Opinion
DOCKET NO. A-2273-10T2
06-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NICHOLAS DORCH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0409.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Nicholas Dorch guilty of conspiracy to commit second-degree possession of a controlled dangerous substance (CDS), specifically cocaine, N.J.S.A. 2C:5-2, 2C:35- 10a(1); two counts of third-degree possession of a CDS, one for cocaine and one for heroin, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of a CDS with intent to distribute, one for cocaine and one for heroin, N.J.S.A. 2C:35-5a(1); two counts of third-degree possession of a CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, one for cocaine and one for heroin; and two counts of second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, one for cocaine and one for heroin. He was sentenced to eight years with four years of parole ineligibility.
At approximately 10:35 p.m. on an October evening in 2008, Detectives Ras Sheppard and Youletta Rainey, along with other officers of the Newark Police Department, were conducting a surveillance near 478 South 16th Street. The area in question is within 500 feet of a public housing project and 1000 feet of a public school. They saw a man wearing headphones approach Paul Johnson, a co-defendant tried with defendant. Johnson was on the porch of a residence, and he appeared to be counting money. The two men spoke briefly and gestured during that conversation, but neither detective heard what they said. They did, however, see defendant pacing in front of the porch. When the conversation ended, defendant walked to an alley two doors away, moved a broken door that was leaning against a wall away from the building, reached behind the door and retrieved something. Defendant than walked back and handed the man with the headphones some "items." The detectives did not see what the items were, but they saw the man with the headphones leave after receiving them.
After moving the unmarked car to a different location, the detectives returned and arrested defendant and Johnson. Detective Rainey went to the alley and moved the broken door, exposing a bag that contained six white paper folds and forty plastic Ziplock bags containing cocaine. The bags had various "stamps" on them: twenty-one brown Hershey Kisses, thirteen red diamonds, and six yellow and black Batman symbols. Three glass vials with yellow caps were also recovered along with fifty-two glassine envelopes, two of which were stamped "Plainfield" and "Green Heat." The other fifty envelopes also bore stamps — "Purple Mother[]" and "Purple." The contents of the envelopes were field tested and found positive for heroin.
Defendant and Johnson were also searched. Defendant had $540: one $100 bill, two $50 bills, and seventeen $20 bills. Johnson had $608: thirty $20 bills, one $5 bill, and three $1 bills.
Defendant raises the following points for our consideration on appeal:
I. DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER LAY OPINION. (Not Raised Below).We affirm defendant's convictions but remand for the limited purpose of correcting the parole ineligibility term.
II. THE TESTIMONY REGARDING THE AMOUNT OF MONEY SEIZED FROM THE DEFENDANTS WAS IMPROPERLY ADMITTED.
III. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.
IV. THE PROSECUTOR'S COMMENTS IN HIS SUMMATION CONSTITUTED MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).
V. THE FOUR YEAR PERIOD OF PAROLE INELIGIBILITY IMPOSED ON DEFENDANT EXCEEDS THE MAXIMUM TERM SET FORTH IN N.J.S.A. 2C:35-7.
Defendant's objection to the admission of lay opinion testimony is based on brief passages of the testimony given by Detectives Sheppard and Rainey. Detective Sheppard was asked about the man with the headphones, and he explained that the officers did not follow him right away because they "didn't want to lose focus on the distributor, the person that . . . was actually selling the narcotics." When Detective Rainey was asked to describe what the man with the headphones did, she said "he bought drugs from Nicholas Dorch and Paul Johnson." Although neither detective had testified to hearing the conversation between Johnson and the man with headphones or seeing what "items" defendant retrieved from behind the door and handed to him, defense counsel did not object to these brief and unsolicited responses to the prosecutor's questions. Thus, our review is for plain error. R. 2:10-2.
Had there been an objection, the judge undoubtedly would have stricken the testimony and directed the jurors to disregard it. The State had not established a foundation — personal knowledge — essential to allow the detectives to give this testimony as fact witnesses. N.J.R.E. 602. The detectives were merely stating the conclusions they drew, lay opinions, based on what they had observed.
The question whether the events the detectives observed established a drug transaction was not a proper subject for lay opinion testimony. N.J.R.E. 701. Where the significance of a series of events "does not fall outside the ken of the jury," police officers may not state their opinion on what they observed. State v. McLean, 205 N.J. 438, 461 (2011). Without court approval to testify as an expert, police officers, like other lay witnesses, should be instructed to limit their testimony to matters about which they have personal knowledge.
Although the testimony was improper, its admission does not warrant reversal of defendant's conviction. In McLean, the Supreme Court focused on the impropriety of having an officer "opine on guilt." Ibid. Here, defendant and Johnson were not charged with any crime based on what the man with headphones received from defendant or any transaction between them. The charges were based on their possession of the drugs found in the alley. The evidence of the co-defendants' separate but coordinated interaction with that man was offered as tending to prove their possession of and intention with respect to those drugs. Both detectives made what they had and had not seen clear. They informed the jurors that they had not heard the initial conversation, not seen what defendant removed from behind the door and did not know what defendant handed the man when he returned from the alley. Thus, the inadmissible lay opinion testimony was incapable of suggesting either that the detectives' opinions about defendant's and Johnson's actions were based on something the detectives knew but did not disclose to the jurors, or that the opinions were based on something inconsistent with the evidence presented. Cf. State v. Frisby, 174 N.J. 583, 593 (2002) (where inadmissible testimony suggested facts that were inconsistent with what the officers knew). Given the persuasiveness of the evidence of guilt, we are confident that this testimony was not capable of leading the jury to reach a result it would not have reached without this testimony. State v. Marshall, 123 N.J. 1, 125 (1991). The improper testimony was brief and given in passing. In contrast, the properly admitted testimony tending to establish possession and intent was strong. Moreover, because there was no objection from defense counsel, we can assume the attorneys for both defendants determined that any prejudice was insignificant. Id. at 104. Accordingly, reversal on this ground is not warranted. R. 2:10-2.
The argument defendant presents in the second point of his brief does not require extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant's objection to the admission of testimony about the money the detectives recovered from him and Johnson is based on the fact that Detective Rainey was permitted to testify about the money on re-direct. The assistant prosecutor did not elicit this testimony when questioning the detective on direct, and defense counsel did not elicit any testimony about the money or raise a question that put it in issue on cross-examination.
Defendant is correct in asserting that the basic purpose of re-direct is to provide an opportunity "to respond to new material elicited during cross-examination of a witness." Brambley v. McGrath, 347 N.J. Super. 1, 9 (App. Div. 2002). Nevertheless, a trial court has discretion in exercising its obligation to exert "reasonable control over the mode and order of interrogating witnesses and presenting evidence . . . ." N.J.R.E. 611(a). We have held that it is not an abuse of discretion for a court to permit a party to recall a witness to correct testimony. Schwartau v. Miesmer, 50 N.J. Super. 399, 413 (App. Div. 1958). Here, the prosecutor's obvious purpose in eliciting this testimony on re-direct was to question the detective about a matter that was neglected on direct. There is no basis for concluding that the prosecutor delayed the testimony to surprise the defense or gain some unfair advantage because the money seized was disclosed in police records provided to the defense in discovery. Additionally, defendant was afforded an opportunity to re-cross on the matter and was not put in a position that differed in any way from the position he would have been in if the testimony had been presented on direct. In these circumstances, even if we were to conclude that the judge mistakenly exercised his discretion to allow the re-direct, we could not conclude that the error had any capacity to lead to an unjust result. R. 2:10-2.
In Point III, defendant contends that the State's evidence was inadequate to support his convictions and the judge erred in denying his motion for a judgment of acquittal. R. 3:18-1. The State's evidence in a criminal case is adequate to support a verdict if, viewed in the light most favorable to the State and giving the State the benefit of all favorable inferences, it permits a reasonable jury to find defendant guilty of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The detectives testified to events that occurred in a school zone and in a public housing zone. Their testimony about defendant going to the alley, moving the door and retrieving something that he then gave to the man with the headphones, coupled with the evidence that they found behind the door in the alley — a bag stocked with a variety of cocaine and heroin — was sufficient to permit the jury to find defendant's guilt of the crimes charged beyond a reasonable doubt.
In Point IV, defendant raises several objections to the prosecutor's closing argument. Specifically, he objects to what he perceives as a reference to defense counsel's opening. He relies on this statement: "[t]he counsel Mr. Saluti, did - the defendant do [sic] not have, you know, any type of burden in this case, but there was a promise made about an attorney and you're supposed - in the opening you're supposed to disregard that." Assuming, as defendant contends, that the prosecutor was alluding to the fact that defense counsel mentioned a witness for the defense who was not produced at trial, the reference made in summation is far too vague and incomprehensible to be viewed as inviting the jurors to draw a negative inference based on defense counsel's "promise." This complaint about the State's summation does not warrant further discussion. R. 2:11-3(e)(2).
Defendant's additional objections are based on statements of the prosecutor that he contends are not supported by the record. Without question, "[p]rosecutors should not make inaccurate legal or factual assertions during a trial. They are duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Frost, 158 N.J. 76, 85 (1999) (internal citation omitted).
Here, the prosecutor came close to but did not cross the line separating permissible and impermissible argument when he asserted that there had been an "exchange." There was an exchange of words between the man with the headphones and Johnson. Furthermore, that verbal "exchange" was followed by defendant going to the alley, moving the door that concealed a bag of drugs and returning to give something to the man with the headphones. Thus, the argument was consistent with the testimony and not improper.
We agree with defendant that the prosecutor erred when he said that defendant was seen reaching into the bag behind the door. The testimony was that defendant was seen reaching behind the door, the place where the bag was subsequently discovered. There was no direct evidence that defendant touched the bag. The prosecutor should have argued this point to urge the jurors to draw the inference instead of asserting the fact to be inferred as if it were a fact directly established by the testimony. Although the prosecutor erred, there is no question that the inference was available from the evidence. Reversal of a defendant's conviction on an improper closing argument is inappropriate unless "the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Id. at 83. In our view, this misstatement did not have that capacity. First, defense counsel did not object to the statement, and such silence "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. Second, because the judge directed the jurors that their recollection of the evidence controlled, and there is no evidence that they did not follow that direction, we must assume that they acted in conformity with the direction. State v. Martini, 187 N.J. 469, 477 (2006). Third, while the prosecutor's statement was inaccurate, it was neither inflammatory nor otherwise of a sort likely to mislead or distract the jurors from an impartial consideration and fair evaluation of the evidence in accordance with the law. State v. Harris, 181 N.J. 391, 495 (2004)
Although there is no error that warrants reversal of defendant's conviction, his sentence includes parole ineligibility terms that are illegal. Indeed, the State concedes that the four-year parole ineligibility terms imposed must be reduced to three years.
The illegality is clear. Defendant was convicted of two counts of third-degree possession with intent to distribute, N.J.S.A. 2C:35-7, one for cocaine and one for heroin, and two counts of second-degree possession with intent to distribute in a public housing zone, N.J.S.A. 2C:35-7.1, one for cocaine and one for heroin. The judge properly merged the related public-housing-zone and school-zone convictions and properly determined that the mandatory parole ineligibility term for each third-degree school zone-conviction survived its merger with the second-degree crime. State v. Dillihay, 127 N.J. 42, 45 (1992). He imposed concurrent sentences of eight years for the public housing offense with four years of parole ineligibility terms based on the school-zone convictions that survived merger.
The judge did not err in imposing an eight-year term of imprisonment for each of defendant's public-housing-zone convictions, but he did err by concluding that a four-year parole ineligibility term was mandated for defendant's third-degree school-zone convictions. The parole ineligibility term a court is required to impose for a school-zone conviction is three years or a term between one-half and one-third of the sentence imposed, whichever is greater. N.J.S.A. 2C:35-7a; cf. L. 2009, c. 192, §2 (authorizing, effective January 12, 2010, a reduction in the interests of justice). As the maximum sentence for a third-degree offense is five years, N.J.S.A. 2C:43-6a(3), the mandatory parole ineligibility term for a third-degree school-zone offense cannot be greater than three years. Thus, the mandatory parole ineligibility terms imposed must be reduced to three years.
Defendant's convictions are affirmed and the matter is remanded for reduction of the parole ineligibility term.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION