEN EXCLUDED.
B. THE ADMISSION OF HEARSAY EVIDENCE VIOLATED THE CONFRONTATION CLAUSE.
1. THE DEFENDANT WAS DENIED THE OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE WITNESSES RELIED ON BY THE STATE TO CONVICT THE DEFENDANT OF DRUG CRIMES.
2. THE STATE VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION BY ADMITTING HEARSAY EVIDENCE PREPARED BY THE GOVERNMENT FOR THE PURPOSE OF CRIMINAL PROSECUTION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DISCHARGE JURORS AFTER THEY SAID MULTIPLE TIMES THEY COULD NOT REACH A VERDICT AND BY THE COURT'S ERRONEOUS INSTRUCTIONS TO CONTINUE DELIBERATIONS. (Partially Raised Below)
A. THE TRIAL COURT SHOULD HAVE DISCHARGED THE JURORS OR MADE INQUIRY ABOUT THEIR ABILITY TO CONTINUE DELIBERATIONS.
B. THE TRIAL COURT'S INSTRUCTION TO THE JURORS ADVISING THEM TO CONTINUE THEIR DELIBERATIONS WAS ERRONEOUS AND PREJUDICIAL. (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. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION.
A. THE TRIAL COURT'S INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION WAS CONTRADICTORY AND CONFUSING.
B. THE TRIAL COURT FAILED TO MOLD THE INSTRUCTION TO THE FACTS OF THE CASE FOLLOWING A REQUEST FOR A REINSTRUCTION ON THE ESSENTIAL ELEMENT OF CONSTRUCTIVE POSSESSION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A "SPOLIATION" INSTRUCTION. (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. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED [A] HIGHLY PREJUDICIAL OPINION THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATE[S] CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL EVIDENCE WITH MINIMAL PROBATIVE VALUE. (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. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, INCOMPLETE, AND PREJUDICIAL INSTRUCTIONS ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)
A. THE INSTRUCTION ON THE LAW OF ATTEMPT WAS INCOMPLETE, ERRONEOUS, AND PREJUDICIAL.
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT IT CANNOT FIND THAT THE DEFENDANT INTENDED TO ATTEMPT DISTRIBUTION KNOWINGLY.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO PROVE WITH CREDIBLE EVIDENCE THAT THE WARRANTLESS SEARCH AND SEIZURE WAS LAWFUL.
THE DEFENDANT'S SENTENCE IS EXCESSIVE THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
Defendant raises the following points in his uncounseled brief:
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING THE DEFENDA[N]T'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE EVIDENCE OBTAINED FROM THE ILLEGAL, WARRANTLESS ARREST IS FRUIT OF THE POISON[OUS] TREE AND MUST THEREFORE BE SUPPRESSED
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE
HEARSAY INSTRUCTED DURING THE PROSECUTION'S CASE-IN-CHIEF DEPRIVED DEFENDANT OF A FAIR TRIAL
DEFENDANT IS ENTITLED TO A REVERSAL BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO FAIR TRIAL (NOT RAISED BELOW)
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE
In the main, the points defendant raises on appeal address issues not argued to the trial court. Rule 1:7-2 provides that, in order to preserve questions for appeal, a party must "make known to the court specifically the action" that the party wishes the court to take, or its objection to action that the court is taking; and that a party may not assert that jury charges, or omissions from jury charges, were erroneous "unless objections are made thereto before the jury retires to consider its verdict." We therefore apply the plain error standard of review. See R. 2:10-2. Unless the alleged trial errors are "of such a nature as to have been clearly capable of producing an unjust result, " we will disregard them. Ibid.
A court must provide clear and correct jury charges, and the failure to do so may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Jury charges must set forth the issues, correctly state the applicable law, outline the jury's function, and plainly explain how the jury should apply the legal principles to the facts of the case. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). "As a general rule, an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Initially relying on State v. Bankston, 63 N.J. 263 (1973), and State v. Vandeweaghe, 177 N.J. 229 (2003), defendant contends that Young's statement, concerning his receipt of "independent information in regards to drug trafficking activity, " was inadmissible hearsay, the admission of which violated his constitutional right to confrontation. We do not agree.
The thrust of the relevant precedent is that officers are precluded from testifying in a fashion that implies that they have knowledge regarding illegal activity on the part of a defendant, which knowledge is not being shared with the jury. Here, however, Young only testified that he was aware of general information regarding open-air drug trafficking in the area. In no way did the testimony suggest that defendant was a target. Nor did it even suggest that the information was reliable, it just explained the reason he decided to conduct surveillance.
Even after Bankston, an officer may give a limited explanation for an investigation, although he may not testify to specific details, either as to a crime or a suspect. Young's testimony did not violate these principles or the confrontation clause.
Additionally, the jury heard Young describe defendant's three different encounters before the decision was made to arrest. When the officers approached to arrest, defendant was observed tossing a deck of heroin into a car and attempting to walk away with a handful of cash. The significance of Young's explanation pales in light of the events leading to defendant's arrest. Admission of the testimony was not error at all, much less plain error.
Defendant also challenges use of the zoning maps and ordinance that established that the drug transaction occurred within 500 feet of a park and 1000 feet of a school. Gatling testified as to both documents, which were admitted into evidence without objection. See N.J.S.A. 2C:35-7(f).
Defendant attempts to draw a parallel between the reliance on the maps in this case and State v. Simbara, 175 N.J. 37, 46-49 (2002), in which a laboratory certificate was deemed inadmissible. The conviction was vacated because the defendant had timely requested to cross-examine the chemist who prepared the report and the State did not produce him at trial. The holding in Simbara, however, is that a laboratory certificate is not equivalent to a business record. Id. at 49. A laboratory certificate is a document prepared solely for the government's use in the potential criminal prosecution against a specific individual. Ibid. That is entirely different than this case, where the map and ordinance, both public documents, were not prepared with this particular criminal prosecution in mind. The State's use in this case of the maps and ordinance is sanctioned by statute and does not violate defendant's right of confrontation. We consider this argument to lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also contends that the trial court erred in failing to discharge the jury and declare a mistrial. Clearly, a judge is required to do so after a "reasonable period of deliberations" has taken place. Czachor, supra, 82 N.J. at 407. In determining what constitutes a reasonable length of time, the judge must weigh "all the relevant circumstances including the length and complexity of the trial." Ibid. This jury actually did not deliberate for an unreasonable length of time given the many play-backs they requested and the questions they asked. They deliberated two full days. The judge therefore had justification for concluding a "reasonable period of deliberations" had not elapsed, and that a mistrial was not warranted.
When the judge read the Czachor charge the second time, it was only in lieu of the jury's request that the instruction be provided in writing. When he read the Czachor instruction the third time, a Monday, the jury had deliberated a total of approximately fifteen minutes that day after hearing the playbacks that had been requested the prior Friday. The judge directed jurors to return the following morning, Tuesday, because they had deliberated so little that day. This was a heavily contested two-day trial, relating to eleven counts. Under these somewhat unusual circumstances, the court's exercise of discretion was justified because a reasonable period of deliberations had not taken place.
Defendant also challenges the court's use of the term "convinced, " rather than "firmly convinced, " when it rendered the Czachor charges. The Czachor Court recommended that the language drafted by the American Bar Association be adopted by trial courts. Czachor, supra, 82 N.J. at 407. It read, in relevant part: "In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous." Id. at 406-07 n.4 (emphasis added). The trial court clearly complied with this directive and followed the Model Jury Charge, employing the relevant language. Model Jury Charge (Criminal), "Further Jury Deliberations" (2011). Thus, we consider defendant's argument in this regard to be so lacking in merit as not to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Plain error in a jury charge is defined as "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970). The trial court is obliged to instruct a jury fully, clearly, and accurately as to the elements of the offense and relevant mental state. See State v. Green, 86 N.J. 281, 287-91 (1981). But, alleged errors in a charge that were clearly harmless and could not have affected the jury's deliberations do not warrant reversal. State v. Docaj, 407 N.J.Super. 352, 369-71 (App. Div.), certif. denied, 200 N.J. 370 (2009). None of the alleged errors in the jury charges raise the specter of unjust result.
Defendant contends the trial court's instructions regarding constructive possession were "erroneous and prejudicial, " and "contradictory and confusing." We note that the judge gave the definition virtually verbatim following the Model Jury Charge (Criminal), "Possession" (2011). The complete instruction, not just the portion quoted in defendant's brief, clearly explains that constructive possession requires only that a person knowingly have the power and intention at a given time to exercise control. There is nothing in that formulation that is confusing, particularly in this case, where the items at issue were found in a room frequently used by defendant, and where at least some of the drugs bore the same stamp as the deck of heroin defendant was observed throwing onto the lap of a buyer.
Defendant also contends that the judge should have molded the constructive possession instruction in some unspecified fashion to fit the facts in this case, particularly after the jury asked for additional legal guidance on that issue. Given the fairly routine factual circumstances of this case and the judge's reading of a model instruction, we see no reason why a specially molded instruction was necessary. The necessity for such an instruction is not triggered merely by a jury's request to have a particular instruction repeated. We consider this argument to be so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Without objection, the trial judge gave the model jury charge regarding intent to distribute. Defendant now asserts that, since that language includes the phrase "or attempted, " the instruction on attempt should also have been read to the jury, or the language deleted from the model charge. We also consider this argument so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant asserts he was severely prejudiced by the trial court's failure to give the jury a "spoliation" instruction even though Young destroyed his notes and the department failed to retain the dispatch tape. We assess this claim of error employing the plain error standard of review. See R. 2:10-2.
Prior to summations, the trial judge found that defendant had not demonstrated willful destruction of evidence such as would warrant an adverse inference charge, and, for that reason, gave none. Despite this finding, the court allowed counsel to comment on the unavailability of the documents. In the absence of any demonstration, as opposed to speculation, that the notes were probative and that the destruction was intended to deprive defendant of exculpatory material or material helpful to his defense, prior to the issuance of W.B., there was no requirement that such an instruction be given.
This was not a case in which Young's observations alone were the basis for conviction. Defendant was apprehended in the midst of a drug sale, witnessed by several officers. After his arrest, a consent to search was obtained that revealed additional contraband, which the jury found was in defendant's constructive possession. The absence of the notes and dispatch tapes in this case, tried prior to W.B., had no effect on the outcome. Accordingly, the absence of a spoliation instruction was not error.
Defendant contends that Young's testimony improperly exceeded his factual observations, spilling over into highly prejudicial expert testimony, in violation of the principles enunciated in State v. McLean, 205 N.J. 438 (2011). On this point, we note that Young did not say that he thought that the object that the woman handed defendant was money, or that the exchange with the occupant of the Infiniti was suspicious until pressed on cross examination.
Young had earlier testified before the jury that he could not see, and, therefore, did not know, the nature of the objects that defendant was handing over. It is worth noting that defendant was not charged as a result of either transaction. And, even if for the sake of argument, we assume that Young went beyond the limits of his observations, given defendant's arrest and the discovery of drugs in his parents' home, the testimony was not prejudicial.
McLean prohibits an officer, testifying as a fact witness, from opining that he has seen a hand-to-hand drug transaction. Id. at 460. Young did not do that. When pressed by defense counsel, he said he might have seen the woman in the first encounter hand defendant money, and that the encounter with the Infiniti was suspicious. That is not the type of testimony prohibited by McLean.
Defendant asserts that the officers' act of adding together the money found in the shoe box and on defendant's person was highly prejudicial. This point is so lacking in merit as to not warrant any discussion in a written opinion. R. 2:11-3(e)(2).
In reviewing the outcome of a motion to suppress on appeal, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J.Super. 208, 228 (App. Div. 2006), aff'd in part, rev'd in part on other grounds, 192 N.J. 224). An appellate court should not disturb the findings of the trial court simply because an appellate court "might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). The trial court's legal conclusions, however, are not entitled to the same deference — "appellate review of legal determinations is plenary." State v. Handy, 206 N.J. 39, 45 (2011).
Defendant challenges the court's denial of his motion to suppress based on the premise that his parents were credible and Young was not. Ultimately, the judge who decided the motion to suppress denied defendant relief premised on defendant's parents' lack of credibility. He found Young to be credible. This assessment is supported by the record.
All the officers testified that defendant was arrested as he attempted to walk away from the Windstar. Only defendant's father said that defendant was arrested while in the house, right after he came down the interior stairs to answer a knock at the door. And as the judge also pointed out, it would be unlikely that the officers would have allowed defendant's mother to wander unsupervised around the house, or to open a safe unless they were present. Yet that was her testimony. The officers would not have known which rooms to search unless defendant's parents told them. There is an inherent bias in their testimony, attributable to the familial relationship. These details provide ample support for the judge's conclusion that defendant's parents were not believable. We therefore find the judge's factual findings to be supported by the record.
Furthermore, nothing about the judge's legal conclusions warrants reversal. If Young's statements are credible, and defendant's parents' statements incredible, defendant's parents knowingly and voluntarily signed consents to search. See State v. Johnson, 68 N.J. 349, 353-54 (1975) ("[W]here the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.").
Defendant contends his sentence is excessive. 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 were 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 light of defendant's prior criminal history and the fact he was mandatory extended-term eligible, this sentence does not shock our conscience.
The mitigating factors defendant suggests, one, two, and eleven, are simply not supported by precedent or by defendant's personal history. In State v. Tarver, 272 N.J.Super. 414, 418 (App. Div. 1994), the defendant was convicted of multiple drug-related crimes. There, we rejected the argument that the trial court should have applied mitigating factors one and two because of the self-evident proposition that "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." Id. at 435. Moreover, defendant's knowledge and understanding of the serious harm society perceives to be caused by drug distribution can be attributed to him in light of his prior sentences. Given the quantities of drugs found in his possession, the argument that factors one and two should have been found has no basis in the law. See State v. Cullen, 351 N.J.Super. 505, 511 (App. Div. 2002).
Every incarcerated defendant's family suffers hardship; every child whose father or mother is imprisoned suffers hardship. That, alone, does not constitute a basis for mitigating factor eleven, that imprisonment would entail excessive hardship on a defendant or his family. Nothing in the record established anything unique about this defendant's circumstances or his relationship with his children. See State v. Dalziel, 182 N.J. 494, 505 (2005). Defendant received a sentence on the low end of the sentencing range, twelve years, despite the absence of any mitigating factors. This sentence is supported by the record, complies with the Code, and does not shock our conscience.
The points raised by defendant in his pro se submission have been, in the main, addressed in our discussion of the points raised in his counseled brief. However, we briefly address two additional arguments.
First, defendant contends that he was ineffectively represented by trial counsel. Such claims are ordinarily addressed by way of petition for post-conviction relief, not on direct appeal. See State v. McDonald, 211 N.J. 4, 30 (2012).
Secondly, defendant asserts that the effect of cumulative errors prejudiced his right to a fair trial. Since we find that no error was committed, no cumulative prejudicial effect resulted.