Opinion
DOCKET NO. A-2657-12T1 DOCKET NO. A-3083-12T1
12-26-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY D. ARMSTRONG, JR., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL PEREZ, a/k/a PAUL W. PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Troy D. Armstrong, Jr., (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Paul Perez (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sara Fedorczyk, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-08-1789. Joseph E. Krakora, Public Defender, attorney for appellant Troy D. Armstrong, Jr., (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Paul Perez (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sara Fedorczyk, Deputy Attorney General, of counsel and on the brief). PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Troy D. Armstrong, Jr. and Paul Perez challenge their convictions following a joint jury trial involving drug possession and distribution charges. We affirm in all respects.
I.
A Camden County grand jury returned an indictment charging defendants with third-degree possession of a controlled dangerous substance (CDS) (Phencyclidine (PCP)), N.J.S.A. 2C:35-10a(1) (count one); second-degree distribution of PCP, N.J.S.A. 2C:35-5b(7) (count two); third-degree possession of PCP with intent to distribute it within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree conspiracy to distribute PCP, N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(7) (count four). The indictment also separately charged each defendant with third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Armstrong-count five; Perez-count six). Finally, the indictment charged Armstrong with fourth- degree unlawful possession of a weapon (pocketknife), N.J.S.A. 2C:39-5d (count seven); second-degree possession of a weapon while in the course of committing certain drug offenses, N.J.S.A. 2C:39-4.1c (count eight); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a (count nine).
On March 23, 2012, the trial judge denied defendants' motion to suppress items seized by the police following their arrest. On August 20, 2012, the day before the trial was to commence, the judge granted defendants' motion to bar the State from presenting an expert in the field of narcotics trafficking. While a jury was being selected over the course of the next two days, the judge considered and then granted Armstrong's motion to dismiss the weapons charges against him.
The trial continued on August 23 and 28, 2012. The jury convicted both defendants of counts one through four, convicted Armstrong of count five, and convicted Perez of count six.
On October 19, 2012, the judge merged count one into count two and sentenced Perez to an extended twelve-year prison term, with four years of parole ineligibility. On counts three, four, and six, the judge sentenced Perez to concurrent five-year terms. On December 7, 2012, the judge merged count one into count two and sentenced Armstrong to an extended ten-year prison term, with three and one-third years of parole ineligibility. On counts three and four, the judge sentenced Armstrong to concurrent five-year terms. The judge also sentenced Armstrong to a concurrent eighteen-month term on count five. Finally, the judge imposed appropriate fines and penalties upon both defendants. These appeals followed.
On appeal, Armstrong raises the following contentions:
POINT I
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT IN SUMMATION, IN THE ABSENCE OF AN ACTUAL EXPERT WITNESS, EFFECTIVELY TESTIFYING AS AN EXPERT BY URGING THE JURY TO INFER AN INTENT TO DISTRIBUTE BASED ON HOW THE DRUGS WERE PACKAGED.
POINT II
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT IN HIS OPENING STATEMENT BY REPEATEDLY REFERENCING A KNIFE THAT WAS NOT OFFERED IN EVIDENCE AND RELATED TO ONLY DISMISSED CHARGES.
POINT III
THE STATE REPEATEDLY ADDUCED IMPROPER LAY WITNESS OPINIONS, INCLUDING AN INVESTIGATING OFFICER'S BELIEF THAT HE OBSERVED THE CO-DEFENDANT ENGAGE IN A HAND-TO-HAND DRUG TRANSACTION.
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. ARMSTRONG A FAIR TRIAL. (Not Raised Below).
Perez presents the following arguments:
POINT I
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING HIS OPENING STATEMENT BY REPEATEDLY REFERENCING A KNIFE THAT WAS NOT OFFERED IN EVIDENCE AND RELATED TO ONLY DISMISSED CHARGES. THIS PROSECUTORIAL MISCONDUCT VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL.
POINT II
TROOPER NEUMAN[N]'S OPINION TESTIMONY OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN, 205 N.J. 438 (2001), WHEN HE TESTIFIED THAT HE OBSERVED DEFENDANT PEREZ ENGAGE IN A HAND-TO-HAND DRUG TRANSACTION.
POINT III
THE DEFENDANT'S ARREST AND SEARCH WERE NOT BASED ON PROBABLE CAUSE BUT ON TROOPER NEUMANN'S IRRELEVANT AND UNDULY PREJUDICIAL TESTIMONY THAT DEFENDANT WAS ARRESTED IN A HIGH CRIME AREA.
POINT IV
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR DISTRIBUTION OF CDS. (COUNT 2).
POINT V
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR CONSPIRACY TO DISTRIBUTE CDS (COUNT 4).
POINT VI
THE TRIAL COURT'S JURY INSTRUCTION ON DISTRIBUTION OF CDS WAS CONFUSING AND EXCEEDED THE SCOPE OF THE DISTRIBUTION CHARGE IN THE INDICTMENT, NECESSITATING A
REVERSAL AND REMAND FOR A NEW TRIAL. (Not raised below).
POINT VII
THE TRIAL COURT IMPROPERLY DOUBLE COUNTED DEFENDANT'S PRIOR RECORD AND FAILED TO CONSIDER THE NATURE OF THE OFFENSE AND THE PRESENCE OF MITIGATING FACTORS WHEN IT IMPOSED AN EXCESSIVE TWELVE YEAR SENTENCE WITH FOUR YEARS OF PAROLE INELIGIBILITY.
After reviewing the record in light of the contentions advanced by each defendant on appeal, we affirm.
II.
The State developed the following proofs at trial. On February 14, 2011, four State troopers were assigned to conduct a surveillance of drug activity at a specific intersection near a take-out restaurant. Shortly after 10:00 p.m., the troopers parked their unmarked SUV about fifty yards from the intersection. Trooper Neumann watched the corner through binoculars. He testified the corner was illuminated by a street light, and he had a "clear unobstructed view[.]"
Around 10:30 p.m., Trooper Neumann saw two men standing on the corner in front of the restaurant. He watched them for about fifteen minutes. The trooper stated the men "would eventually end up on the corner. They would talk briefly. They'd go into the [restaurant] and come back out, but eventually they would end up back on that corner."
Trooper Neumann then saw a red Honda drive toward the corner. The trooper testified that "Armstrong signals, gives a wave, motions the vehicle over, the vehicle pulls over, a male gets out of the car, goes up to . . . Armstrong." The two men had a "real brief conversation" and the man then handed Armstrong "money, currency."
Trooper Neumann stated he saw Armstrong walk about twenty feet to the front of the restaurant, where there was "a pile of trash" on the sidewalk. Armstrong "pull[ed] a bag, a stash, a bag containing unknown items" from the trash. Armstrong took a small item out of the bag, put the bag back into the trash, and walked back to where the man was still standing. Armstrong gave the man the item and the man got back into his car and drove away. The man in the Honda had no interaction with Perez.
Trooper Neumann testified the troopers decided to move in to arrest defendants, and they began driving up to the corner in their SUV. As they drove, Trooper Neumann stated he saw another man "walk[] up" to Perez. The man "already had money in his hand" as he approached, and he handed the "paper currency" to Perez. Perez "accept[ed] the money[,] . . . put[] the money in his pocket and he goes to reach into his pocket again."
At that point, the troopers arrived at the corner, and parked about fifteen feet away from defendants. Trooper Neumann testified the troopers "jumped out" of the SUV and he yelled, "State Police." Defendants and the unidentified man immediately ran. Trooper Neumann followed Armstrong and the unidentified man, but they "eventually" went in different directions. The trooper continued to pursue Armstrong for "a block and a half" before catching him. Trooper Neumann stated Armstrong gave him "some resistance. He wouldn't put his hands behind his back. I struck him in the face, I eventually had him handcuffed."
Trooper Moore testified that he was part of the surveillance team. His responsibility was to assist in arresting suspects and, therefore, he did not watch the corner after the troopers parked and set up their surveillance. Trooper Moore testified that after the three men began to run, he and Trooper Munsch pursued Perez. Trooper Moore tackled Perez about twenty to thirty yards from the corner. As he did so, Perez "[c]lenched his fists, rolled over, just tried to get us off of him. With that I struck him in the face and we were able to place cuffs on him."
Trooper Moore testified that Perez had "a glass jar with green vegetation in it that had a strong odor" in his hand. The trooper seized the item. After arresting Perez, Trooper Moore searched him and found $79 in currency and "a plastic bag that contained multiple glass jars that contained green vegetation with a strong odor" in Perez's pockets. Trooper Moore stated that thirteen vials were found in the bag.
Trooper Neumann testified that he took Armstrong back to the corner after he arrested him. The trooper searched Armstrong and found "$135 on him." Trooper Neumann then looked in the trash pile and found a "clear plastic bag" containing twenty-six "small glass jars, glass vials with a green type of vegetation in it, and it has a very strong smell." All of the vials that were found that night were "similar in size, shape, [and] color."
A State Police lab technician analyzed the substances found in the vials, and testified they tested positive for PCP. A teacher from the elementary school located within 1000 feet of the street corner where the incident took place, testified that the school was operational throughout the 2011-2012 school year.
Defendants did not call any witnesses and neither testified at trial.
III.
As noted above, the indictment charged Armstrong with unlawful possession of a pocketknife and possession of the pocketknife while in the course of committing a drug offense. During the pre-trial suppression hearing, Trooper Neumann testified that, as he was chasing Armstrong, he saw Armstrong "throw[] a knife" away. The trooper stated the knife was never logged into evidence and that he may have discarded it or simply left it at the scene. Trooper Neumann also testified he did not charge Armstrong with any weapons offenses at the time of his arrest.
Armstrong also faced a certain persons not to have weapons charge, but that charge was not initially presented to the jury because its resolution had to await a determination of the other charges. State v. Ragland, 105 N.J. 189, 193 (1986).
On August 21, 2012, the judge and the parties began the jury voir dire. Although the parties have not provided us with the transcript of the jury selection process, it is not disputed that, during his preliminary instructions to the prospective jurors, the judge advised them that Armstrong was charged with unlawful possession of a pocketknife and with possession of the pocketknife while in the course of committing a drug offense. The jury selection process was not completed until August 22, 2012.
Sometime during the day on August 21, however, Armstrong's attorney made a motion to dismiss the weapons charges, because the weapon was "only" a pocketknife; the troopers did not initially charge him with any weapons offenses; and the pocketknife was not available to be introduced in evidence. Following extensive oral argument, the judge advised the parties that he would decide the motion the next day.
On August 22, the prosecutor stated he did not object to dismissing the weapons charges, and the judge granted Armstrong's motion. During "off the record" conversations, at least one, if not both, of the defense attorneys told the prosecutor that he intended to vigorously cross-examine Trooper Neumann on his failure to retrieve the pocketknife from the scene.
The judge and the parties completed the jury selection process. Defendants did not ask the judge to advise the jurors that the weapons charges had been dismissed and the judge did not do so on his own. Again, the parties have not provided us with the transcript of the instructions the judge gave to the jury after it was sworn, but we presume he did not include the dismissed weapons charges in his recitation of the charges involved in the case.
The prosecutor then began his opening statement. He briefly referred to the drug possession and distribution charges, and then stated:
Now, I know you're curious to hear about this case. You sat through a day and a half, some of you, most of you for jury selection. You want to hear what's going on, you want to know about the case and we're going to do that. I'm going to take 12 you to that in one minute. You'll hear witnesses this afternoon that I intend to call to tell you about the case, but before we do, the judge also read some counts to you during jury selection about a knife, and those counts have since been dismissed, and you'll hear more about that why later, but basically the knife charges have been dismissed, and the reason is that you'll hear during the testimony is during this incident one of the troopers saw, while he was chasing the defendant, Troy Armstrong, Mr. Armstrong is the one in the green shirt. While he was chasing Mr. Armstrong, he saw Mr. Armstrong drop the pocketknife on the ground, out on the ground while he was chasing him, and the troopers did not think it was of evidentiary value. He didn't collect the knife, he didn't charge the defendant with possessing the knife, and didn't collect the knife as evidence. So, we're not presenting the knife charge to you, any of the knife charges to you, and that's frankly, the way it should be because this really isn't a knife case. What you'll hear through the testimony is that it was a little pocketknife and I suspect the defense will try to make a big deal out of it, but I'm telling you now, we're not asking you to find the defendant guilty of any knife. The knife is irrelevant in this case. It was a little pocketknife, it was collected
Armstrong's attorney objected and requested a sidebar. During the ensuing argument, the prosecutor explained that he referred to the pocketknife in order to explain to the jury that the charges had been dismissed and to place any testimony to follow in that context. In response to the judge's inquiry, Armstrong's attorney stated, "I absolutely plan on going into the testimony regarding the knife because that's in the police report" and he believed that Trooper Neumann's handling of that aspect of the case was relevant to the trooper's credibility. At the same time, however, counsel stated there had not yet been any testimony about the pocketknife and, therefore, the prosecutor should not have referred to it or the possibility that Armstrong would "try to make a big deal out of it." Armstrong's attorney moved for a mistrial, and Perez's attorney joined in the request.
Following a luncheon recess, the judge denied defendants' motion for a mistrial. He stated he had not instructed the jurors that the charges had been dismissed because defendants had not asked for such an instruction. Because defendants continued to insist they would cross-examine Trooper Neumann about the pocketknife, the judge explained that the prosecutor's statement would not be prejudicial to them. He instructed the prosecutor not "to go on and on about the knife." He also advised defendants that, it they wished, or decided not to raise the issue of the pocketknife during cross-examination of the trooper, he would give a strong curative instruction to the jurors. Although defendants continued to seek a mistrial because of the prosecutor's comment throughout the rest of the trial, they never asked the judge to provide the jury with any further instruction concerning the matter. Neither the prosecutor nor defendants asked Trooper Neumann about the pocketknife and the weapons charges were never mentioned again.
On appeal, defendants contend that the prosecutor "committed prosecutorial misconduct" by referring to the pocketknife at the beginning of his opening statement. Although the better practice would have been for the judge to advise the jury that the pocketknife charges had been dismissed prior to the parties' opening statements, and for the prosecutor to refrain from attempting to do so, the prosecutor's brief reference to the pocketknife does not warrant a reversal of defendants' convictions.
Armstrong raises this contention in Point II, and Perez presents his argument in Point I of their respective briefs.
"A prosecutor's opening statement 'should provide an outline or roadmap of the State's case' and 'should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004)). Whether "a comment by counsel is prejudicial . . . or undermines the fairness of a trial [is a] matter[] peculiarly within the competence of the trial judge." State v. Yough, 208 N.J. 385, 397 (2011) (citation and internal quotation marks omitted). "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary to prevent an obvious failure of justice." Ibid. (citation and internal quotation marks omitted). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a clear showing that the defendant suffered actual harm or that the court otherwise abused its discretion." Ibid. (citation and internal quotation marks omitted).
"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). We analyze the prosecutor's comments within the context of the whole trial. State v. Feaster, 156 N.J. 1, 64 (1998). A new trial will be conducted only where the misstep was so egregious that it clearly and unmistakably deprived the defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009); State v. Kelly, 406 N.J. Super. 332, 351 (App. Div. 2009), aff'd, 201 N.J. 471 (2010). This standard requires some degree of real possibility that an error led to an unjust result, namely, one sufficient to raise a reasonable doubt as to whether it caused the jury to convict where it otherwise would have acquitted. State v. R.B., 183 N.J. 308, 330 (2005).
Applying these standards here, we conclude that the error arising from the prosecutor's brief comment was harmless beyond a reasonable doubt. At the beginning of the trial, the jurors were already aware that Armstrong had been charged with offenses related to his possession of the pocketknife. After the charges were dismissed, neither defendant asked that the judge advise the jury of the dismissal and they continued to insist throughout their initial arguments concerning the prosecutor's comment that they intended to cross-examine Trooper Neumann concerning the pocketknife. Once the judge denied defendants' motion for a mistrial, the prosecutor never mentioned the pocketknife again. The judge repeatedly asked defendants throughout the remainder of the trial whether they wanted him to provide the jury with an instruction concerning the prosecutor's comment or the disposition of the weapons charges. Neither Armstrong nor Perez requested such an instruction. Finally, there was an overwhelming amount of credible testimony and other evidence of defendants' guilt on the charges presented to the jury. Thus, the prosecutor's remarks did not prejudice "defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 438 (2007) (citation and internal quotation marks omitted). Therefore, we conclude that the error was harmless, and decline to reverse. R. 2:10-2.
In a related argument, Armstrong asserts in Point I of his brief that the prosecutor made an improper comment during his summation that requires the reversal of his conviction. We also reject this contention.
During his closing argument, the prosecutor spoke to the jury about the possession of PCP with intent to distribute charge. He pointed out that Armstrong "ran over to the trash pile, grabbed one out, did a transaction, accepted money. That's consistent I suggest to you with distribution[,] not personal use." As for Perez, the prosecutor stated that "he was in the middle of a transaction that got interrupted when the troopers jumped out. He still had the one vial in his hand. The actions of defendant can be shown -- used to show that the drugs were used or possessed with the intent to distribute."
The prosecutor then began to talk about "[p]ackaging, let's talk about the packaging for a little bit." He told the jurors, "You're allowed to infer that these drugs were used or possessed with the intent to distribute based on the packaging." At that point, Armstrong's attorney objected and argued at sidebar that the prosecutor was improperly giving an expert opinion to the jury. The judge sustained the objection and, when the prosecutor resumed his argument, he made no further mention of the packaging.
While we agree that the remark was improper because there was no expert testimony presented on the subject of packaging and therefore, no factual basis for the prosecutor's argument, we conclude that the comment was not "so egregious as to deprive [Armstrong] of a fair trial." Wakefield, supra, 190 N.J. at 437-38 (citation and internal quotation marks omitted). The remark was fleeting and, after Armstrong objected, was not repeated. Armstrong did not request an immediate curative instruction and, in his final charge to the jury, the judge clearly instructed the jurors that "summations of counsel are not evidence and must not be treated as evidence." Under these circumstances, we discern no basis to disturb Armstrong's conviction.
IV.
Defendants next argue that Trooper Neumann, who testified as a lay witness, improperly expressed expert opinions on a variety of subjects during his testimony on direct and cross-examination. Defendants assert that, because the trooper was not qualified as an expert, he should not have described the bag of items that Armstrong took from the trash pile in front of the restaurant as a "stash" or the intersection as being part of "a high crime area." They also contend the trooper should not have stated that, after he observed Armstrong exchange a small item for cash with the man from the red Honda, the troopers "decided that we were going to make an arrest."
Armstrong raises this contention in Point III, and Perez presents his argument in Point II of their respective briefs.
--------
Defendants further allege the trooper should not have stated that "vials of PCP" were found during the searches that occurred after defendants were arrested or that the vials were seized because the trooper "believe[d] it was drugs or CDS." They contend that only an expert could identify the items seized as PCP or drugs. Along these same lines, defendants argue that Trooper Moore should not have stated that he retrieved "drugs and money" from Perez.
Defendants also complain that Trooper Neumann stated on cross-examination that, based on the brief conversation he observed between Perez and the second man, "[t]hey're not obviously friends. . . . From my experience, it didn't seem like a friend encounter. To me, it seemed like a transaction in progress." At another point during cross-examination, the trooper stated that Perez was "looking around on the corner while the [red Honda] pulled up." When Perez's attorney asked him whether "looking around" was a crime, Trooper Neumann replied, "Technically, he could have been looking as -- acting as a lookout for police presence."
According to defendants, the troopers' testimony should not have been permitted or, in the instances where their objections were sustained, the judge should have stricken the remarks from the record, because the testimony violated the ground rules established in State v. McLean, 205 N.J. 438, 449 (2011) and State v. Odom, 116 N.J. 65, 70-71 (1989). We disagree.
Since its decision in Odom, supra, the Supreme Court has held that expert opinions in narcotics prosecution cases are limited to relevant subjects that are beyond the understanding of the average juror. McLean, supra, 205 N.J. at 450. Expert opinion is generally inadmissible if the alleged drug transaction occurred in a straightforward manner that the average juror can readily understand. Id. at 452. 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. Ibid.
Here, consistent with those principles, the troopers testified as lay witnesses and the State did not seek to offer them as experts. Even though expert opinion testimony is inadmissible in the context of a "straightforward" hand-to-hand exchange of drugs for money, id. at 449-52, lay opinion testimony, as defined in N.J.R.E. 701, is nevertheless admissible when offered to describe "what was directly perceived by the witness[.]" Id. at 460. The "personal observations and perceptions of the lay witness" are admissible so long as the police officer is not offering an opinion, id. at 459, provided the factual testimony is limited to setting forth "what [the officer] perceived through one or more of the senses." Id. at 460.
Most, if not all, of the testimony defendants have highlighted falls under the category of "fact-based recitations" of the troopers' observations at the scene. For example, calling the bag a "stash"; describing the conversation between Perez and the second man as not being an encounter between friends; or stating in response to defense counsel's question that it was possible Perez was acting as a look-out, were not statements requiring an expert opinion. While the troopers were not qualified to give an expert opinion that the items seized from defendants were vials of PCP, they knew by the time of their trial testimony that the State Police lab technician had analyzed the substances found in the vials, and determined the vials contained PCP. Therefore, this testimony was not improper.
In other instances, such as Trooper Neumann's testimony that the intersection was "a high crime area," defendants' objections to the testimony were sustained and the prosecutor moved on to other areas. While defendants now complain that the judge did not order the responses stricken from the record, they did not request such relief at trial.
Although Trooper Neumann's testimony that the second man's encounter with Perez "seemed like a transaction" came close to crossing the line established in McLean, supra, it did not do so. In McLean, after the detective testified as to his fact-based observations, and stated "he saw [the defendant] engage in two suspected hand-to-hand drug transactions," the prosecutor repeatedly referred to the detective's "experience." Id. at 462-63. The prosecutor in McLean then posed the following question, "So based on our own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The Court deemed such references to the officer's "experience" improper. Ibid.
Unlike in McLean, where the officer's answer was immediately preceded by testimony about his two decades of experience in law enforcement, id. at 446, 463, Trooper Neumann's testimony about his prior experience as a police officer came at the very beginning of his testimony and was mostly limited to a description of his current assignment. His experience was not referenced again by the prosecutor during his testimony.
In addition, and unlike in McLean, supra, Trooper Neumann never specifically opined that Perez had engaged in a "drug transaction." Rather, his testimony that Perez's brief conversation with the second man "seemed like a transaction in progress" was responsive to Perez's attorney's question for a further explanation of why the trooper stated the two men "were not obviously friends." Trooper Neumann never referred to the statutory language of the charges contained in the indictment, and never testified that Perez's contact with the second man established his or Armstrong's guilt on the distribution charges. Odom, supra, 116 N.J. at 82 (prohibiting a proffered expert in a narcotics case from expressing a direct opinion of the defendant's guilt, specifically referring to the elements of the offense, or tying the hypothetical to the specific facts of the case).
Because the testimony here did not encompass all of the features that rendered such testimony inadmissible in McLean or Odom, we are not prepared to hold that the troopers' testimony violated the teaching of those cases. Therefore, we reject defendants' contentions on this point.
V.
In Point III of his brief, Perez argues that the troopers lacked probable cause to arrest him and, therefore, the judge should have granted his motion to suppress the evidence seized during the search incident to his arrest. We disagree.
Our standard of review on a motion to suppress is limited. 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). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Johnson, 42 N.J. 146, 162, (1964)). We generally defer to a motion court's findings, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy[.]" State v. Davila, 203 N.J. 97, 109-10 (2010) (citation and internal quotation marks omitted). We will reverse only if convinced that the motion judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).
Trooper Neumann's testimony at the pre-trial suppression hearing was similar to that he later provided at trial, with the following exceptions. Trooper Neumann stated that the corner where the surveillance was conducted was "one of the biggest PCP wet sets . . . in New Jersey, if not the east coast. . . . It's known to be violent in that area and heavy drug traffic." He also stated that, after Armstrong's transaction with the man in the red Honda, the troopers decided to drive to the corner and arrest Armstrong for "what we had just observed" and to arrest Perez for loitering. However, by the time the troopers arrived at the intersection, Trooper Neumann had observed Perez's interaction with the second man. As noted above, the trooper also testified that Armstrong threw away a pocketknife as he attempted to flee the scene.
At the conclusion of the hearing, the judge denied the motion to suppress in an oral decision. The judge found that the search was incident to a valid arrest. In so ruling, the judge determined the troopers had probable cause to arrest both men based upon their observations. Defendants were standing on a corner in "a high intensity drug area." When Armstrong engaged in his transaction with the man in the red Honda, Perez stood by and watched as Armstrong retrieved an item from a bag located in a pile of trash in front of the restaurant. As the troopers approached, Trooper Neumann observed Perez take money from a second man and reach into his pocket. Defendants ran away when the troopers arrived. Under these circumstances, the judge found that the troopers had probable cause to arrest both defendants and, therefore, the items seized during the searches incident to those arrests should not be suppressed.
We discern no basis to disturb the judge's ruling. "Warrantless searches are presumptively unreasonable and thus are prohibited unless they fall with a recognized exception to the warrant requirement," such as a search incident to arrest. State v. Pena-Flores, 198 N.J. 6, 18 (2009). "Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area with his immediate grasp." Id. at 19. "The purpose of such a search is (1) to protect the arresting officer[s] from any potential danger and (2) to prevent the destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446, 461 (2002). "[T]he ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Pena-Flores, supra, 198 N.J. at 19.
"[A] principal component of the probable cause [to arrest] standard is a well-ground suspicion that a crime has been or is being committed." State v. Moore, 181 N.J. 40, 45 (2004) (citations and internal quotation marks omitted). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Id. at 46 (citations and internal quotation marks omitted). In determining probable cause, a court applies a totality of the circumstances test and, as part of that test, may consider the police officer's "common and specialized experience" and "evidence concerning the high-crime reputation of an area." Ibid. (citations and internal quotation marks omitted).
After applying these standards, we agree with the trial judge that, based on Trooper's Neumann's observations of defendants, and their interactions with each other and the two unidentified individuals who gave them money, the troopers had probable to arrest both Perez and Armstrong for drug distribution. Therefore, the search of Perez, incident to that arrest, was clearly valid.
Perez states that, during oral argument, the judge asked the attorneys several times whether probable cause would exist if the activities the troopers observed had taken place in a location not known for being a primary site for drug distribution. Based upon the judge's give-and-take with the attorneys, Perez argues that the judge improperly focused solely on the fact that the incident occurred in "a high intensity drug area" in determining there was probable cause to arrest. We again disagree.
As noted above, the location where the incident occurs is one of the factors a judge may properly consider in determining the existence of probable cause to arrest a suspect. Moore, supra, 181 N.J. at 46. Moreover, the judge considered all of the circumstances surrounding the incident, including the trooper's observation of both defendants engaging in transactions with unidentified individuals, in determining there was probable cause to arrest. Finally, it is well-established that a judge's colloquy with counsel during oral argument is not the equivalent of the judge's findings of fact and conclusions of law. Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006). Therefore, while the focus of the judge's questions on this point may have been on the trooper's familiarity with the history of the surveillance site, his ultimate decision was not based exclusively on this factor. Therefore, we reject Perez's contention.
VI.
In Points IV and V of his brief, Perez argues that the record "contains insufficient evidence" to support his convictions for distribution of PCP, N.J.S.A. 2C:35-5b(7), and conspiracy to distribute PCP, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5. This argument lacks merit.
The governing test for determining whether there is sufficient evidence in the record to support a conviction is
whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged."In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).
[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
A defendant is guilty of conspiracy to distribute PCP if: (1) he or she agrees with another person that at least one of them will engage in conduct that constitutes this crime; (2) the defendant's purpose is to promote or facilitate the distribution; and (3) the defendant or his or her co-conspirator performs an overt act in furtherance of the conspiracy. N.J.S.A. 2C:5-2. A defendant is guilty of the underlying crime of distribution of PCP if: (1) the item in question is PCP; (2) the defendant distributed the PCP as alleged in the indictment; and (3) the defendant acted knowingly or purposely. N.J.S.A. 2C:35-5. As used in N.J.S.A. 2C:35-5, "'[d]istribute' means to deliver . . . a controlled dangerous substance[.]" N.J.S.A. 2C:35-2. "'Deliver' . . . means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance[.]" Ibid.
Applying these standards, we conclude there was ample evidence in the record to support Perez's convictions for distribution of PCP and conspiracy to distribute PCP. Trooper Neumann observed Perez and Armstrong standing on a corner conversing with each other, and entering and exiting the restaurant. When the man from the red Honda appeared and exchanged money for an item Armstrong retrieved from a bag containing vials of PCP, Perez remained at the scene with Armstrong. As the troopers approached, Trooper Neumann saw a different man approach Perez and give him cash and Perez reached into his pocket. Perez had a vial of PCP in his hand, and was carrying a bag containing an additional thirteen vials, at the time of his arrest. The drugs found in Perez's possession were packaged identically to those found in the bag Armstrong was using to store his drugs. A rational juror could clearly surmise from this evidence that defendants were working together selling PCP on the corner in violation of N.J.S.A. 2C:5-2, and that they each distributed this drug within the intendment of N.J.S.A. 2C:35-5.
Perez argues that, because he did not complete his transaction with the second man, there is "absolutely no evidence that [he] distributed any drugs at all to anyone." However, as noted above, the term "distribute" in N.J.S.A. 2C:35-5 is defined as "delivery," and "delivery" is defined as the transfer of a controlled dangerous substance from one person to another, whether that transfer is "actual, constructive, or attempted[.]" N.J.S.A. 2C:35-2; see also State v. P.L., 369 N.J. Super. 291, 294 (App. Div. 2004). Thus, the distribution charge set forth in count two plainly encompassed Perez's conduct in this case. A rational juror could appropriately conclude that, at the very least, Perez attempted to distribute the PCP to the second man when he put his hand into his pocket after taking money from the second man, especially after he was found holding a PCP vial in his hand at the time of his arrest. Under these circumstances, we discern no basis for disturbing Perez's conviction for distribution of PCP.
For these same reasons, we also reject Perez's argument, raised in Point VI of his brief, that the judge erred in instructing the jury that "distribute means to transfer actual, constructive or attempted from one person to another of a controlled dangerous substance. It is not necessary that the drugs be transferred in exchange for payment or promise of payment of money or anything of value."
Perez did not object to the instruction at trial and, therefore, we review the claimed error under the plain error standard. R. 2:10-2. "[P]lain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
Reviewed under that standard, we find no error, let alone plain error. The judge's instruction mirrored the statutory definition of the term "distribute" in N.J.S.A. 2C:35-2, and followed the Model Jury Charge for this offense. Model Jury Charges (Criminal), "Distribution of a Controlled Dangerous Substance" (2008). A jury charge that tracks the language of the governing statute, and which is consistent with the applicable Model Jury Charge, is not plainly erroneous. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).
VII.
In Point IV of his brief, Armstrong argues that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected Armstrong's argument that any reversible error occurred during the trial, we also reject his cumulative error argument.
VIII.
Finally, in Point VII of his brief, Perez argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must 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." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 19-20) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 20; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code, including the imposition of a mandatory extended term under N.J.S.A. 2C:43-6f. The sentence the judge imposed does not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, (slip op. at 20); O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION