Opinion
DOCKET NO. A-3054-10T1
04-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH LEE, a/k/a JAMES LEE, JAMES JEANNYS, JAMAR FARMAR, JAMES JOY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1202.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
A Hudson County Grand Jury returned an indictment charging defendant Joseph Lee with possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1) (Count One); possession with intent to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Three); possession with intent to distribute a controlled dangerous substance within a school zone, contrary to N.J.S.A. 2C:35-7 (Count Four); distribution of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Five); and distribution of a controlled dangerous substance within a school zone, contrary to N.J.S.A. 2C:35-7 (Count Six). After a jury trial, defendant was convicted on all counts. The trial judge merged Counts One, Three, Four, and Five into Count Six. Defendant was then sentenced on Count Six to a term of ten years in prison with five years parole ineligibility.
I.
We briefly summarize the procedural history and the facts based on the evidence presented at trial.
On March 29, 2009, Officer Anthony Goodman of the Jersey City Police Department narcotics unit, was surveilling the area around Fulton and Ocean Avenues from inside an undercover van. Using binoculars, Goodman observed defendant standing on the corner with several other males. Goodman watched defendant cross the street and sit on the porch at 54 Fulton Avenue.
Approximately ten minutes later, co-defendant LaTrenda Thomas, who Goodman recognized as having purchased narcotics in the past, entered the area and spoke briefly with defendant. Defendant then left the porch and walked into the alley located between 52 and 54 Fulton Ave. Defendant returned and gave Thomas two vials with blue tops in exchange for money. Defendant then sat back on the porch. Thomas left the area, walking west on Fulton where she got into a waiting car and drove off.
Goodman described the vehicle to a perimeter unit and they effectuated a motor vehicle stop of the car. The car contained three occupants: a driver, co-defendant Eugene Chambers, and co-defendant Thomas. The occupants were advised of the reason for the stop, after which an officer searched Thomas and found a bag of heroin in her possession. Another officer searched Chambers and recovered two vials of cocaine from his pocket.
Goodman also described defendant to the perimeter unit, who then stopped and arrested defendant. A search of the backyard of 54 Fulton was conducted, and Goodman recovered a clear bag containing four vials of cocaine beneath the siding of the house. At the police station, defendant was found to be in possession of $120 in "various monetary denominations."
A jury trial was held from February 16 through February 24, 2010. Defendant was found guilty as charged. Following merger, defendant was sentenced to a term of ten years in prison with five years parole ineligibility. Defendant filed a notice of appeal on February 25, 2011.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
POINT II
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE ELICITATION OF IRRELEVANT AND HIGHLY INFLAMMATORY TESTIMONY BY THE PROSECUTOR DURING REDIRECT EXAMINATION OF HIS OWN WITNESS.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL AS WELL AS IN DENYING DEFENSE COUNSEL'S MOTION FOR RECONSIDERATION.
POINT IV
THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE TEN YEAR EXTENDED TERM WITH THE MAXIMUM POSSIBLE FIVE YEAR PAROLE DISQUALIFIER IN CONJUNCTION THEREWITH.
II.
We turn first to defendant's contention, raised for the first time on appeal, that the prosecutor made prejudicial comments during the State's summation which inferred that defendant had previously sold drugs in the same area. During summation, the prosecutor stated:
[Goodman] wasn't watching Mr. Lee, he was watching an area and waiting to see if anything would happen. He wasn't targeting Mr. Lee, he was targeting people who were selling drugs, and it became apparent that Mr. Lee was someone who was selling drugs and then he became the target of an investigation.Defendant asserts that these comments amounted to a denial of his right to a fair trial.
. . .
There is the fact of not getting the story straight between these two people and yet it overlaps that he sold these two vials and the fact that she has a criminal history that Mr. Lee was selling drugs to people who buy drugs. That means that he shouldn't [.]
Since this assertion was not raised before the trial court, we must determine whether the statements were "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). In considering this issue, we note that "[b]oth the prosecutor and the defendant are allowed wide latitude in summation, but [they] are confined to the facts in evidence and the reasonable inferences which may be drawn therefrom." State v. Perry, 65 N.J. 45, 47-48 (1974). Here, the prosecutor's comments constituted legitimate inferences from the facts and were not clearly capable of producing an unjust result.
We next address defendant's contention that the prosecutor's redirect examination of Thomas elicited testimony that was both inadmissible and prejudicial, and sufficiently damaging as to deny defendant his right to a fair trial.
On cross-examination, Thomas stated that part of her agreement with the State was that she would be admitted into a drug treatment program. On redirect, she was asked what was holding up her admission into the program. Thomas responded that she believed it was her medical condition. When the prosecutor asked Thomas how serious her medical condition was, defense counsel made a relevancy objection. The court allowed the question to which Thomas replied that she has "full blown AIDS."
Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); see also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). We discern no abuse of discretion in the judge's decision to allow the testimony, particularly since the issue of Thomas' entry into the program was first raised by defense counsel.
Defendant next argues that the trial court erred when it denied his motion for a new trial and motion for reconsideration, and further that the trial court improperly included additional counts of liability in the verdict sheet.
Defendant was charged with possession, possession with intent to distribute cocaine, and possession with intent to distribute cocaine within a school zone. The State maintained that defendant sold two vials of cocaine to Thomas which had come from defendant's "stash" hidden under the siding of the house at 54 Fulton Ave.
During the charge conference, the trial judge indicated he would charge the jury and prepare a verdict sheet which would enable the jury to distinguish the cocaine sold to Thomas from the stash cocaine. The judge did this by instructing the jurors to make separate decisions regarding the first three counts on the verdict sheet. Question 1A required the jurors to determine whether defendant possessed the stash of cocaine and question 1B asked the jurors whether defendant possessed the cocaine which was sold to Thomas. The same questions were asked with regard to the possession with intent to distribute and the possession with intent to distribute within a school zone. Defense counsel did not object to the judge's charge or the delineation on the verdict sheet.
Prior to the submission of the charges to the jury, defense counsel requested that the court enter a judgment of acquittal on all counts. That request was denied. The jury found defendant guilty of the charges related to the cocaine sold to Thomas, but not the cocaine in the stash location. Thereafter, defense counsel made a motion for a judgment of acquittal or a new trial, arguing that defendant's convictions were constitutionally defective since he was convicted of offenses not charged in the indictment. The indictment, unlike the jury charge, did not delineate between the cocaine sold by defendant and the cocaine from the stash.
The trial judge rejected defendant's contention that he could not be found guilty of the offenses related to the cocaine sold to Thomas even though he was found not guilty of possessing the stash cocaine. Accordingly, the trial judge denied defendant's request for a judgment of acquittal or new trial and subsequently denied defendant's request for reconsideration. As part of the motion for reconsideration, defendant argued that the court committed plain error by expanding the grounds available for the jury to find defendant guilty, thereby committing an "impermissible duplicity."
Before discussing defendant's contention, we emphasize that in State v. Gandhi, 201 N.J. 161, 196 (2010), the Supreme Court noted that "a verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. See State v. Reese, 267 N.J. Super. 278, 287 (App. Div.), certif. denied, 134 N.J. 563 (1993)."
"'Duplicity is the joining in a single count of two or more distinct and separate offenses.'" State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 21 (1984) (quoting United States v. Starks, 515 F.2d 112, 116-17 (3d Cir. 1975)). "The rule against duplicity protects defendant from prejudice." Ibid. As the Court explained:
"One vice of duplicity is that a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both. Conceivably this could prejudice the defendant in protecting himself against
double jeopardy. Another vice of duplicity is that a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both. Conceivably, this could prejudice the defendant in sentencing and in obtaining appellate review. A third vice of duplicity is that it may prejudice the defendant with respect to evidentiary rulings during the trial since evidence admissible on one offense might be inadmissible on the other. Joining conspiracy and substantive offenses in the same count present this vice in a particularly aggravated form, because of the admissibility of declarations made by coconspirators. Assuming such a joinder, and a general guilty verdict, there would ordinarily be no way of discerning whether the jury found the defendant guilty of the offense in proof of which such coconspirator's admissions were properly admitted. Finally, there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either. (Footnotes omitted.)"
[Id. at 21-22 (quoting Starks, supra, 515 F.2d at 116-17).]
These concerns, however, are not present in this case, and defendant has not explained how he was prejudiced by the charge or the verdict sheet. What we glean from defendant's arguments is that the charge and verdict sheet listed two different generic crimes in each respective count, namely possession of the stash cocaine and possession of the cocaine sold to Thomas. Defendant asserts that the charge and verdict sheet expand his liability by in effect charging two separate offenses. Defendant's assertion is erroneous. Each count only charges defendant with one crime -- a CDS offense.
The indictment and the verdict sheet, the particulars of which are primarily the focus of defendant's attack, tracked each applicable statutory offense. The indictment represented a pleading which could have been challenged on these grounds in a pretrial application or by way of a bill of particulars. Cf. State v. Mello, 297 N.J. Super. 452 (App. Div. 1997) (rejecting a challenge to an indictment asserting that it failed to specify the unlawful purpose for possession of a firearm). The criminal episode which formed the basis of the indictment and by extension the charge and verdict sheet, defendant's possession and sale of CDS to Thomas, supports the conclusion that defendant was not charged with two crimes but with two theories of one crime, a pleading methodology sanctioned by State v. Krieger, 285 N.J. Super. 146, 153 (App. Div. 1995) (reversing defendant's conviction because it was not merely alternative theories of a single crime that were pleaded in the counts but alternative crimes with disparate elements).
Defense counsel consented to the jury charge and the verdict sheet. Defense counsel did not make any pretrial motions, nor did defense counsel argue that the indictment, the charge, or the verdict sheet was wrong. The trial court went through each of the charges and, after the jury was charged, defense counsel made no objections. Contrary to defendant's assertions, neither the charge nor the verdict sheet added new charges or imposed additional liability. Whether defendant possessed the stash cocaine is an issue that is not implicated in this matter. Compare State v. Florez, 134 N.J. 570, 594-95 (1994) (holding that quantity of drugs possessed is material element of CDS offense), with State v. Edwards, 257 N.J. Super. 1, 4-6 (App. Div. 1992) (holding that nature and quantity of drugs possessed are not material elements of CDS offense); see also Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-14 (2012) (Cannel) (discussing split of authority on whether knowledge of nature, quantity, or value of illegal contraband is material element of offense).
Finally, we disagree with defendant's contention that his sentence was excessive. Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 608, 612 (2010).
In this case, the appropriate factors were applied and we discern no abuse of discretion by the trial judge. The trial judge properly took three aggravating factors into consideration: aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense; factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record; and factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. No mitigating factor was found. Further, defendant's three prior convictions for selling drugs support the application of the mandatory extended-term sentence under N.J.S.A. 2C:43-7(c). The sentence imposed does not shock our judicial conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION