Opinion
DOCKET NO. A-6282-10T1
09-09-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ADENE SANON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Estrella Lopez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall and Nugent. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-02-00146. Joseph E. Krakora, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Estrella Lopez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Adene Sanon appeals from a judgment of conviction of five controlled dangerous substance offenses for which he was sentenced to an aggregate eight-year custodial term with four years of parole ineligibility. He contends there are three reasons he should receive a new trial: the court denied his pre-trial motion for a Wade hearing; the court overruled his objection to an improper hypothetical question the prosecutor posed to an expert witness during trial; and the prosecutor made unduly prejudicial remarks in his closing argument. Defendant also contends that his sentence is excessive. We affirm.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
I.
A.
Police officers arrested defendant, then age twenty, after he sold two vials of cocaine to an undercover narcotics officer in Elizabeth. A Union County grand jury subsequently charged him in a seven-count indictment with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5(a)(1) and -(b)(3) (Count Two); third-degree possession with intent to distribute a CDS, cocaine, within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); second-degree possession with intent to distribute a CDS within five hundred feet of a public park, N.J.S.A. 2C:35-7.1(a) (Count Four); third-degree distribution of a CDS, cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (Count Five); third-degree distribution of a CDS, cocaine, within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Six); and second-degree distribution of a CDS, cocaine, within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a) (Count Seven).
Following indictment, defendant filed a motion to suppress the cocaine an undercover narcotics officer had seized from behind or under a pile of debris alongside of an abandoned, boarded-up house. Defendant also filed a motion for a Wade hearing to suppress the photographic identification made by the officer who purchased the cocaine from him. The court denied both motions. The court granted the State's pre-trial motion to dismiss Counts Three and Six of the indictment, the offenses relating to possession and distribution of CDS within 1000 feet of school property.
The case proceeded to trial and a jury found defendant guilty on all remaining counts. At sentencing, the court granted the State's motion for imposition of a mandatory extended-term sentence and sentenced defendant to the following custodial terms: Count One — three years; Count Two — eight years with four years' parole ineligibility; Count Four — eight years with four years' parole ineligibility; Count Five — five years; Count Seven - eight years with four years' parole ineligibility. The court merged Counts One, Two, and Four, and ordered that all sentences on all counts be served concurrently so that defendant's "aggregate sentence is eight years with four years of parole ineligibility." Defendant appealed.
B.
The State developed the following proofs at trial. Shortly before noon on September 19, 2008, Elizabeth Police Department Sergeant Todd Kelly supervised an undercover narcotics operation in the area of Jefferson Park. Other narcotics officers participating in the operation included Gino Quelopana and Athanasios Mikros. All of the officers wore plain clothes and drove unmarked cars.
Officer Quelopana drove to the corner of Madison Avenue and Anna Street where he stopped his car and briefly conversed with defendant through the front passenger window. Defendant walked away from the car, walked into an alley along the side of an abandoned, boarded-up house at 455 Madison Avenue, and disappeared from Officer Quelopana's sight. Defendant emerged from the alley approximately thirty seconds later and exchanged two vials of cocaine to the undercover officer for twenty dollars. The officer specifically noted defendant's "very distinctive" clothing, a "dark sweat jacket, black, with a skeleton imprint on it."
After completing the purchase, officer Quelopana left the area, drove to a location where other officers were waiting for him, turned over the drugs, and signed and dated a photograph of defendant. He estimated that he signed the photograph approximately twenty or twenty-five minutes after purchasing the cocaine from defendant.
While defendant was selling the cocaine to Officer Quelopana, Sergeant Kelly was watching the transaction from another car parked approximately thirty feet from Quelopana's car. Sergeant Kelly observed defendant walk along the side of the abandoned house at 455 Madison Avenue, approach a pile of debris "about halfway back there," bend down, and retrieve a black plastic bag. Defendant removed something from the bag, replaced the bag at the bottom of the pile, returned to Madison Avenue, and made an exchange with Officer Quelopana. Sergeant Kelly radioed to two other officers, one of whom was Officer Mikros, to drive to the police station and return with a marked patrol car to arrest defendant. Sergeant Kelly later went into the alley and picked up the "stash," a black plastic bag containing a clear zip-lock bag with a butterfly imprinted on it, which in turn contained twenty-one vials of cocaine.
Officer Mikros also watched defendant speak to Officer Quelopana, leave and walk out of view along 455 Madison Avenue, emerge, return to Officer Quelopana's car, and make an exchange with the officer. In response to Sergeant Kelly's order, Officer Mikros returned to headquarters, which was two blocks away, met another detective, switched vehicles, and returned to arrest defendant.
As Officer Mikros and his partner drove back toward the park along Jefferson Avenue, they stopped at a traffic light where they received a communication from Sergeant Kelly that defendant was crossing the park and going towards Anna Street. As Sergeant Kelly said he was losing sight of defendant, Officer Mikros told the Sergeant that he, Mikros, had defendant in his view. Officer Mikros watched as defendant entered a Mini Mart on Jefferson Avenue. The officers drove to the store, parked, and walked inside, where defendant, who was holding a bag of potato chips and some juice, was waiting for a pastrami sandwich he had ordered. They arrested defendant, who had fifteen dollars but did not have a twenty-dollar bill. Officer Mikros photographed defendant and then drove to a location where he met Officer Quelopana, who identified it as the photo of the person who sold him the drugs.
The State presented the testimony of a chemist to prove that the vials defendant sold to Officer Quelopana and the vials in defendant's "stash" were cocaine. The State also called as a witness Detective Vito Colacitti, who testified without objection "as an expert in the field of narcotics and narcotics distribution." The prosecutor asked Detective Colacitti the following hypothetical question:
Assume that an individual is observed in a high crime area. Assume that an undercover police officer in plain clothes approaches the said individual in an undercover car. Assume further that the individual approaches the car and asks the officer if he needs coke. Assume the individual walks away into the yard of a vacant house and reappears moments later with two vials of cocaine and hands them to the officer. Assume the officer then gives the individual $20. Assume the officer drives away and immediately meets an officer waiting at a predetermined location and hands him the CDS. Assume the individual is under constant supervision by other officers, one of which goes to the area next to the vacant house and finds a stash of CDS, which consists of 21 plastic capped glass vials containing cocaine.
Assume the individual is followed to a convenience store close by and arrested. Assume he was found with $15 and two cell phones. Based upon those facts I have given to you in the hypothetical, do you have an opinion as to whether the man in the hypothetical question possessed those narcotics for personal use or for distribution purposes?
Detective Colacitti responded that "the subject in the hypothetical possessed . . . the CDS with intent to distribute same." After six more questions and answers, the prosecutor completed the detective's direct examination. Before beginning cross-examination, defense counsel asked for a sidebar, where, for the first time, he raised the following objection to the hypothetical:
Because defendant has not raised the issue of whether the State used the narcotics expert to "tell [the] jury that which [was] obvious," State v. Sowell, 213 N.J. 89, 102 (2013), we do not address whether the expert's testimony crossed the line between permissible and impermissible expert testimony in narcotics cases.
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One of the factors considered in the hypothetical was the fact that the cell phon—the defendant had two cell phones. There's been nothing entered into evidence -- no witness testimony that he was arrested and searched with two cell phones. I didn't want to object because it is a minor point, but it is a point nonetheless. I would object to that assumption that the State has made is not in evidence.Later during the sidebar defense counsel repeated: "Well, I would — I would say that my objection is that one of the factors that was considered in the hypothetical, albeit a minor one, but one factor nevertheless, was not entered into evidence."
Following the close of the evidence, the prosecutor and defense counsel each delivered their summations without objection. As we have already explained, the jury found defendant guilty on all five counts for which he was tried.
II.
In this appeal, defendant argues the following points: POINT ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATE'S [sic] CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE DENIAL OF DEFENDANT'S MOTION TO HOLD A WADE HEARING WHERE IDENTIFICATION WAS A CRITICAL ISSUE AND THERE WAS EVIDENCE THAT THE ONE-ON-ONE PHOTOGRAPHIC SHOW-UP IDENTIFICATION WAS IMPERMISSIBLY SUGGESTIVE.POINT TWO
THE TRIAL COURT COMMITTED REVERSIBLE ERROR, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATE'S [sic] CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE DENIAL OF DEFENDANT'S OBJECTION TO A HYPOTHETICAL QUESTION POSED TO AN EXPERT THAT INCORPORATED FACTS NOT IN EVIDENCE AND THE COURT'S FAILURE TO TIMELY INSTRUCT THE JURY THAT EXPERT OPINIONS MAY ONLY BE FORMED ASSUMING FACTS AND CIRCUMSTANCES ADDUCED AT TRIAL.POINT THREE
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATE'S [sic] CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHERE THE PROSECUTOR MADE IMPROPER AND PREJUDICIAL REMARKS ON SUMMATION AND THE COMMENTS HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST RESULT. (NOT RAISED BELOW).POINT FOUR
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THEPOINT FIVE
UNITED STATE'S [sic] CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF ERRORS. (NOT RAISED BELOW).
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant first contends the court erroneously denied his motion for a Wade hearing. He argues that he was entitled to the hearing for three reasons. First, Officer Quelopana's testimony focused more on the seller's clothing than his physical appearance. Second, the "interchange between the seller and Officer Quelopana was extremely brief," lasting only "a couple of minutes." Third, Officer Mikros presented Officer Quelopana with only one photograph. We are unpersuaded by these arguments.
Although the Supreme Court revised the analytical framework for determining the admissibility of out-of-court identification procedures in State v. Henderson, 208 N.J. 208, 288 (2011), those provisions do not apply here because defendant was tried before Henderson and the decision is not retroactive. Id. at 302. Consequently, Officer Quelopana's pretrial identification in this case was admissible unless it resulted from a suggestive procedure that created a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).
Defendant was not entitled to a Wade hearing simply because he requested it. To obtain a hearing to challenge an out-of-court identification, a defendant must make a threshold showing of "impermissive suggestiveness." State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). When deciding whether an identification procedure is impermissibly suggestive, a court must determine "whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). That determination is informed by the totality of the circumstances. Ibid.
Even if an identification procedure is impermissibly suggestive, it is admissible if it is "nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). "The essential question is whether there was sufficient reliability in the identification[] to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." State v. Adams, 194 N.J. 186, 204 (2008). When making that determination, a court must consider "[t]he totality of the circumstances," Herrera, supra, 187 N.J. at 504, including "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Adams, supra, 194 N.J. at 204 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
Considering the totality of the circumstances in this case, we reject defendant's contention that the court's denying him a Wade hearing constituted reversible error. Officer Quelopana had two distinct face-to-face interactions with defendant, during which he spoke with defendant under circumstances that did not include the stress generally experienced by the victim of a crime. There is no evidence that the officer encountered any individuals he could have confused with defendant after buying the cocaine but before initialing defendant's photograph twenty or twenty-five minutes later. Defendant wore a
distinctive sweatshirt and there was no evidence that anyone else in the vicinity wore a similar sweatshirt during the episode that ended with defendant's arrest. Thus, even if the court erred by denying defendant a hearing on the basis that Officer Quelopana was shown only a single photograph, there was sufficient reliability in the officer's identification "to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." Adams, supra, 194 N.J. at 204.
Moreover, defendant had been observed and identified by others. Officer Mikros watched the sale take place, and he noted that defendant was "wearing a skeleton jacket with an imprint — a black hooded jacket with an imprint on it, skeleton imprint." Sergeant Kelly, who watched the drug sale from a car about thirty feet away, also noted defendant's clothing: "a dark black type hooded sweat jacket with a skeleton design on the arms and chest and hood." After the sale was complete, the sergeant continued to observe defendant as he walked through Jefferson Park. As the sergeant was about to "los[e] sight of" defendant, Officer Mikros maintained sight of him. Mikros then arrested defendant and took his photograph. Thus, the trial testimony established that the police never lost sight of defendant from the time officers first began watching him until they arrested and photographed him. Under those circumstances, the trial testimony concerning Officer Quelopana's identification of defendant's photograph was a mere formality. See Wade, supra, 388 U.S. at 241 n.33, 87 S. Ct. at 1940 n.33, 18 L. Ed. 2d at 1165 n.33. It was certainly not reversible error.
Defendant argues in his second point that the trial court committed reversible error by failing to sustain his objection to the reference to cell phones in the hypothetical question the prosecutor asked the State's CDS expert. Defendant's failure to contemporaneously object to the hypothetical creates a fair inference that, "in the context of the trial[,] the [alleged] error was actually of no moment." See State v. Ingram, 196 N.J. 23, 42 (2008) (internal quotation marks and citations omitted). That inference is borne out by defendant's own characterization of the issue as "a minor point." The error was certainly not "clearly capable of producing an unjust result." R. 2:10-2.
Defendant's remaining points are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following. Defendant did not object to those remarks in the prosecutor's summation that he now claims deprived him of a fair trial. The absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. See State v. Ramseur, 106 N.J. 123, 323 (1987), cert. denied sub nom. Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). That is the case here. Having reviewed the remarks that defendant challenges in the context of the entire trial, we conclude that, even if there was error, it was not "clearly capable of producing an unjust result[.]" R. 2:10-2.
Nor do we find defendant's sentence manifestly excessive. The trial court's findings of aggravating and mitigating factors are supported by the record, State v. O'Donnell, 117 N.J. 210, 216 (1989), and the sentence does not "shock the judicial conscience" in light of the particular facts of the case; State v. Roth, 95 N.J. 334, 364-65 (1984). Because the trial court "exercise[d] discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess its decision. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks and citations omitted).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION