Opinion
DOCKET NO. A-5908-12T4
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE MOODY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-05-0495. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
Tried by a jury, defendant Lawrence Moody was convicted of third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); and third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and 2C:35-5(a) (count three). On December 6, 2012, the court sentenced defendant to a mandatory extended term as a second-time drug distributor, N.J.S.A. 2C:43-6(f), and merged counts one and two into count three. A sentence of ten years imprisonment with five years of parole ineligibility was imposed, as were appropriate fines and penalties. Defendant appeals and we affirm.
I.
Our review of the trial record establishes the following. On December 21, 2009, Paterson Police Detective Brandon Stapleton and Officer James Miyasato, while in separate unmarked vehicles, set up surveillance in front of an apartment building located approximately a block away from a public school. Stapleton saw defendant, who had been seated in a silver Ford Taurus station wagon, leave his vehicle when a man approached the entrance of the apartment building at approximately 9:44 p.m. The two men had a brief conversation, and the man handed defendant what appeared to be "green paper money." Defendant entered the apartment building, returned approximately a minute later, and handed the man an object which Stapleton testified he suspected were narcotics. Defendant returned to the parked vehicle. Stapleton notified Miyasato to detain the "suspected customer[,]" however, Miyasato was unable to locate him.
Shortly thereafter, defendant emerged from his car and walked towards a woman who approached the building entrance. They exchanged a few words, and the woman gave defendant "what appeared to be green paper currency[.]" When defendant entered the building, Stapleton alerted Miyasato that he "observed what [he] believed to be the beginning of a narcotics transaction[.]" Stapleton directed Miyasato to attempt to locate defendant.
When Miyasato entered the building, he found defendant in the process of closing a mailbox with a key. Miyasato saw numerous bundles of glassine envelopes inside, which he retrieved. The drugs were later determined to be heroin.
Detective Marvin Sykes testified as the State's expert in the field of "narcotics-related law enforcement." Sykes described the manner of packaging of heroin for street-level distribution, the quantity of drugs normally associated with distribution contrasted with personal use, and said:
Well, normally a dealer will be in an area standing around, sitting around; and a possible buyer would walk up to him, make the eye contact or words will be exchanged.
And the dealer normally would go -- and most of the guys in the street today don't hold the drugs on them, they're usually stashing it in locations because they don't want to get caught with the drug in their
pocket. They'll stash it, you know, in an area where they're close to it, where they're not too far, and they'll actually go retrieve whatever they're going to serve up to the customer and then they'll make the exchange, exchanging the small item for paper currency.
Then the buyer is normally on their way and the suspected dealer is standing -- still remaining in the area waiting on the next buyer.
When asked to describe some stash locations, Sykes said he had in the past found drugs hidden in potato chip bags or brown paper bags in corners in buildings, in magnetic key cases on the inside of an elevator door, and in mailboxes.
In sentencing defendant, the judge described his prior criminal record as "atrocious." Defendant committed new offenses while on probation and parole and had at least three prior convictions for drug distribution. Hence the judge found aggravating factor three, the risk defendant would reoffend, N.J.S.A. 2C:44-1(a)(3); six, his prior criminal history, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(9).
On appeal, defendant raises the following points:
POINT I
STAPLETON'S OPINION TESTIMONY OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN, 205 N.J. 438 (2011), WHEN HE TESTIFIED THAT HE OBSERVED MOODY ENGAGE IN TWO NARCOTICS TRANSACTIONS. ADDITIONALLY, THE FAILURE TO ISSUE A N.J.R.E. 404(B) LIMITING INSTRUCTION
WITH RESPECT TO THE UNCHARGED TRANSACTIONS, WHICH WERE PROMINENTLY FEATURED IN THE STATE'S CASE, CONSTITUTES PLAIN ERROR. (Not Raised Below).
A. Stapleton's Opinion Testimony Overstepped the Boundaries of McLean When He Testified that He Observed Moody Engage in Two Narcotics Transactions.
B. The Failure to Issue a N.J.R.E. 404(b) Limiting Instruction With Respect to the Uncharged Transactions Constitutes Plain Error.
POINT II
THE STATE PRESENTED HIGHLY IMPERMISSIBLE EXPERT TESTIMONY THAT INFRINGED UPON THE JURY'S FACT-FINDING FUNCTION, AND DENIED MOODY A FAIR TRIAL, NECESSITATING REVERSAL (U.S. CONST., AMEND. VI; N.J. CONST., ART. 1, ¶ 9). (Not Raised Below).
POINT III
MOODY'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
A.
Defendant contends that both Stapleton and Sykes's testimony denied him a fair trial. Neither was objected to at trial; our review is therefore guided by the plain error rule. See State v. Miraballes, 392 N.J. Super. 342, 360 (App. Div.), certif. denied, 192 N.J. 75 (2007). Any error will be disregarded unless "clearly capable of producing an unjust result." R. 2:10-2.
B.
Defendant contends that Stapleton's testimony describing his observations exceeded the bounds of McLean, which held that police officers testifying as lay witnesses must limit their testimony to factual recitations. Supra, 205 N.J. at 461. Defendant's specific objection is directed at Stapleton's testimony about watching defendant hand the first person, after being given currency, an item which Stapleton "suspected to be narcotics." He also objects to Stapleton saying that he saw "the beginning of a [second] narcotics transaction[,]" when defendant was approached by a second individual who also handed him currency.
Had defendant been charged with those transactions, McLean might weigh more heavily in our analysis. But defendant was charged with possession with intent based on his arrest while unlocking a mailbox that held forty-nine glassine envelopes of heroin. And the State's expert, Sykes, testified that the quantity and location of the drugs were not consistent with personal use. Moreover, the State was entitled to explain the reason Stapleton would have instructed Miyasato to detain defendant at that particular moment. Under these circumstances, Stapleton's testimony was unobjectionable. Stapleton's testimony was not prejudicial; the proofs were overwhelming. The alleged error was not clearly capable of producing an unjust result, nor would it have led the jury to a verdict it might not otherwise have reached. See State v. Sowell, 213 N.J. 89, 107-08 (2013).
Defendant also contends that as a result of Stapleton's testimony, the court should have given the jury a limiting instruction pursuant to N.J.R.E. 404(b). That rule provides: "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b).
In State v. Rose, 206 N.J. 141, 179 (2011), the Supreme Court instructed "[t]he threshold determination under [N.J.R.E.] 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under [N.J.R.E.] 404(b)[using the Cofield framework], or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly [N.J.R.E.] 403." See also State v. Sheppard, 437 N.J. Super. 171, 193 (App. Div. 2014), certif. denied, 221 N.J. 219 (2015).
N.J.R.E. 401 defines relevant evidence as evidence that has a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 403 excludes relevant evidence when "its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" "Evidence claimed to be unduly prejudicial is excluded only when its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." State v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015) (alteration in original) (quoting State v. Long, 173 N.J. 138, 163-64 (2002)).
The Court in Rose further explained that "evidence that is intrinsic to the charged crime is exempt from the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under [N.J.R.E.] 404(b) because it is not 'evidence of other crimes, wrongs, or acts.'" Rose, supra, 206 N.J. at 177-78 (emphasis omitted). Intrinsic evidence includes evidence that directly proves, or has probative value to, the charged offense. Brockington, supra, 439 N.J. Super. at 327-328 (quoting Rose, supra, 206 N.J. at 180).
In Brockington, officers observed defendant engage in six encounters with "suspected buyers." Id. at 316. In each encounter, defendant would have a conversation with the person, and take money before disappearing with him or her down a driveway. Ibid. None of the transactions resulted in an arrest or seizure of drugs. Id. at 316-17. We held that the officer's testimony about the six uncharged drug transactions was intrinsic evidence as defined in Rose and, therefore, did not require N.J.R.E. 404(b) instructions. Id. at 315-16, 328. Specifically, the observations "directly prove[d]" the charged offenses, including possession and possession with intent to distribute. Id. at 315, 328. Therefore, it was subject only to a N.J.R.E. 403 analysis. See Rose, supra, 206 N.J. at 177-78.
We found that the testimony was "clearly relevant to material facts at issue in the determination of defendant's guilt on the charged offenses" and was not inherently inflammatory since "[t]he actions merely mirrored the conduct that was the basis of the charges." Brockington, supra, 439 N.J. Super. at 333.
Stapleton's testimony regarding the two other persons who handed defendant currency was "intrinsic" since the conduct proved the charged offenses of possession with intent to distribute. Accordingly, it was relevant under N.J.R.E. 401, and as in Brockington, it "merely mirrored the conduct that was the basis of the charges." Therefore, there was no error in omitting a limiting instruction pursuant to N.J.R.E. 404(b).
C.
Defendant also argues that Sykes's testimony was prejudicial. He contends that Sykes offered an opinion as to defendant's guilt, testified in a non-hypothetical manner, and otherwise usurped the role of the jury. He claims that some of the questions impermissibly incorporated the circumstances in this case, such as the explanations regarding the use of a stash location, and the fact that typically money is exchanged before drugs are handed to the buyer. In responding to the prosecutor's question regarding drug stashes, Sykes mentioned mailboxes along with other locations such as potato chip bags or brown bags discarded on the floor. Based on his earlier testimony contrasting the packaging and quantity for distribution versus personal use, Sykes also identified the narcotics as being suspected heroin packaged for distribution as there was "close to a brick" of "multiple [stamped] glassines" that were bound together.
Certainly, an expert may offer an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. It is undisputed, however, that expert testimony which communicates to the jury that which is obvious "usurp[s] the jury's sole responsibility to find the facts." Sowell, supra, 213 N.J. at 102. Expert testimony in criminal trials is helpful in order to aid jurors in understanding the difference between drugs possessed for distribution as opposed to personal use. Id. at 100. Under N.J.R.E. 703, no error occurs if an expert bases an opinion on facts perceived or made known to them during or before a trial.
Experts may not opine directly on a defendant's guilt. Sowell, supra, 213 N.J. at 103 (quoting State v. Odom, 116 N.J. 65, 79 (1989)). But general observations of an expert may mirror the underlying facts of a case. Id. at 94, 96. In Sowell, where the defendant was charged while incarcerated, the expert testified about the uncommon occurrence that a user, rather than a seller, would have "thirty envelopes" of heroin in prison. Id. at 96. In that case, the actual quantity recovered was "thirty glassine envelopes." Id. at 94.
Therefore, that some of the circumstances were included in Sykes's descriptions did not make the testimony a basis for reversal or unduly prejudicial. None of Sykes's testimony, given the state of the proofs in the case by that stage of the trial, was so prejudicial as to have affected the outcome. Even if there was error in Sykes's testimony, the error was not "clearly capable of producing an unjust result." See id. at 107-08.
II.
Finally, defendant challenges his sentence as excessive. We affirm sentences unless (1) the sentencing guidelines were not followed; (2) "the aggravating and mitigating factors found by the sentencing [judge] were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The sentencing court must also "state . . . the factual basis supporting a finding of [a] particular . . . factor[]" and "describe the balancing process leading to the sentence." R. 3:21-4(g); State v. Kruse, 105 N.J. 354, 359-60 (1987).
Pursuant to N.J.S.A. 2C:43-6(f), upon the prosecutor's application, the court was required to sentence defendant to an extended term as a prior drug distributor. See State v. Simon, 421 N.J. Super. 547, 558 (App. Div. 2011). The only determination a judge is required to make in deciding such an application is whether a defendant's prior criminal history warrants extended-term sentencing, a finding not challenged here. See State v. Thomas, 188 N.J. 137, 150 (2006). The judge is then obligated to determine the length of imprisonment within the extended term range based on weighing aggravating and mitigating factors. Id. at 154.
In this case, defendant's numerous prior convictions warranted the weight accorded to aggravating factors three and six. Unlike the more typical case, in this situation, it was clear that aggravating factor nine, individual deterrence, was also a significant factor. No prior sentence had kept defendant from re-offending. Not only were the sentencing guidelines followed, the aggravating factors were based upon competent and credible evidence in the record, there were no mitigating factors, and the application of the sentencing guidelines to the facts was a reasonable exercise of judicial discretion. It does not shock our conscience.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Cofield, 127 N.J. 328, 338 (1992), provided the four factors to be analyzed in considering the admission of "extrinsic evidence of other crimes or wrongs" under N.J.R.E. 404(b).