Opinion
DOCKET NO. A-2096-12T1
01-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE T. RODGERS, a/k/a GARY ADAMS, JEFFREY REID, GEORGE ROGERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Richard Greenhaus, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-02-0145. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Richard Greenhaus, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant George T. Rodgers appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), count one; second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(7), count two; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6. Defendant also maintains the imposed sentence was excessive. On appeal defendant seeks a new trial, challenging as error pre- and post-trial rulings, certain evidential determinations, and the jury instructions. More specifically, he argues:
POINT I
THE DEFENDANT'S RIGHT TO CONFLICT-FREE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[A]. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. THE FEDERAL STANDARD.
B. THE NEW JERSEY STANDARD.
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[A]. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL ADMISSION OF OPINION EVIDENCE (Not Raised Below).
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[A]. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE (Not Raised Below).
A. THE TRIAL COURT'S INSTRUCTION THAT DISTRIBUTE MEANS THE "TRANSFER" OF CDS WAS MISLEADING AND INACCURATE.
B. THE INSTRUCTION ON THE LAW OF ATTEMPTED DISTRIBUTION WAS INCOMPLETE, ERRONEOUS, AND PREJUDICIAL.
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[A]. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below).
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR[A]. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PREJUDICIAL REFERENCE TO "GANG" INVESTIGATIONS. (Not Raised Below).
POINT VI
THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT VII
THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT VIII
THE SENTENCE IS EXCESSIVE.
A. THE STATE'S MOTION FOR AN EXTENDED TERM WAS ARBITRARY AND CAPRICIOUS.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
C. THE DRUG KINGPIN-TYPE SENTENCE FOR SUCH A SMALL QUANTIFY OF CDS SHOCKS THE JUDICIAL CONSCIENCE.
We have considered the arguments on appeal, in light of the record and applicable law. We affirm.
I.
We recite the facts as presented during an evidentiary hearing on defendant's motion to suppress evidence and trial. Trenton Police Department Tactical Anti-Crime Unit members Sergeant Darren Zappley and Detective Michael Schiaretti testified in each proceeding.
On October 23, 2009, Sergeant Zappley received information from "a reliable and confidential informant," that defendant "was going to be at his residence" on "West State Street, and that [he] would be distributing phencyclidine from that location." Sergeant Zappley advised Detective Schiaretti of the informant's tip. Detective Schiaretti had "personally used" this informant before, to whom "over 20 arrests . . . could be attributed." A plan was developed to conduct surveillance of the area, which is primarily residential.
Defendant's residence was located in "an apartment building, several stories high, [with] a front lobby which was used for the entrance. In addition, there [wa]s parking along both sides and in the front of the building." Police parked, maintaining a line-of-sight of "the front lobby entrance/exit of the building, and [could] . . . see the full front of the building all the way to West Dean Avenue."
At approximately 8:23 p.m., police observed defendant "walk out of the front of the building and . . . proceed[] directly over to a dark colored Ford Taurus that had just arrived at that location. [H]e looked around the vehicle, got in the front passenger's seat and the vehicle drove off out of sight." The Taurus drove "around the back of the building. There's a short alley way. Turned left into the alley way, made another left, driving directly past [the officers'] location, and then another left back in the front of the building." Defendant exited the Taurus, returned inside the building and the Taurus drove away. The entire encounter took less than a minute.
Approximately fifteen minutes later, defendant again exited his apartment building and walked toward a white Pontiac, which had arrived in the parking lot. The Pontiac was driven by Farrell Higgenbaum, known to Sergeant Zappley as a phencyclidine user. Higgenbaum was accompanied by a front-seat passenger, later identified as Nicole Saunders. When defendant entered the vehicle's rear passenger side, the "interior light illuminated, . . . [and defendant] was in the rear seat for a very brief period of time." Detective Schiaretti continued his surveillance and "observed another male, [heavyset], walk from Westfield Avenue directly up to the rear seat where . . . [defendant] was seated." The rear driver's side door was left open and Detective Schiaretti saw defendant and the heavyset male, "exchange[] something[,]" although he was unable to determine "what it was[.]"
Following this exchange, the officers "pulled up next to the Pontiac and just slightly ahead of it." Detective Schiaretti exited and "walked directly to the driver's side rear window, which was up, and . . . illuminated it . . . with [his] flashlight." He identified himself as a police officer, and "upon peering in, could see [defendant] dumping . . . a liquid onto the floor from a clear glass bottle." Detective Schiaretti "immediately suspected" the substance was phencyclidine as that was "what it looked like[.]"
Detective Schiaretti commanded defendant to "stop." Defendant looked at him, locked the vehicle's doors, "turned back to what he was doing and ignored everything [Detective Schiaretti] was saying." Defendant proceeded to "dump[] the phencyclidine onto the ground." Because he believed defendant was attempting to destroy evidence, Detective Schiaretti ordered another officer to break the vehicle's window with his flashlight, which he did.
Once the window was broken, Detective Schiaretti could "smell what [he] believe[d] was the odor of phencyclidine," noting he was familiar with its "very distinct smell" and had smelled phencyclidine over 100 times. Detective Schiaretti unlocked the vehicle and opened the door, which released an even "more overpowering smell of the phencyclidine which kind of caused [him] to briefly . . . step back." Detective Schiaretti "forcibly grabbed [defendant] by his clothes and . . . pull[ed] him out of the vehicle." A brief struggle ensued and defendant was eventually handcuffed. Defendant, Higgenbaum and Saunders were placed under arrest. The heavyset male who last approached defendant was able to slip away.
[U]pon looking into the vehicle, in plain view, strewn about the back seat area, both floor boards, the seat were a packet of Newport cigarettes that appeared to have been dipped in phencyclidine, a couple of loose Newport cigarettes that appeared to have been dipped in phencyclidine, a puddle of a liquid that appeared to be phencyclidine on the floor mat as well as a couple of the empty glass bottle with black tops that were there.
On the floor of the vehicle's backseat, "[r]ight at [defendant's] feet," police recovered an empty glass bottle and black cap, two loose, wet cigarettes, and "a black plastic grocery bag." The black bag contained additional empty glass vials and two packs of cigarettes — one sealed and unopened and one open, containing ten wet cigarettes. There was liquid on the floor with "a yellow tint" that smelled like phencyclidine.
Crime Scene Detective Marcelis Rosa-Delgado processed the scene. Detective Rosa-Delgado swabbed the liquid on the floor, which later tested positive for trace amounts of phencyclidine. The loose, wet cigarettes also tested positive for phencyclidine and weighed 8.96 grams and 2.78 grams respectively. It was not known "how much of that weight was the weight of the cigarettes[.]"
At trial, in addition to fact testimony, the State presented testimony from Detective Jesus Perea of the Mercer County Sheriff's Office, who was qualified as "an expert in the identification, the use, the manufacture, the distribution, the packaging and the street value of drugs or . . . illegal narcotics use in Mercer County." Detective Perea stated phencyclidine was most commonly sold in "the West Trenton area . . . from Stuyvesant Avenue, Prospect Street, Hermitage Avenue, West State Street, that local West Trenton area." He explained phencyclidine exists in powder and liquid form and liquid users buy "laced cigarette[s,]" which are cigarettes that a dealer would dip into the phencyclidine. Further, "street-level" dealers most often carry phencyclidine in "what is called a vanilla extract bottle; that's normally what [he] ha[s] seen. Most use the glass bottles with the black caps on them." Finally, "99 percent of the time you're going to see it[, the cigarettes used are] Newports."
Detective Perea also testified about the common procedure of such a narcotics transaction. Noting transactions are not usually conducted in the open, he stated: "If it is foot traffic, if the dealer is set up at a certain corner, a certain location and the buyer approaches, they would walk either behind an abandoned building, they would do it in cars, take a ride around the corner."
[A] lot of times, if they are in an apartment building, dealing out of a certain apartment building, they would have a little stash where they would put their stash at and go back and forth with it, depending on the deal. So if you're dealing it, you have a stash. You're not going to get both the drugs and the money and go to the sale. You're just going to grab your drugs and . . . do the transaction.
A stash location could be a car, an abandoned house. It could be in a garbage can. Something where you would want to hide your drugs from being found.
The jury convicted defendant. The State moved for imposition of an extended term sentence. The trial judge granted the motion. He merged count two into count one and imposed a fourteen-year sentence subject to a seven-year period of parole ineligibility and a concurrent eighteen-month sentence on count four. This appeal ensued.
II.
Defendant raises numerous claims in support of his request to vacate his convictions. We have altered the order of issues as presented in the brief, to group similar issues.
A.
Defendant first argues the trial judge erred in denying his motion for new counsel. The issue arose prior to trial. Defendant identified Craig Alfred as a potential defense witness. Alfred purportedly was present at the scene when defendant was arrested and would explain he went up to the Pontiac where defendant was seated, but did not purchase drugs.
In an unrelated proceeding, Alfred was represented by the same public defender assigned to represent defendant; counsel also represented Alfred on two previous matters. Alfred was assigned a new public defender for the purpose of ascertaining whether he would be testifying on defendant's behalf in this case. The trial judge conducted a N.J.R.E. 104 hearing to examine Alfred's viability as a witness. Prior to Alfred's examination, defendant asked to "speak on [his own] behalf," but was denied because he was represented by counsel.
Alfred appeared. When asked by the judge whether he intended to testify if called by defendant, Alfred invoked his Fifth Amendment right against self-incrimination. In response to the judge's inquiry on what matters defense counsel represented Alfred, she mentioned two matters in 2010 and 2011, but did not want to detail her representation based on privilege. In addition, she specifically asserted she "never represented [Alfred] in any shape or form in connection with any allegations dealing with the possession of or attempt to purchase or [the] distribution of narcotics on October 23, 2009 . . . in Trenton[.]" Nevertheless, counsel maintained her prior presentation of Alfred and her current representation of defendant created a conflict and the appearance of impropriety, requiring she be removed and new counsel appointed. The State refuted application of the appearance of impropriety standard because Alfred was not testifying and, thus, counsel would not be questioning a client.
Finding Alfred "properly invoked" his Fifth Amendment right to remain silent, and because he would not testify, the judge found no conflict of interest precluded counsel's representation of defendant. Counsel was not removed.
Defendant reasserted the issue of removing counsel prior to jury selection. He explained Alfred's name was revealed only to his attorney, and the next day, Alfred was "threaten[ed]" by someone who told him, "if you go and testify on behalf of [defendant] . . . [phencyclidine] charges will be brought against you." Defendant also complained counsel was ineffective, explaining she did not follow his instructions, did not respond to his inquiries and was inadequately prepared for trial, highlighting her inability to sufficiently attack police credibility or their use of a confidential informant. As a precaution, an independent public defender consulted with defendant regarding his concerns. Counsel stated she did not "want to go into a lot of discussions about [her] case because that goes to attorney[-]client privilege and client strategy." The trial judge considered and rejected defendant's assertions.
On appeal, defendant suggests the judge's inquiry into the nature of the conflict in counsel's representation of both him and Alfred was insufficient, claiming the judge erred in accepting counsel's invocation of attorney-client privilege rather than obtaining the factual basis for the alleged conflict. We are not persuaded.
A criminal defendant's constitutional right to counsel is fundamental and must be protected. State v. Coon, 314 N.J. Super. 426, 432-33 (App. Div.), certif. denied, 157 N.J. 543 (1998). See also U.S. Const. amend. VI; N.J. Const. art. I, para. 10. "The assistance of counsel is essential to ensuring fairness and due process in criminal prosecutions." Coon, supra, at 433 (citing State v. Sugar, 84 N.J. 1, 16 (1980)).
An accused also has the right to the effective assistance of counsel, unhampered by a conflict of interest, which would adversely affect counsel's performance on a defendant's behalf. State v. Norman, 151 N.J. 5, 23 (1997); State v. Bellucci, 81 N.J. 531, 538 (1980). When an attorney operates under a conflict of interest, "[t]he resulting representation may be more harmful than the complete absence of a lawyer." Bellucci, supra, 81 N.J. at 538.
In this light, a decision on a motion to disqualify counsel presents a legal question. Twenty-First Century Rail Corp. v. N.J. Transit Corp., 210 N.J. 264, 274 (2012). Accordingly, our "evaluation of an appeal from an order granting or denying a disqualification motion invokes our de novo plenary review." Ibid.
In the context of a prior representation, "the scope of an attorney's representation of a client is circumscribed by the Rules of Professional Conduct" (RPC). State v. Jimenez, 175 N.J. 475, 484 (2003). RPC 1.7 addresses client conflicts and is "designed to assure that, in representing a client, counsel's judgment is not impaired by divided loyalties or other entangling interests." Id. at 484-85. "The [RPCs] are also intended to further a broader societal interest--the integrity of the trial process itself." Id. at 485 (citation omitted). RPC 1.7 states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
In Jimenez, the Court considered the RPCs when deciding whether "an appearance of impropriety" existed because defense counsel represented a potential eyewitness in an unrelated matter during police investigation of the crimes for which the defendant was accused. Jimenez, supra, 175 N.J. at 479-81, 485-86. Although the 2004 Amendments to the RPCs eliminated the appearance of impropriety doctrine, see City of Atl. City v. Trupos, 201 N.J. 447, 464 (2009), Jimenez remains instructive in defining the scope of counsel's ethical proscriptions, that is:
The overriding issue in this case is whether [the attorney] is so impaired by her previous representation of [the former
client] that she will be unable to perform her adversarial role in representing defendant. That determination requires a consideration whether there is any reasonable prospect of asserting the defense of third-party guilt.
[Id. at 486.]
The Court explained "[t]he right to the defense of third-party guilt is of constitutional dimension." Ibid. (citing State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). See also Holmes v. South Carolina, 547 U.S. 319, 331, 126 S. Ct. 1727, 1735, 164 L. Ed. 2d 503, 513 (2006) (holding that state evidence rules excluding "third-party guilt" evidence based on the strength of the State's case violates a defendant's federal constitutional right "to present a complete defense" (citation and internal quotation marks omitted)). Accordingly, "a viable claim of third-party guilt," was found to trigger "an actual conflict" not merely an appearance of impropriety. Jimenez, supra, 175 N.J. at 489.
The facts in Jimenez revealed neither the State nor the defendant intended to call the former client to testify, ibid., which averted a situation where "defense counsel w[ould] have to cross-examine a former client who may incriminate himself and exculpate the present client." Id. at 489-90. The Court concluded the defense attorney's earlier representation of the former client and her current representation of the defendant presented "no actual conflict of interest or appearance of impropriety." Id. at 493.
Here, we need not decide whether defense counsel represented defendant and Alfred "in substantially related matters." See id. at 489. The record is void of any reasonable basis to conclude defendant's interest was materially adverse to Alfred's because counsel stated she had not represented Alfred regarding narcotics offenses in Trenton on October 23, 2009. See ibid. Similarly, here, while defendant intended to call Alfred as a witness, presumably to elicit favorable testimony, Alfred invoked his Fifth Amendment right against self-incrimination, and therefore, would not testify. Finally, the State had no information regarding Alfred and no facts revealed Alfred was involved in the CDS transactions for which defendant was on trial. Defendant does not now assert a claim of third-party guilt; he merely suggests a conflict arose because defense counsel had previously represented Alfred.
Having considered the record, we reject defendant's claims, and conclude no additional facts regarding defense counsel's prior representation of Alfred were necessary or dispositive. No concurrent conflict of interest arose warranting counsel's disqualification. Defendant's claim an "appearance of impropriety" existed because he suggested Alfred may be called as a witness and counsel previously represented him in unrelated criminal matters is legally insufficient. There is no basis to conclude defendant's interests are materially adverse to Alfred's requiring counsel's disqualification. The claim is rejected.
For these same reasons, we also reject defendant's claim of ineffectiveness. Again, no facts tie these assertions to defense counsel's prior representation of Alfred. The claims reflect defendant's dissatisfaction or disagreement with counsel's strategy. However, "a court may not require the Public Defender to assign new counsel to a defendant who was dissatisfied with the attorney assigned to represent him, absent a showing of 'substantial cause.'" Coon, supra, 314 N.J. Super. at 438 (quoting State v. Lowery, 49 N.J. 476, 489-90 (1967) and State v. Wiggins, 158 N.J. Super. 27, 34 (App. Div. 1978)). "Disagreement over defense strategy does not rise to the level of good cause or substantial cause." Ibid. (citing State v. Crisafi, 128 N.J. 499, 518 (1992)). The appearance of impropriety requires "'something more than a fanciful possibility' and 'must have some reasonable basis.'" State v. Murray, 345 N.J. Super. 158, 173 (App. Div. 2001) (quoting In re Opinion No. 653, 132 N.J. 124, 132 (1993)), certif. denied, 172 N.J. 179 (2002).
Defendant's claim of ineffective assistance asserted prior to trial was broadly stated and lacked specificity. He did not allege confidentiality was breached or trial tactics were compromised. Counsel was prepared for trial and ably represented him. We find no basis to require counsel disqualification because a conflict of interest should have been ordered. This determination does not preclude defendant from properly asserting claims for post-conviction relief, if warranted.
B.
Next, defendant contends his conviction was improperly based on Detective Schiaretti's alleged opinion testimony "derived from prior experiences in other, unrelated cases" not facts and circumstances of criminal activity observed. Defendant attacks Detective Schiaretti's description of events suggesting the officer impermissibly testified on matters reserved for an expert when he interjected his prior experiences on which he maintains the jury inferred his guilt. This claim is rejected.
Initially, we note no objection to the testimony was raised. Consequently, defendant must demonstrate plain error that is, error which is "clearly capable of producing an unjust result." R. 2:10-2. See also State v. Macon, 57 N.J. 325, 337 (1971). Reversal of a defendant's conviction would be required only if the error raises "a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (brackets omitted) (citation and internal quotation marks omitted). See also State v. Daniels, 182 N.J. 80, 95 (2004).
Detective Schiaretti was not qualified to testify as an expert, rather his testimony was limited to explain the facts and circumstances leading to defendant's arrest. Detective Schiaretti testified "based on my training and experience, past surveillance that I've done, it's common for people who engage in illegal narcotics activity to meet people in cars, sit in the car briefly, maybe drive around the block, drop them back off, while they conduct the drug sale." He then related his observations of defendant. Although the comment, standing alone and removed from the context of surrounding testimony, is a statement of expertise, not observation, we conclude there was no reversible error.
The cited prefatory comments explained why defendant raised Detective Schiaretti's suspicion; they were not factual support of defendant's guilt. See State v. McLean, 205 N.J. 438, 458- 460 (2011) (explaining lay opinion may be permissible to aid the fact finder in understanding the witnesses testimony so long as it omits testimony of what the witness "believed" or "thought"). Further, the comments did not include testimony as to the ultimate outcome. See State v. Smith, 436 N.J. Super. 556, 574 (App. Div. 2014) ("Although New Jersey courts have permitted police officers to testify as lay witnesses, the Rule does not permit a witness to offer a lay opinion on a matter not within the witness's direct ken . . . and as to which the jury is as competent as he or she to form a conclusion." (brackets omitted) (citation and internal quotation marks omitted)). Finally, although the statement exceeds a recitation of factual events by commenting on the detective's training and experience, its admission was harmless, in light of Detective Perea's expert testimony, which included that narcotics transactions are conducted "in cars" and involve "tak[ing] a ride around the corner." R. 2:10-2.
C.
In a different argument regarding Detective Schiaretti's testimony, defendant cites the detective's testimony stating he belonged to a unit "designed to combat street-level drug and gang activity." Defendant argues the detective "gratuitously interjected the term 'gang' into the jury deliberations" in an effort to "persuade jurors with passion and prejudice," and improperly attacked his character. This claim is specious.
During Detective Schiaretti's direct examination, the following colloquy occurred with the prosecutor, to which no objection was made:
Q: Who[m] do you work for, sir?
A: The City of Trenton Police Department.
Q: In what capacity?
A: I am a detective in the Trenton Anti-Crime unit.
. . . .
Q: What is that unit; what is it about?
A: It's a street-crime unit. It's designed to combat street-level drug and gang activity.
Q: Okay. Would you say it's fair to say that it's primarily a narcotics unit?
A: Yes.
Contrary to defendant's argument, the statement does not present evidence suggesting defendant was affiliated with or maintained membership in a gang. Rather, Detective Schiaretti simply described the police unit for which he worked. This single reference to gangs, in describing the task of the unit to which he belongs, cannot be contorted to suggest Detective Schiaretti implicated defendant in gang activity. We conclude this innocuous comment, which did not even elicit an objection, was not capable of misleading the jury or producing an unjust result. R. 2:10-2.
D.
Defendant next maintains his due process rights were violated by erroneous jury instructions regarding the distribution of narcotics. The challenges are raised for the first time on appeal, constraining our review to discern the existence of plain error, R. 2:10-2, which in the context of a jury charge, is a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). "Not any possibility of an unjust result will suffice." State v. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting Macon, supra, 57 N.J. at 336), certif. denied, 195 N.J. 522 (2008). Rather, "[t]he possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid.
Here, the trial judge instructed the jury on the offense of possession of CDS with intent to distribute, reciting the model jury charge. See Model Jury Charges (Criminal), "Possession of a Controlled Dangerous Substance with Intent to Distribute" (2014). Additionally, the trial judge explained "distribute" means "the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance."
Defendant argues the facts here necessitated a jury charge on "joint possession" because there were other occupants in the Pontiac. He maintains the failure to instruct the jury permitted it to find defendant intended to distribute CDS to the other passengers in that vehicle; however, intent to distribute "cannot be established on the basis of the sharing of drugs between or among joint possessors." State v. Lopez, 359 N.J. Super. 222, 234 (App. Div.), certif. granted in part sub. nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003). We reject defendant's argument of error.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). See also State v. Fair, 45 N.J. 77, 93 (1965) (finding "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").
The plain error standard of R. 2:10-2 applies to our review of the charge; we must assure a claimed defective charge was consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction must be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
Defendant does not identify specific circumstances to support his claim a joint possession charge should have sua sponte been included. The passengers in the Pontiac were not charged and the other putative buyer, Alfred, successfully walked away. No facts implicate the vehicle's occupants as joint possessors: they were not viewed handling the drugs or holding drug paraphernalia when police stopped them; no facts suggest they obtained CDS; and no evidence revealed a relationship with defendant outside a possible commercial transaction. Moreover, defendant alone exercised control over the phencyclidine as well as the laced cigarettes. Only he was viewed by police destroying evidence by pouring the phencyclidine on the car floor. Further, the State's expert discussed the quantity of CDS as indicative of distribution rather that personal use. In summation, considering the totality of the circumstances, nothing shows the other vehicle occupants were gathered to share use of the CDS. See State v. Morrison, 188 N.J. 2, 19 (2006) (stating a determination between actual distribution and joint possession is "a fact-sensitive analysis based on the totality of circumstances"). We find no error.
Citing the same instruction, that is, "distribute" means "the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance," defendant also argues the trial judge "erroneously injected a theory of attempt into the case and never defined what constitutes an attempt[.]" We reject this claim as meritless. R. 2:11-3(e)(2).
Defendant next challenges the charge regarding constructive possession, a contention raised for the first time on appeal. Arguing "[c]onstructive possession . . . requires an intentional control over an item, not merely the ability to exercise such control," defendant seeks a new trial because the court's instructions did not clearly present the law. We disagree.
"[A] person has constructive possession of 'an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" Morrison, supra, 188 N.J. at 14 (quoting State v. Spivey, 179 N.J. 229, 236 (2004). Further, constructive possession involves the ability to assert direct control over a particular item. See State v. Schmidt, 110 N.J. 258, 271 (1988) ("These concepts of possession involve the 'capacity' to maintain control of and the 'ability to affect' the item during a span of time.").
Contrary to defendant's contention, constructive possession does include the ability to exercise control over an item. The judge properly followed the model charge. See Model Jury Charge (Criminal), "Constructive Possession" (2014). We conclude the instructions were neither capable of confusing nor misleading the jury.
E.
The last two challenges attack the denial of defendant's motion to suppress evidence and for acquittal. Defendant argues the evidence should have been suppressed because the police lacked probable cause to justify their search. He also maintains the State's evidence was "wholly insufficient" to sustain charges for possession of CDS and possession with intent to distribute because police seized phencyclidine from a car defendant neither owned nor drove. These arguments are unavailing.
When considering a challenge to a trial court's ruling on a motion to suppress evidence our review is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We are obliged to "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) (citation and internal quotation marks omitted).
"It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 172 N.J. 178 (2002).
Probable cause has been defined as a well-grounded suspicion that a crime has been or is being committed, and as a reasonable ground for belief of guilt. It is more than a mere suspicion of guilt, [but] less than evidence necessary to convict a defendant of a crime in a court of law. It is a fluid concept — turning on the assessment of probabilities in particular factual contexts and addresses the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Last, [i]n determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer.
[State v. Gibson, 218 N.J. 277, 292-93 (2014) (alteration in original) (citations and internal quotation marks omitted).]
During the suppression hearing, testimony from Sergeant Zappley and Detective Schiaretti was presented by the State. In his written opinion, the motion judge found this testimony, along with defendant's conduct, supported a reasonable suspicion to stop the vehicle, search it to preserve evidence and, ultimately, arrest defendant.
The hearing also presented testimony regarding an incident on October 8, 2009 which resulted in defendant's arrest. These facts were not relevant to the charges tried in this matter.
Surveillance was established after police received a tip from a proven reliable, confidential informant stating defendant would be selling phencyclidine from his residence located on West State Street. Observations of defendant corroborated the tip, making the informant's information sufficiently reliable. See State v. Sullivan, 169 N.J. 204, 213-14 (2001) (discussing a two pronged test prior to the acceptance of an informant's tip, including proof of the informant's knowledge and veracity of the facts related). Police then observed defendant during two distinct events, each suspected to be hand-to-hand drug sales. During the transaction immediately prior to his arrest, the police identified the driver as a known phencyclidine user, see State v. Williams, 117 N.J. Super. 372, 375-76 (App. Div.), aff'd, 59 N.J. 535 (1971) (recognizing that associating with known drug offenders is a legitimate factor in assessing probable cause, especially where corroborating circumstances are present), and observed an exchange with a second heavyset male who arrived on foot. Taken together, the facts sufficiently provide a legal basis for police to approach the vehicle and conduct an investigatory stop. See State v. Pineiro, 181 N.J. 13, 25 (2004) ("[P]olice may rely on behavior that is consistent with innocence as well as guilt in finding reasonable and articulable suspicion to conduct an investigatory stop.").
The next series of events, when viewed in the totality of all circumstances, presented a well-grounded suspicion of criminal activity, establishing probable cause to arrest and search defendant. Defendant ignored commands from police to exit the vehicle; instead locking the Pontiac doors. He was viewed pouring onto the car floor, the contents of a bottle that police believed was phencyclidine. The motion judge properly found police had probable cause to suspect evidence of a crime was being destroyed. See Williams, supra, 117 N.J. Super. at 376 (finding probable cause when police saw defendant in a high crime area talking to a known drug dealer and, as police approached discarded a package, later determined to contain CDS).
These facts further demonstrate exigent circumstances requiring immediate police action to search the Pontiac in the area where defendant was sitting and justify the warrantless search and seizure of CDS and other contraband from the vehicle. A warrantless search is justified by exigent circumstances where "the search is supported by probable cause and is necessary to prevent the disappearance of the suspect or of evidence, and where the circumstances fail to permit the searching officer sufficient time to obtain a warrant." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989). Here, the circumstances required action to preserve the liquid CDS before defendant was able to completely discard it onto the vehicle's floor. Seizure without the opportunity to obtain a warrant was the only option available to secure the contraband. See id. at 514. ("[P]robable cause existed for the police to believe that defendant had engaged in a narcotics transaction and that there was insufficient time in which to procure a warrant because of the likelihood that evidence on [] defendant's person would be consumed, hidden or sold."). We conclude defendant's motion for suppression was properly denied.
Next, defendant moved for acquittal, arguing no CDS or contraband was found on his person, but located in a car that he neither owned nor drove. This argument seeks to ignore the evidence supporting defendant's guilt, presented by the State.
We apply the same standard as the trial court when reviewing a decision denying a motion for acquittal. State v. Pickett, 241 N.J. Super. 259, 264 (App. Div. 1990). We "determine 'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (alteration in original) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).
After assessing the State's evidence, the trial judge stated:
Based on the testimony of Detective Sergeant Zappley, Detective Schiaretti, I conclude that a jury could find [] [d]efendant is guilty of all charges, the possession, the possession with the intent to distribute and tampering with the physical evidence and also resisting arrest.
There was ample testimony with respect to the possession by [defendant] of the [phencyclidine], possession of the cigarettes, which were laced with [phencyclidine], the bottle upon which was used to dip cigarettes.
In addition, the number of cigarettes that were on the floor would suggest, looking at this in the light most favorable to the State, that [defendant]'s purpose was to sell or distribute those laced cigarettes, laced with [phencyclidine].
The tampering with the physical evidence, there was sufficient testimony presented by both Zappley and Schiaretti that [defendant] poured a vial or container onto the floor of the car on the carpet or the floor mat, which was later examined and tested to have trace amounts of [phencyclidine].
As to the resisting arrest, there was testimony by both officers that [defendant] refused to come out of the car upon request. He refused to open up the car door upon request and had to be physically pulled out of the car.
Consequently, there is sufficient evidence presented by the State upon which a jury could reasonably conclude that [defendant] is guilty of all of the offenses charged.Further, the State's expert provided information regarding street drug sales of phencyclidine allowing the jury to reasonably conclude defendant possessed the phencyclidine with the intent to distribute.
At the close of the State's case, we determine ample evidence on each element of the charged offenses was presented to allow the jury to find guilt beyond a reasonable doubt. The fact defendant did not own or operate the vehicle is immaterial and does not lessen the State's proofs. Accordingly, we conclude the trial judge properly denied defendant's motion for a judgment of acquittal. See Reyes, supra, 50 N.J. at 458-62.
III.
Defendant's final challenge attacks his sentence as excessive. He contends the State arbitrarily moved for an extended term sentence, the trial judge improperly weighed the aggravating and mitigating circumstances, and an excessive lengthy term was imposed for a relatively insignificant offense.
N.J.S.A. 2C:43-6(f) provides:
A person convicted of . . . possessing with intent to distribute any . . . controlled substance [] under N.J.S.A. 2C:35-5, . . . who has previously been
convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.A. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court . . . .Generally, the prosecutor need only show that the defendant had a prior conviction for one of the drug offenses enumerated in N.J.S.A. 2C:43-6(f). State v. Thomas, 188 N.J. 137, 149-50 (2006). The State has the burden to establish eligibility for an extended term by a preponderance of the evidence. State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.), certif. denied, 164 N.J. 562 (2000).
A decision to seek an extended term is governed by guidelines adopted by the Attorney General in order to render the statute constitutional. State v. Lagares, 127 N.J. 20, 32 (1992). These guidelines provide waiver of an extended term may occur if: "[D]efendant's prior record indicates only convictions that are extremely remote, and the State determines that there is no reason to believe that defendant derived a substantial source of income from criminal activity at any time. . . .'" Irrizary, supra, 328 N.J. Super. at 203 (alterations in original) (quoting State v. Kirk, 145 N.J. 159, 169 (1996)). "[B]efore judicial intervention is warranted in overturning the prosecutor's decision to seek an extended term under the guidelines," id. at 204, the defendant must meet the heavy burden of proving "that a prosecutor's decision to deny leniency constituted an arbitrary and capricious exercise of discretion." Lagares, supra, 127 N.J. at 33.
In this matter, defendant's first drug offense occurred in 1987. In July 1990, defendant was sentenced for convictions of possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(7). Thereafter, he has been charged and convicted of numerous indictable offenses including, aggravated assault against a police officer, aggravated assault, weapons offenses, resisting arrest, theft, burglary, and receiving stolen property. He has other drug offenses, including distribution charges, and numerous disorderly persons offenses.
Moreover, the assertion that he did not derive "a substantial source of income" from CDS distribution is unsupported. There is no evidence defendant earned income other than from narcotics sales. Accordingly, the State's decision to seek an extended prison term was supported by a preponderance of the evidence and, therefore, not arbitrary.
We also reject the suggestion the trial judge improperly weighed and balanced applicable aggravating and mitigating factors. Defendant suggests deterrence, N.J.S.A. 2C:44-1(a)(9), was inapplicable and asserts mitigating factors one, N.J.S.A. 2C:44-1(b)(1) ("defendant's conduct neither caused nor threatened serious harm") and two, N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"), were improperly omitted. We are not persuaded.
Review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014). A sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation and internal quotation marks omitted).
If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). An imposed sentence, entered in accordance with statutory sentencing guidelines, should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
In this matter, the trial judge found the existence of three aggravating factors: number three, the risk that defendant would commit another offense; number six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted; and number nine, the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6), (9). In so doing, the judge reviewed defendant's "significant criminal history," which began more than twenty years earlier. For an extended period during that time, defendant had no indictable offenses, but again resumed criminal conduct and was twice arrested for drug distribution and other offenses in October 2009, including this matter. The judge found mitigating factor eleven applied, N.J.S.A. 2C:44-1(b)(11), as hardship would result to defendant's dependents, including some who were ill and others who suffered permanent disabilities. Balancing the aggravating and mitigating factors, the trial judge concluded "the aggravating factors are so strong in my mind, I find that the aggravating factors substantially outweigh the mitigating factors."
A judge's inclusion of factor nine, the need for deterrence, when imposing sentence
invokes [t]he need for deterring the defendant and others from violating the law. The sentencing court's determination is a qualitative assessment of the risk of recidivism, but also involve[s] determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history. Deterrence has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing, and is the key to the proper understanding of protecting the public. [D]emands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense.Implicit in a sentencing court's assessment of a defendant's need for deterrence is "a qualitative assessment that we want and expect the court to make." Thomas, supra, 188 N.J. at 153.
[State v. Fuentes, 217 N.J. 57, 78-79 (2014) (citations and internal quotation marks omitted).]
Here, the court's consideration of aggravating factor nine was supported by the record. Defendant's prior record was formidable. He had convictions for both possession of CDS and possession of CDS with intent to distribute, as well as numerous convictions for other indictable offenses, including crimes of violence and weapons offenses. Although recognizing defendant had been conviction-free for a period of time, closer examination of his history reveals defendant was incarcerated for a portion of this period, arrested for drug distribution offenses and the charges were downgraded, and replete with numerous municipal offenses. Further, prior periods of incarceration had not deterred defendant, who at times committed new offenses shortly after being released from jail. Essentially, "there was [] reason to believe, in view of defendant's history of drug involvement, that his violations of the law would continue." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). The need to deter defendant's further criminal conduct could not be more necessary.
The rejection of mitigating factors one and two was also appropriate, as possession of CDS with intent to distribute "can be readily perceived to constitute conduct which causes and threatens serious harm." Id. at 435. We reject defendant's contention his crime was victimless. We determine the judge's inclusion of aggravating and mitigating factors was fully supported and his weighing justified.
Finally, we are not moved by defendant lamenting his fourteen-year sentence, with a seven-year period of parole ineligibility, was excessive and "comparable to sentences for such heinous crimes as sexual intercourse with children under 12, manslaughter, kidnapping while harming the victim, forcible rape, and robbery at gunpoint." He contends the sentence for an essentially victimless crime "shocks the judicial conscience."
After consideration and balancing of aggravating and mitigating factors, the imposed prison term was within the applicable range as extended, of ten to twenty years. See State v. Ghertler, 114 N.J. 383, 388 (1989) (sentencing guidelines are followed if the sentence falls within the range of minimum and maximum penalties enumerated by the state sentencing statute). Further, in light of the evidence, the sentence term is not unduly harsh or patently unreasonable. Roth, supra, 95 N.J. at 364-65. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." Tarver, supra, 272 N.J. Super. at 435 (citing Roth, supra, 95 N.J. at 364). That is not the case here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION