Opinion
DOCKET NO. A-1511-14T2
12-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FELIX B. ABREU, a/k/a FRANKLIN GUZMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-04-0436. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Felix B. Abreu was arrested in Paterson on December 13, 1994. He was thereafter charged in Passaic County Indictment No. 95-04-0436 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession with intent to distribute cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Five).
Co-defendant Michael Murphy was charged in Counts Six and Seven with possessing cocaine that he allegedly purchased from defendant. The record indicates that Murphy's charges were resolved by way of a plea agreement in July 1995 and they are not the subject of the present appeal.
Defendant appeared for the first day of his April 1997 trial and then absconded. In defendant's absence, the jury convicted him of all charges. He remained a fugitive until 2014. On March 7, 2014, the court merged Counts One through Four into Count Five and sentenced defendant to a five-year prison term with a three-year parole ineligibility period.
According to the presentence report, defendant had previously failed to appear for trial on October 2, 1995. A warrant for his arrest was later executed on August 9, 1996. Bail was set at $25,000, which defendant posted on October 11, 1996.
At the time of defendant's conviction, State v. Odom, 116 N.J. 65 (1989), permitted an expert witness in a drug-distribution case to testify to the ultimate issue of fact, and therefore opine whether a defendant possessed drugs with the intent to distribute them. Accordingly, at defendant's trial, the State presented an expert witness who rendered such an opinion in response to a hypothetical question from the prosecutor that mirrored the facts of the case. While this appeal was pending, in State v. Cain, 224 N.J. 410 (2016), the Supreme Court abrogated its holding in Odom. Defendant now argues, for the first time on appeal, that admission of the expert testimony was plain error. He also raises several challenges to his sentence. For the reasons that follow, we affirm defendant's convictions. However, we remand for resentencing.
I.
On December 13, 1994, members of the Paterson Police Department's narcotics unit were conducting an investigation of drug trafficking in the area of 13 Park Avenue. At approximately 3:00 p.m., Detective Steven Olimpio parked his unmarked car about a half-block away and began conducting surveillance. Within five minutes, Olimpio observed Murphy approach 13 Park Avenue and engage in a short conversation with a Hispanic male who was later identified as defendant. Olimpio saw Murphy "hand paper money to [defendant] who then took the money and handed [] Murphy several small objects that he retrieved from a small black box that he removed from his jacket pocket. [] Murphy then looked at the small objects, put them in his left jacket pocket and left the area . . . ."
Believing he had just witnessed a hand-to-hand drug transaction, Olimpio called for backup officers and gave them Murphy's description. The officers stopped Murphy and searched his jacket pocket, where they discovered "twelve small plastic baggies containing a white rock-like substance, suspected crack cocaine." Murphy was placed under arrest and taken to police headquarters.
Defendant left the area for approximately twenty minutes. Olimpio then saw him return and approach a Chinese restaurant at 11 1/2 Park Avenue. Defendant took out the same small black box that Olimpio had previously observed and placed it inside the metal track of a window outside the restaurant where it was not visible from the street. Defendant then walked back to 13 Park Avenue, where he stood on the sidewalk just "hanging around" in front of a store.
Olimpio again summoned backup officers who responded and placed defendant under arrest. Olimpio directed Detective Michael Boyle to the metal window track, where Boyle recovered a magnetic case containing eighteen small plastic baggies of crack cocaine. No other evidence was found during a search of defendant's person. At police headquarters, Olimpio positively identified defendant and Murphy as the individuals involved in the transaction he had witnessed.
The twelve plastic baggies containing crack cocaine recovered from Murphy were marked in evidence and displayed for the jury, as were the eighteen baggies and the magnetic metal container found attached to the window track of the Chinese restaurant. Olimpio testified that the twelve baggies found on Murphy were "[v]ery similar and very identical" to the eighteen baggies in the metal box that defendant was seen hiding in the window track. A certified laboratory report introduced in evidence revealed that the cocaine found on Murphy weighed 1.57 grams, while the cocaine in the metal box weighed 2.73 grams. Olimpio also identified a map that showed the Park Avenue location was within 1000 feet of School No. 11, which was "an operating school at the time."
Olimpio next described his substantial education, training and experience in drug trafficking, which included making "[w]ell over ten thousand" narcotics arrests. At the State's request, and without objection, Olimpio was then qualified as an expert in the area of narcotics. The court immediately instructed the jury about the proper use of the expert testimony, and repeated that instruction in its final charge. Olimpio went on to describe for the jury: the different methods by which drugs are sold on the street, the most "basic" of which is the "hand[-]to[-]hand transaction;" what the term "stash" means, and how dealers take steps to secrete their drugs and money; the manner in which crack cocaine is typically packaged for sale; and how much a baggie of cocaine would normally sell for and the fact that it was usually paid for in cash.
Olimpio testified that he had qualified as an expert in Superior Court on at least ten previous occasions.
On direct examination, the prosecutor posed a hypothetical question and asked Olimpio to render an expert opinion, as follows:
Q. Detective, I'd like to ask that you assume the following facts as true. Assume that two individuals had been observed having a short conversation . . . in a location in Paterson. Assume that individual A takes small items from a small black box. Assume that individual B then takes those small items from individual A. Also please assume as true that individual B in turn hands cash to A. Assume that several minutes later individual B is arrested and it's found that he has twelve baggies of crack cocaine in his possession in his pockets.
Assume that the other individual, A, leaves the area where this happened for about twenty minutes and then returns. Also assume as true that individual A has again a little black box and he places it . . . behind a metal track so that it can't be observed from the front. Also assume that that individual is then stopped, individual A, and law enforcement arrives on the scene and finds
that that black box which was behind that post contains eighteen small bags of crack cocaine.
. . . .
Detective, do you have an opinion with respect to what that individual's intent would be with respect to those eighteen bags of crack cocaine?
. . . .
A. The alleged drug dealer, which is A, meets up with the alleged drug buyer, which is B, a conversation [] ensued, money is exchanged for a small object. B walks away. A also walks away. B is stopped . . . . [R]ecovered from B is some crack cocaine. B is then arrested. A comes back, puts a small object into a stash location, the stash location is recovered, more crack cocaine is recovered from that, it matches A and B. A is the seller and B is the buyer.
Q. Let's add to those facts. Let's assume that individual A is arrested and is not found with any drugs on his person physically, does that change your opinion with respect to his intent?
A. No.
Q. And why not?
A. Because A still had the crack on him. He puts it away in a stash so he doesn't get recovered with it on his person just like the money. They don't keep the money in their pockets, they stash it away because they know if they are stopped and they are arrested, they lose the money. They know that.
Upon considering these proofs, the jury found defendant guilty of all five charges. As noted, defendant appeared for jury selection and opening statements on the first day of the trial and failed to appear thereafter, resulting in the issuance of a bench warrant for his arrest. Although not entirely clear from the record, he apparently fled to the Dominican Republic, where his wife and children presently reside. Defendant was apprehended in January 2014, and sentenced two months later. The present appeal followed.
In his counseled brief, defendant raises the following issues for our consideration:
POINT I
THE STATE'S INTRODUCTION OF DETECTIVE OLIMPIO'S EXPERT TESTIMONY TAINTED MR. ABREU'S TRIAL, AND THEREFORE, WARRANTS REVERSAL. (Not Raised Below)
A. The Improper Introduction of Expert Testimony in This Straightforward Case Was Both Unnecessary and Highly Prejudicial to the Defense
B. The State Impermissibly Introduced Expert Testimony that Overstepped the Boundaries of Odom and its Progeny, Because its Expert Served the Dual Roles of Investigating Officer and Expert Witness, Referred to [] Defendant by Name as the Person Who Was Distributing Drugs, and Offered His Expert Opinion in the Guise of a So-Called "Hypothetical" Question
C. The Cumulative Effect of the Highly Improper Expert Testimony Constitutes Plain Error
POINT II
IN THE ALTERNATIVE, THE MATTER SHOULD BE REMANDED FOR RESENTENCING
A. The Sentencing Judge Erroneously Believed that He Was Not Permitted to Impose a Sentence Lower Than Five Years of Imprisonment With a Three-Year Parole Disqualifier
B. The Sentencing Court Neglected to Consider Mitigating Factor Eleven
C. The Sentencing Court Erred in Ordering Mr. Abreu to Pay Financial Penalties on Merged Offenses
Defendant raises two similar arguments in his pro se supplemental brief:
DETECTIVE OLIMPIO'S EXPERT TESTIMONY REGARDING A DRUG TRANSACTION WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR, AND THIS SO-CALLED EXPERT TESTIMONY DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ERRED WHEN IT DID NOT CONSIDER ANY MITIGATING FACTORS IN CONSIDERATION OF THE SENTENCE IMPOSED PURSUANT TO [N.J.S.A.] 2C:44-1(f)(1).
II.
For the first time on appeal, defendant challenges the introduction of Detective Olimpio's expert testimony. Specifically, he argues that expert testimony was unnecessary to explain a straightforward hand-to-hand drug transaction, and that the opinion testimony violated the ground rules for admission established in Odom and its progeny.
Defendant did not object to this testimony at the time of trial and, therefore, we will not reverse on this ground unless the error was "clearly capable of producing an unjust result[.]" R. 2:10-2. A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971).
Defense counsel did initially assert some preliminary objections to the form and substance of the hypothetical question as originally posed. Ultimately, however, no objection was posed to the final form of the question and answer, nor did defense counsel object to the remainder of Olimpio's expert testimony.
A.
In the seminal case of Odom, a police officer who was qualified as an expert in illegal narcotics opined that the possession of eighteen vials of crack cocaine indicated an intent to distribute it. Odom, supra, 116 N.J. at 68-69. The Court held that the officer's opinion was admissible because it fell within his specialized knowledge, and it assisted the jury in appreciating the significance of the quantity, street value, and packaging of the drugs and whether their possession was indicative of personal use or distribution, which an average person could not understand. Moreover, because the officer's opinion did not express whether defendant was guilty, but simply characterized the intended purpose of the possession in light of the evidence, it was not objectionable even though it embraced the ultimate issue of defendant's guilt that was for the jury to decide. Id. at 78-81.
The Court in Odom went on to establish parameters for the admission of such expert opinion testimony. The Court cautioned that the opinion be offered in response to a "hypothetical question [that] should clearly indicate that it is the witness' opinion that is being sought and that that opinion was formed assuming the facts and circumstances adduced only at trial." Id. at 82. Additionally, the expert's opinion must ordinarily "avoid the precise terminology of the statute defining the criminal offense and its necessary elements." Ibid. "Further, the defendant's name should not be used." Ibid. "Finally, the trial court should carefully instruct the jury on the weight to be accorded to and the assessment of expert opinion testimony. It should be emphasized that the determination of ultimate guilt or innocence is to be made only by the jury." Ibid.
We note that, under the facts presented in Odom, the Court found the use of defendant's name in the hypothetical was harmless error. Id. at 83.
Recently, the Court "revisit[ed] whether such ultimate-issue expert testimony is appropriate in a drug-distribution case." Cain, supra, 224 N.J. at 413. The Court was prompted by its concern that "Odom's approval of expert testimony on the state of mind of a defendant in drug cases [] has spawned lengthy and intricate hypothetical questions that have the appearance of a prosecutorial summation." Ibid.
The Court noted that, seventeen years after Odom was decided, it had "followed the directives of Odom" when it again allowed expert testimony that distinguished between possession and distribution, and upheld the defendant's conviction of multiple drug offenses, in State v. Summers, 176 N.J. 306, 312-17 (2003). Cain, supra, 224 N.J. at 422-23. However, "[a]fter Summers, in a series of cases, [the] Court slowly retreated from some of the broader implications of Odom." Id. at 423.
The Court then traced the evolution of Odom, beginning with State v. Nesbitt, 185 N.J. 504, 514 (2006), where it found the admission of the expert testimony did not constitute plain error and accordingly it affirmed defendant's conviction. However, it had "disapproved of a hypothetical question that led the police expert to answer that B (the hypothetical's substitute for the defendant's name) 'was complicit in distributing drugs.'" Cain, supra, 224 N.J. at 423 (citing Nesbitt, supra, 185 N.J. at 504, 507-10, 518). The Court had further cautioned that "an expert is not needed to state that which is obvious." Id. at 423-24 (citing Nesbitt, supra, 185 N.J. at 507).
The Court also pointed to its intervening pronouncements in State v. Reeds, 197 N.J. 280, 284-85 (2009), and State v. McLean, 205 N.J. 438, 463 (2011), where it had reversed the defendants' respective convictions based on the improper admission of opinion testimony. Cain, supra, 224 N.J. at 424-25. Finally, in State v. Sowell, 213 N.J. 89, 104 (2013), the Court had noted that certain aspects of the expert's testimony were proper, such as the value of the drugs involved, how they were packaged, and whether the thirty envelopes of heroin seized reflected distribution or personal use. Sowell, supra, 213 N.J. at 104. However, the hypothetical posed and the expert's responses were impermissible because there was nothing about the straightforward drug transaction an officer had witnessed that was beyond the ken of an average juror. Ibid. The Court nonetheless declined to find plain error warranting the reversal of Sowell's conviction "only because of the overwhelming evidence of defendant's guilt[.]" Id. at 107.
The Court in Cain concluded that various areas remain where a drug expert can provide "necessary insight into matters that are not commonly understood by the average juror, such as the significance of drug packaging and weight, scales and cutting agents, stash sites, the role of confederates, and other activities consistent with drug trafficking." Cain, supra, 224 N.J. at 413 (emphasis added). The Court found it "[e]qually clear that an expert should not express an opinion on matters that fall within the ken of the average juror or offer an opinion about the defendant's guilt." Id. at 426 (citing Nesbitt, supra, 185 N.J. at 512-14). Writing for the Court, Justice Albin explained:
As this case proves, despite our efforts in Nesbitt, Reeds, McLean, and Sowell to deter [] the misuse of expert testimony, the problem persists. Candor requires that we admit that the root of the problem is contradictory language in Odom.
We have come to the conclusion that an expert is no better qualified than a juror to determine the defendant's state of mind after the expert has given testimony on the peculiar characteristics of drug distribution that are beyond the juror's common understanding. In drug cases, such ultimate-issue testimony may be viewed as an expert's quasi-pronouncement of guilt that intrudes on the exclusive domain of the jury as factfinder and may result in impermissible bolstering of fact witnesses. The prejudice and potential confusion caused by such testimony substantially outweighs any probative value it may possess.
[Id. at 427-28.]
Consequently, the Court reversed defendant's convictions, and noted that, "[g]oing forward, in drug cases, an expert witness may not opine on the defendant's state of mind." Id. at 429. Recently, a panel of this court held that, "unless we are instructed to the contrary, the [Supreme] Court intended pipeline retroactivity to apply to the Cain decision." State v. Green, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 17).
B.
It is against this legal landscape that we review defendant's contentions that the introduction of Detective Olimpio's expert testimony warrants reversal of his convictions. Initially, we agree that, since its decision in Odom, the Supreme Court has held that expert opinion in narcotics prosecution cases is limited to relevant subjects that are beyond the understanding of the average juror. Odom, supra, 116 N.J. at 71. Thus, expert opinion is generally inadmissible if the alleged drug transaction occurred in a straightforward manner that the average juror can readily understand. McLean, supra, 205 N.J. at 452-53. Where factual testimony is sufficient to potentially enable the jury to draw the inference of distribution, further comment in the form of expert opinion is improper. Id. at 452.
Here, as Olimpio acknowledged, defendant and Murphy purportedly engaged in a "basic" hand-to-hand drug transaction in which illegal drugs were exchanged for cash. In many, if not most, such instances, expert testimony is not needed to educate the jury about what occurred. However, unlike the garden variety hand-to-hand transaction, no drugs or money were found on defendant when he was arrested and searched. This in turn might well have caused the jury to speculate or question the accuracy and reliability of Olimpio's observations and his subsequent identification of defendant at police headquarters as the individual who sold the drugs to Murphy in exchange for cash. As a result, Olimpio's expert testimony, which explained how the cocaine was packaged, and the steps drug dealers take to "stash" drugs and money to avoid discovery, was properly admitted. See Cain, supra, 224 N.J. at 426 ("Experts may [] provide insight . . . into the various machinations used by drug dealers to thwart detection[.]") (citing Nesbitt, supra, 185 N.J. at 515).
More troublesome is the expert testimony elicited from Olimpio in response to the State's hypothetical. As noted, Olimpio opined that "A is the dealer and B is the buyer," and the fact that no drugs were found on A when he was arrested did not change his opinion with respect to A's intent to distribute drugs. It is clear after Cain that the admission of Olimpio's opinion testimony was improper because it "encroached on the jury's exclusive domain as finder of fact." Id. at 414. This, however, does not end our analysis. Rather, we must determine whether Cain should apply retroactively so as to reverse defendant's convictions. As noted, in Green, the panel afforded retroactivity to cases similar to Cain that were pending on appeal. Green, supra, slip op. at 17. We do not necessarily join in this interpretation. Rather, the Court's statement in Cain that, "[g]oing forward, in drug cases, an expert witness may not opine on the defendant's state of mind," might equally suggest that it intended its ruling to apply only to future drug cases.
224 N.J. at 429. --------
In any event, we hold that, under the particular facts of the present case, it would be inappropriate to apply Cain retroactively to defendant's benefit and the State's resulting detriment. In Green, the panel examined the three factors identified in State v. Earls, 214 N.J. 564, 590 (2013), which are "to be evaluated when considering whether a holding should apply retroactively." Green, supra, slip op. at 15. The third such factor relates to "the effect a retroactive application would have on the administration of justice." Ibid. In endorsing pipeline retroactivity, the panel found "[t]here will be no unfair prejudice to the State in reversing cases pending appeal that involve improper hypothetical questions. We routinely remand cases for new trials where error has prevented defendants from receiving a fair trial." Id. at 17.
We reach a different conclusion here. Defendant's arrest took place in 1994, some twenty-two years ago. As a result, it is likely that the State's drug evidence and witnesses are no longer available, or that the memories of the witnesses have since faded given the substantial lapse of time. Cain, and the cases it built on, did not exist at the time of defendant's trial. Rather, Odom governed, and it remained good law at least through 2003, when the Court affirmed a conviction involving a hypothetical premised on facts substantially similar to those present here. See Summers, supra, 176 N.J. at 310-11. Moreover, the State clearly relied on Odom in fashioning and posing the hypothetical to Olimpio. The expert's opinion, and the trial court's instructions to the jury regarding the proper use of the expert testimony, fell squarely within Odom's parameters. Had defendant not absconded, and appealed his convictions in the normal course, it is highly doubtful that his convictions would have been set aside on the basis of this opinion testimony.
Simply stated, it strikes us as anomalous that a defendant can thumb his nose at the judicial system, disappear for almost seventeen years, and then seek to take advantage of developments in the law in the interim. Defendant should not be able to benefit by his flight.
We draw guidance from State v. Bishop, 350 N.J. Super. 335 (App. Div.), certif. denied, 174 N.J. 192 (2002). In that case, the defendant was tried and convicted in 1979 for crimes committed in 1978. Id. at 339. After the trial court denied his motion for a new trial in October 1979, but prior to the court imposing sentence, defendant fled the country. Ibid. He was not extradited until 1997, at which time, after another motion for a new trial was denied, he was sentenced. Id. at 339-40. He appealed his conviction, we affirmed, and the Supreme Court denied certification. Id. at 340. Defendant thereafter filed a petition for post-conviction relief (PCR), which the trial court denied. Id. at 340-41. Defendant again appealed to this court. One of defendant's arguments revolved around the fact that due to the passage of time, the trial record no longer existed and could not be reconstructed. Id. at 344. In denying defendant's petition, the PCR court noted that the court reporter was deceased, his notes could not be located, the defendant's trial attorney had destroyed his files years earlier, the prosecutor who tried the case had left the office more than twenty years earlier, and the trial judge had retired years ago. Id. at 341. The defendant argued he was entitled to a new trial due to the absence of the trial record. Id. at 344. We rejected his argument, concluding that a "defendant [should] not be permitted to gain an advantage through his fugitive status." Id. at 351. In our judgment, that principle is equally applicable to this appeal, and serves as the basis for our conclusion that retroactive application of Cain is not warranted here. Consequently, the admission of Detective Olimpio's expert testimony was not reversible error.
III.
Defendant's final arguments relate to his sentence. It is apparent from the sentencing transcript that defense counsel and the sentencing judge were under the misapprehension that a five-year custodial sentence with a three-year parole disqualifier was the minimum the court could impose. However, because defendant was convicted under N.J.S.A. 2C:35-7 of third-degree distribution of cocaine within 1000 feet of school property, the applicable range of imprisonment for a third-degree offense was three to five years. N.J.S.A. 2C:43-6a(3). Accordingly, the bottom end of the ordinary sentencing range that defendant was exposed to was three, rather than five, years.
With respect to parole ineligibility, N.J.S.A. 2C:35-7a provides, in relevant part, that a person found guilty of violating the statute shall be sentenced to a term of imprisonment that "shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole." However, the statute was amended in 2010 to grant the court discretion to waive or reduce the parole ineligibility period. N.J.S.A. 2C:35-7b.
Accordingly, we deem it necessary to remand the matter for resentencing so that the court can consider an appropriate sentence within the applicable third-degree range. The court should also consider whether, given his fugitive status, defendant should be allowed to avail himself of the 2010 amendment that would permit a waiver or reduction of the parole ineligibility period. If so, the court must then go on to consider the factors enumerated in N.J.S.A. 2C:35-7b to determine whether to waive or reduce the period of parole ineligibility.
Defendant in his counseled and pro se supplemental briefs also argues that the trial court failed to consider applicable mitigating factors and, in particular, mitigating factors seven, N.J.S.A. 2C:44-1b(7) (lack of prior criminal history); nine, N.J.S.A. 2C:44-1b(9) (defendant's character and attitude indicate he is unlikely to commit another offense); and ten, N.J.S.A. 2C:44-1b(10) (defendant is particularly likely to respond affirmatively to probationary treatment). However, it is less than clear from our review of the sentencing transcript whether defendant requested the court to consider these mitigating factors or whether they are in fact applicable. Nonetheless, since we have seen fit to remand the matter, the court on resentencing may consider the applicability of these as well as any other aggravating and mitigating factors. See State v. Case, 220 N.J. 49, 64-65 (2014) (requiring that judges identify and consider "any relevant aggravating and mitigating factors" that "are called to the court's attention[,]" and "explain how they arrived at a particular sentence.") (citations omitted).
Finally, defendant argues, and the State agrees, that the sentencing court improperly imposed financial penalties on Counts One through Four, which were merged into Count Five at sentencing. Accordingly, on remand, the court shall enter an amended judgment of conviction vacating the financial penalties imposed on the merged counts.
Affirmed in part and remanded in part. Jurisdiction is not retained. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION