Opinion
DOCKET NO. A-5563-11T4
06-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HEINZ BERECZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-1576. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Heinz Berecz was convicted of possession of less than fifty grams of marijuana, a disorderly persons offense, N.J.S.A. 2C:35-10(a)(4), as a lesser-included offense of fourth-degree possession of fifty grams or more, N.J.S.A. 2C:35- 10(a)(4); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11); doing so within 1000 feet of school property, a third-degree offense, N.J.S.A. 2C:35-7; and doing so within 500 feet of a public housing facility, a second-degree offense, N.J.S.A. 2C:35-7.1. After merger, the court sentenced defendant to an extended term of seven years imprisonment, with a minimum forty-two-month period of parole ineligibility on the possession with intent to distribute offense, concurrent with the same sentence for the public housing conviction.
On appeal, defendant raises the following points for our review:
POINT I
BY INCORPORATING EVIDENCE PRESENTED AT TRIAL INTO THE QUESTIONS POSED TO THE NARCOTICS EXPERT, THE STATE IMPERMISSIBLY INTRODUCED EXPERT OPINION TESTIMONY THAT INVADED THE PROVINCE OF THE JURY. (Not Raised Below).
POINT II
THE TRIAL JUDGE IMPERMISSIBLY DIRECTED THE VERDICT BY INSTRUCTING THE JURY THAT THE DEFENDANT "ASSERTED NO DEFENSE" TO COUNT FOUR. (Partially Raised Below).
POINT III
MR. BERECZ WAS DENIED HIS FUNDAMENTAL RIGHT TO COUNSEL OF CHOICE.
POINT IV
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION TO SUPPRESS EVIDENCE.
A. The State Failed to Demonstrate that the Incriminating Nature of the Evidence was Immediately Apparent. Therefore, the Plain View Doctrine is Inapplicable.
B. The Lower Court's Reliance Upon State v. Carter was Misplaced.
POINT V
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The Sentencing Court Erred in Finding Aggravating Factors Three, Six, and Nine.
B. The Sentencing Court Failed to Consider Mr. Berecz's Service in the Army as a Non-Statutory Mitigating Factor.
C. The Sentence Imposed Was Not Offense-Oriented, as Required by State v. Roth and State v. Hodge.
Having considered defendant's arguments in light of the record and applicable legal principles, we affirm the conviction, and remand for reconsideration of the sentence.
I.
We consider first defendant's argument that the court erred in denying his motion to suppress the marijuana seized from his parked vehicle after a warrantless search. The court conducted a lengthy testimonial hearing, and issued a comprehensive written opinion.
The court heard two competing versions of the circumstances leading to the search. The State relied on the testimony of Perth Amboy Police detective-sergeant Joseph J. Breyta. Defendant testified in opposition, along with two eyewitnesses. The court found the police witness to be credible and adopted his account of what happened.
Breyta testified that shortly before 7:00 p.m. on August 24, 2010, he observed that defendant's Volvo was parked too close to the stop sign. See N.J.S.A. 39:4-138(h). Defendant left the car and began to walk across the street to speak to another person. Breyta approached defendant, who volunteered that he possessed pepper spray for his protection. Defendant gave it to the officer upon his request.
Breyta then confirmed that the Volvo was defendant's car. Breyta "ran the plate number" and ascertained the registration had expired. Defendant disputed Breyta's finding, so Breyta told defendant to produce his insurance and registration. Defendant then crossed the street, to enter his vehicle. Breyta followed closely behind.
Breyta stood near the Volvo while defendant was in the driver's seat, with the door open. Defendant retrieved his registration from the glove compartment and gave it to Breyta. After Breyta reviewed the registration card, which expired the previous month, he saw defendant reach below his seat and attempt to hide a floral print bag. Breyta testified that at that point, he did not know what was in the bag, but he feared it might be a weapon. Over defendant's protests, Breyta commanded defendant to exit the vehicle and stand on the other side of the vehicle, next to Breyta's partner. Once defendant vacated the vehicle, Breyta testified that, from a vantage point outside the vehicle, he saw the bag was partially opened, and he could see, sticking out, a plastic bag containing what he believed was marijuana. Breyta seized the bag. Breyta found the bag contained marijuana packaged in multiple plastic bags, along with a scale. Breyta testified that he also spotted additional plastic bags of suspected marijuana in the open map pocket of the driver's side door. Defendant was arrested.
Defendant claimed the marijuana was not visible from outside the vehicle. Rather, he claimed Breyta discovered it after first entering the vehicle and searching it.
Defendant testified that he was subjected to a search of the person upon crossing the street after exiting a friend's vehicle that was parked in front of defendant's Volvo. The police seized the pepper spray incident to the search. Police also searched two other persons.
Defendant confirmed that Breyta alleged his car's registration was expired. But, he asserted that after he produced his expired registration, Breyta commanded him to exit. Over defendant's vehement protests, Breyta entered his vehicle. Breyta found the floral bag, which was zipped close. He opened it and discovered its contents.
Two eyewitnesses confirmed defendant's version of events. One witness said he was one of the two other men police allegedly searched. He testified he saw officers search defendant in the street and seize the pepper spray. Police then told the witness to leave the area, which he did.
A second eyewitness testified she observed the police's interaction with defendant from her second floor window. She claimed that once defendant exited his car, one officer entered, retrieved the closed bag, shook it around, and opened it.
Based on its adoption of Breyta's version of events, the court found that the officer was authorized to order defendant to exit the vehicle, once defendant began to reach below the seat. Citing State v. Carter, 235 N.J. Super. 232, 239 (App. Div. 1989), the court held the officer's action was justified by his concern for his own safety. Citing State v. Smith, 134 N.J. 599, 610 (1994), the court also held that removal of defendant from the vehicle was warranted because the vehicle was not properly registered. After defendant exited the Volvo, Breyta was able to see the suspected marijuana in plain view from his vantage point outside the vehicle. The court held that under the "plain view" exception, as set forth in State v. Johnson, 171 N.J. 192, 207 (2002), Breyta was authorized to seize the marijuana because he was lawfully present in the viewing area, he inadvertently discovered the evidence in plain view, and it was immediately apparent that the items were contraband.
We defer to the trial court's factual findings. "[A]n appellate court reviewing a motion to suppress 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. Robinson, 200 N.J. 1, 15 (2009) (internal quotation marks and citations omitted); see also State v. Elders, 192 N.J. 224, 243 (2007). We defer because the trial court's findings are "substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Robinson, supra, 200 N.J. at 15 (internal quotation marks and citation omitted). We are not free to weigh the evidence ourselves. State v. Locurto, 157 N.J. 463, 472 (1999).
We "owe[] no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). Thus, we exercise plenary review of the trial court's application of the law to the facts on a motion to suppress. See State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999). However, we discern no error in the court's legal conclusions, and affirm his denial of the suppression motion substantially for the reasons set forth in his cogent opinion.
We add the following brief comments. Defendant argues that the court's finding that the marijuana was in plain view was contrary to Breyta's own testimony. We disagree. Defendant misplaces reliance on Breyta's testimony that when he first saw defendant attempt to hide the bag, Breyta did not know its contents. However, the plain view doctrine was implicated later, after defendant exited the vehicle. At that point, the items were visible, in plain view, according to Breyta. He was then authorized to seize it, notwithstanding that defendant was standing on the other side of the vehicle. See Mann, supra, 203 N.J. at 341 (finding that the plain view exception justified police entry into vehicle to seize bags of what appeared to be drugs, notwithstanding the prior arrest of suspect).
Defendant also contends that Breyta was not authorized under the circumstances to conduct a protective sweep of the vehicle, according to the standards set forth in State v. Lund, 119 N.J. 35, 48 (1990). Further, he argues that the court erred in relying on Carter, which was limited by Lund. Again, we are unpersuaded.
Simply put, Breyta did not conduct a protective search of the vehicle. He removed defendant from the vehicle. He was authorized to do so not only for his own safety, but also because defendant was not authorized to drive his unregistered vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977) (stating that once a motor vehicle has been lawfully detained for a traffic violation, an expired license plate, the police may order the driver out of the vehicle without running afoul of the Fourth Amendment's proscription against unreasonable searches and seizures); Smith, supra, 134 N.J. at 611 (adopting Mimms test). The subsequent seizure of the bag was based on the plain view observations, not a protective search.
II.
Defendant also seeks reversal based on three alleged trial errors. He contends, as plain error, the State's drug distribution expert testified regarding the evidence in this case, as opposed to responding to hypotheticals, contrary to State v. McLean, 205 N.J. 438 (2011), and State v. Odom, 116 N.J. 65 (1989). He argues the court erred in denying his request for new counsel in the midst of the trial. Finally, he asserts a misstatement by the trial court in its instructions to the jury amounted to a directed verdict.
A.
It is well-established that the State may utilize an expert to address aspects of drug possession and distribution beyond the ken of the average juror. State v. Nesbitt, 185 N.J. 504, 507 (2006). However, an expert may not opine about facts, although disputed, within the jury's capacity to resolve. State v. Sowell, 213 N.J. 89, 93-94, 100 (2013).
The State may ask such experts "a hypothetical question mirroring the facts of the case, even though the hypothetical may be 'expressed in terms of ultimate issues of fact.'" Nesbitt, supra, 185 N.J. at 507 (quoting Odom, supra, 116 N.J. at 81). However, in responding to a hypothetical, the expert must hew closely to the facts set forth, and not rely on facts outside the hypothetical. Sowell, supra, 213 N.J. at 106-07. An expert may not express an "opinion of defendant's guilt," but may "characterize[] defendant's conduct based on the facts in evidence in light of his specialized knowledge." Odom, supra, 116 N.J. at 79. An expert may express an opinion in terms "similar to the statutory definition of the offense," id. at 81, but the expert should avoid using the "precise language of the statute that defines the crime." McLean, supra, 205 N.J. at 455. In exercising its gatekeeper role, the court is required to enforce these limitations, even in the absence of an objection. Sowell, supra, 213 N.J. at 104.
At trial, the State presented the opinion testimony of Middlesex County Prosecutor's Office sergeant Kevin M. Morton, who was admitted without objection as an expert regarding the issue of possession with intent to distribute drugs. Morton opined that the marijuana seized from defendant was intended for distribution. He relied on the following: the drugs were packaged in numerous plastic bags; defendant possessed empty plastic bags for additional sales, pepper spray for protection, a scale for weighing product, and $221 in currency; and defendant did not possess devices used for consumption of marijuana consistent with possession for personal use.
Defendant argues the court erred in allowing the State to present for Morton's inspection and characterization the actual packaged marijuana seized from defendant and entered in evidence. He argues that the State, in so doing, exceeded the boundaries of permissible hypothetical questioning.
Defense counsel did not object when the State presented Morton with the marijuana in evidence, and posed a series of related questions regarding one bag containing four smaller Ziploc bags of marijuana, and another large bag containing three smaller bags. Focusing on the four-in-one bag, Morton opined that the subdivision of the marijuana "le[d] [him] to believe . . . that [the] bags have been separated for distribution because they're separate." Although the interior plastic bags were the same size, they contained varying quantities of marijuana. Asked whether there was any significance to that, Morton asserted, the bags were possessed for distribution, stating "[W]ho was ever distributing the suspected marijuana used the same bags for distribution." Morton offered similar opinions regarding the three-in-one bag. He also opined that if the marijuana contained in the evidence presented had been intended for a single person's use, it would have been packaged in a single bag.
Morton also estimated the value of the total amount of marijuana, and the individual separate quantities. He examined the empty bags and scale admitted into evidence, and testified that they were significant indicators of possession with intent to distribute. Morton was also asked to comment about the currency, and the denominations, seized from defendant, without posing a hypothetical.
The prosecutor also posed a series of hypothetical questions, but did so by referring expressly to the evidence in the case. For example, the prosecutor posed the following hypothetical: "A local Police Officer observed an individual, and that individual has . . . two bags of marijuana, large bags consistent with the larger bags in S-12 and S-13 . . . ." Other hypothetical questions similarly incorporated direct references to the evidence.
On cross-examination, defense counsel likewise repeatedly asked Morton to comment on the evidence in the case, without any effort to present the questions in the form of hypotheticals. For example, he directed Morton's attention to the various actual weights of the seven bags of marijuana — 3.4, 3.65, 4.2, 5.38, 8.2, 9.48 and 18.5 grams — in effort, albeit unsuccessful, to elicit Morton's admission that such uneven quantities were atypical of possession with intent to distribute, and inconsistent with Morton's prior testimony that dealers carefully weigh out their product. Similarly, defense counsel asked Morton whether he agreed that the denominations of currency defendant possessed — ten twenty-dollar bills, two ten-dollar bills, and a one-dollar bill — were atypical of a dealer who might need to make change.
Defense counsel also referred to the absence of "rolling papers, a pipe, anything like that" in defendant's vehicle, and asked whether that simply meant, "[T]here was no intent to smoke pot in the car that day[.] You don't know what was going to happen in Edison where the person lived?" Counsel tried to contrast the facts in the case with Morton's testimony on direct that drug dealers try to maintain secrecy. Defense counsel asked, "Now, in this case, it's alleged that the drugs were kind of spread out in the guy's car in that open zipper bag, this bag that the Prosecutor showed you?" Morton later referred not only to the evidence embedded in defense counsel's query, but his own recollection, based on his review of the discovery, that "the individual [was] trying to stuff that bag underneath the seat at the same time."
In sum, neither the State nor the defense scrupulously observed the strictures governing the use of a narcotics expert. The Court has cautioned that even hypothetical questions may usurp the role of the jury if they track a statute too closely; incorporate facts not in evidence; or present disputes within a jury's capacity to determine. Here, both sides at various points abandoned any attempt to elicit Morton's opinion in the form of hypothetical questions.
If only the State approached the questioning in this manner, we would examine whether the error was harmless. See Sowell, supra, 213 N.J. at 107-08 (finding no plain error, despite violation of principles in Odom and McLean, because of overwhelming evidence of guilt). However, here, we consider as well that defense counsel affirmatively elicited the expert's comments on the evidence without the use of hypotheticals. It is apparent that defense counsel did not perceive any prejudice from the State's departure from hypothetical questions. See State v. Echols, 199 N.J. 344, 360 (2009) (stating that failure to object to prosecutor's remarks indicates that defense counsel did not perceive them to be prejudicial).
We consequently view defendant's newly minted complaint about the scope of the questioning of Morton to be barred by the invited error doctrine. It is clear that defense counsel considered direct questioning of Morton about the evidence to be part of the defense strategy. See State v. A.R., 213 N.J. 542, 561-63 (2013) (applying invited error doctrine where defense counsel did not object to presentation of video evidence to deliberating jury because counsel strategically chose to make affirmative use of it in the defense case); N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 342 (2010) (applying invited error doctrine where defense counsel indicated he did not object to admission of various documents where counsel "may have made a strategic decision to try the case based on the documents"). Defendant may not argue now that the State's questioning on the evidence warrants a new trial, when defense counsel affirmatively pursued the same strategy.
B.
As the State was about to rest — its only remaining witness was prepared to testify about the chain of custody of the seized drugs — defendant requested permission to discharge his appointed attorney. He stated, "I would like to ask — I want to dismiss my Attorney." He conceded that he "did not have the financial wherewithal to afford a private Attorney" when his trial defense attorney was appointed. He did not assert that his financial situation had changed. Defendant disclosed to the court that he and his attorney disagreed about trial strategy. Defendant faulted his attorney for failing to secure the testimony of a defense drug expert, and other witnesses. He also complained that his attorney did not confer with him sufficiently, or obtain transcripts of the grand jury proceedings and the suppression hearing.
The trial court addressed the issue of transcripts, expressed confidence in defense counsel's competence, and stated that differences of opinion between clients and attorneys were not unusual. The court concluded that defendant would not be prepared to proceed without his attorney:
[I]n terms of wanting to discharge him, you don't have another Attorney today. I would have to call a mistrial or you would have to proceed on your own. I don't see that you're here with another Attorney, and it's usually the position of the Public Defender's Office not to provide another Attorney for you. . . . I don't know if you contacted them or not.After additional comments from defendant, defense counsel, and the assistant prosecutor, the court declined to suspend the trial.
On appeal, defendant argues that the court committed structural error by failing "to develop an adequate record or otherwise invoke the appropriate analytical framework." We recognize that the court should have clarified whether defendant wished to exercise his constitutional right to represent himself after discharging his attorney. See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562, 572 (1975); State v. King, 210 N.J. 2, 16-20 (2012). However, based on his arguments before us, it is clear defendant did not wish to represent himself; he wanted substitute counsel. He argues the court deprived him of his right to the counsel of his choice by failing to engage in the analysis required by State v. Kates, 216 N.J. 393, 395-97 (2014) and State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985). We are unpersuaded.
Defendant did not have a replacement attorney ready to step in, nor did he profess the ability to hire one. We thus construe defendant's request as one for new appointed counsel. However, as we have observed, "[A]n indigent defendant who is represented by appointed counsel does not enjoy a right to choose counsel." State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012), aff'd 216 N.J. 393 (2014); see also Morris v. Slappy, 461 U.S. 1, 10-15, 103 S. Ct. 1610, 1615-18, 75 L. Ed. 2d 610, 619-22 (1983) (stating that a court did not deny an indigent defendant his right to counsel when it refused a continuance to allow the originally assigned public defender to recover from surgery, and compelled the defendant to proceed with a newly appointed public defender). Defendant's argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
C.
We also find no merit in defendant's argument that the court impermissibly "directed the verdict" as a result of a misstatement in the jury instructions. The court initially referred to the affirmative defense to the public housing charge, stating that defendant asserted he did not possess with the intent to distribute marijuana for profit and he did not possess with intent to distribute to a person seventeen years old or younger. The court followed the Model Jury Charge (Criminal), "Distributing a Controlled Dangerous Substance: Proximity to Public Housing Facilities, Parks or Buildings (N.J.S.A. 2C:35-7.1)" (2001), and advised that defendant had the burden to prove the affirmative defense by a preponderance of the evidence.
In a subsequent sidebar conference, the assistant prosecutor and defense counsel both agreed that the affirmative defense did not apply and the instruction was not appropriate. The assistant prosecutor asked the judge to instruct the jury that it should disregard the defense, but reiterated the burden remains with the State. Defense counsel agreed that the jury should be instructed that the burden never shifts.
The trial judge's attempt to clarify his instruction resulted in the statement, "defendant . . . has asserted no defense." The judge stated:
In discussing Count Four in the Indictment, possession [of] [CDS] with intent to distribute in proximity to public housing, I discussed with you and read to you a defense that the Defendant has asserted. The Defendant in this case has asserted no defense. I'm going to ask that you disregard that and not discuss that in your deliberations.
It's not part of my charge. All Counts of the Indictment, it is the State's burden to prove beyond a reasonable doubt the charges in each of the elements of that charge. That burden never, ever shifts to the Defendant. The Defendant has no duty or obligation to present any defenses or prove his innocence. That burden is upon the State and always is upon the State to prove and never shifts to a Defendant.
So my reading with respect to Count Four of the Indictment, a defense of the Defendant you should disregard and not consider in your final deliberations.
[(Emphasis added).]
Defense counsel asked the court to provide an additional clarification, stating that defendant "maintains his innocence as a defense. It almost sounded as though you said he has no defense, and I didn't want them to be confused."
The assistant prosecutor and defense counsel agreed an additional instruction was needed. The judge agreed to reinstruct the jury, which he did as follows:
Okay. In discussing Count Four, I talked about a defense and I said the Defendant has not presented a defense. What I want to make clear and clarify is this: That the Defendant has not asserted a defense and he has no obligation to assert any defense. He has no burden to prove any or prove his innocence, that's the State's burden. The Defendant, however, has argued that the State has failed to prove the charges beyond a reasonable doubt.
Defense counsel then expressed satisfaction with the instruction. However, on appeal, defendant argues that the misstatement in the first correction amounted to a "directed verdict."
We disagree. Taken in context, the judge's corrective statement referred to the affirmative defense, not the general denial of guilt. However, it certainly would have been preferable for the judge to say that defendant "has asserted no affirmative defense," as opposed to saying defendant "has asserted no defense." In any event, the judge cured any possible confusion in his second corrective instruction. We presume the jury understood and followed the court's instruction. See State v. Miller, 205 N.J. 109, 126 (2011). No further discussion is warranted. R. 2:11-3(e)(2).
III.
Finally, we reject defendant's challenge to his sentence. Our review of the trial court's sentence is limited. Miller, supra, 205 N.J. at 127. We assess whether the court's application of aggravating and mitigating factors was adequately supported by the record, and whether the court followed the statutory sentencing guidelines. Ibid.; State v. Cassady, 198 N.J. 165, 180-81 (2009).
With one exception noted below, we are satisfied the court did so in this case. There was sufficient support in the record, noted by the trial judge, for his finding of aggravating factors three — risk defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); six — his prior criminal record and the seriousness of the offenses of which he was convicted, N.J.S.A. 2C:44-1(a)(6); and nine — the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court cited defendant's extensive prior record, and his continuing criminal behavior despite probationary and custodial sentences. The court noted defendant's age — he was sixty-five — and his military service, but found no mitigating factors applied. The court's sentence of seven years, with a forty-two month parole ineligibility period, does not shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364 (1984).
We are nonetheless constrained to remand for reconsideration of the sentence because the court also applied aggravating factor eleven — imposing a non-custodial sentence with a monetary sanction "would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices." N.J.S.A. 2C:44-1(a)(11). As defendant was convicted of a second-degree offense, to which a presumption of incarceration applied, it was inappropriate to consider aggravating factor eleven. State v. Dalziel, 182 N.J. 494, 502-03 (2005). Consequently, we remand to the trial court for reconsideration of the sentence without application of aggravating factor eleven.
Defendant's remaining arguments regarding his sentence lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed as to conviction. Remanded for reconsideration of sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION