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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5237-09T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES L. RANDALL,
Defendant-Appellant.
October 6, 2011
Submitted September 14, 2011 - Decided
Before Judges Lihotz and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Burlington
County, Indictment No. 08-09-1040.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown,
Designated Counsel, on the brief).
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Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent
(Jaclyn E. Fineburg, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant James L. Randall appeals from his conviction for second-degree possession of a controlled
dangerous substance (CDS) (cocaine) with intent to distribute on or within 500 feet of a drug-free school
zone and lesser included drug offenses. After merger, the trial court imposed an extended term of sixteen
years imprisonment, requiring eight years to be served prior to consideration of parole eligibility. Defendant
seeks reversal, maintaining he was denied a fair trial and his sentence was excessive. More particularly he
asserts:
POINT I
PROSECUTORIAL MISCONDUCT DEPRIVED MR. RANDALL OF A FAIR TRIAL
(NOT RAISED BELOW).
POINT II
THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER
AN OPINION ON THE ULTIMATE ISSUE BEFORE THE JURY THEREBY
PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
POINT III
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY
THAT THE POLICE WERE PATROLLING THE AREA OF MR. RANDALL'S ARREST
IN RESPONSE TO CITIZEN COMPLAINTS ABOUT DRUG ACTIVITY IN THE AREA
(NOT RAISED BELOW).
POINT IV
THE TRIAL COURT ERRED IN PERMITTING UNDULY PREJUDICIAL TESTIMONY
THAT THE LOCATION OF THE INCIDENT WAS A HIGH-CRIME AREA (NOT
RAISED BELOW).
POINT V
THE TRIAL COURT ERRED IN PERMITTING POLICE WITNESSES TO TESTIFY
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THAT THEY WERE FAMILIAR WITH THE SUSPECTED BUYER IN THIS CASE
FROM PRIOR CONTACT IN THE COMMUNITY (NOT RAISED BELOW).
POINT VI
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR
ACQUITTAL.
POINT VII
THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN
INSTRUCTION ON THE PROPER USE OF STIPULATIONS OF FACT (NOT RAISED
BELOW).
POINT VIII
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL
(NOT RAISED BELOW).
POINT IX
MR. RANDALL'S SENTENCE MUST BE VACATED AND REMANDED FOR
RESENTENCING (NOT RAISED BELOW).
POINT X
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY
EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS
AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT
RAISED BELOW).
We have considered each of the arguments in light of the record and the applicable law. We affirm.
These facts are taken from the trial record, which the jury relied upon to convict defendant. On June 24,
2008, at approximately 8 p.m., several Burlington City Police Department special enforcement unit (SEU)
police officers were conducting narcotics operations in a high-crime area of the city in response to
"numerous complaints from residents about open air narcotics trafficking." Detective Sergeant Joseph
Caruso and Patrolman Jeremy Bright patrolled the neighborhood around Mitchell Avenue Bridge and a
second team of SEU officers, Patrolman Wayne Comegno and Detective Bill Hunt, patrolled the city's
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adjacent New Yorkshire neighborhood.
From their unmarked van, Sergeant Caruso and Patrolman Bright observed defendant, who was operating a
white Pontiac Sunbird, stop his vehicle between the center and the right side of Mitchell Avenue just over
the bridge. Defendant was talking through the passenger window to a pedestrian, Brian Greer. Sergeant
Caruso recognized both men having been "familiar with [them] through prior contacts in the community."
The police watched Greer lean into the open passenger's side window and defendant's hand reach to touch
Greer's extended hand as the two exchanged an item. Sergeant Caruso "couldn’t quite see what the item
was," but believed he witnessed a "hand to hand [drug] transaction."
At that point, Sergeant Caruso and Patrolman Bright pulled within ten feet of defendant's car and exited
their van. The police advised defendant to place his hands in the air. Defendant complied. Sergeant Caruso
saw defendant held a "clear plastic sandwich baggie with a white rock substance in it." Patrolman Bright
also noticed defendant "was holding a bag in his hand" and that "[i]t looked like there was a white, off
white rock like substance in the bag." Sergeant Caruso removed defendant from his vehicle, handcuffed him
and placed him under arrest.
Greer attempted to walk away from the scene but was detained by Patrolman Comegno, who had been
called as back-up. Patrolman Bright patted Greer down and found nothing on his person, therefore Greer
was released.
Patrolman Comegno peered inside defendant's vehicle and "observed what I knew to be drug packaging
material on the passenger's side front seat." He saw
a decorative egg . . . almost like a Fabergé egg that was partially open as well
as . . . the clear plastic bag with the two smaller clear plastic bags inside, it was
immediately next to it as if the egg had been cracked open and that kind of was
laying right next to it.
Following defendant's arrest, a search of defendant's person revealed $174.73 and a search of defendant's
vehicle revealed a "mint tin can" containing "two separate clear plastic bags with suspected crack cocaine"
located on the front passenger's seat, and "[a] clear plastic bag with suspected crack cocaine," stuffed
between the driver's seat and the center console.
On September 23, 2008, a Burlington County grand jury issued Indictment No. 08-09-1040, charging
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defendant with: second-degree possession of a CDS with intent to distribute on or within 500 feet of certain
public property, N.J.S.A. 2C:35-7.1(a) (count one); third-degree possession of CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two); and third-degree possession of CDS, N.J.S.A. 2C:35-
10(a)(1) (count three).1
Judge Jeanne T. Covert presided over the three-day jury trial. In that proceeding, the judge read two
stipulations prepared by the State and defendant. The first introduced the official Burlington City map
designated by N.J.S.A. 2C:35-7(f) and -7.1, depicting the areas of drug-free school and public property
zones. Sergeant Caruso pinpointed the Mitchell Avenue Bridge area, which he stated was within 500 feet of
the Allen School basketball court and a Pop Warner football field. The second stipulation introduced a lab
testing report identifying the substances seized from defendant's car as cocaine, in amounts of 0.36 grams,
1.38 grams, and 0.40 grams. The stipulation also recited the evidence remained in the continuous chain of
police custody from the date of its seizure, June 24, 2008, to the date of trial.
The State presented testimony of Sergeant Caruso, Patrolman Comegno, and Patrolman Bright. Additionally,
Lieutenant Daniel Leon, Jr., a detective lieutenant for the Burlington County Prosecutor's Office, narcotics
unit, who was qualified as "an expert in the field of narcotics, specifically in the area of the distribution and
the marketing of illegal narcotics[,]" offered expert testimony regarding the use of crack cocaine, specifically
explaining the substance must be heated prior to ingestion. Lieutenant Leon also opined, based upon
hypothetical facts mirroring those presented at trial, that "an individual possessing that amount of CDS
under those circumstances would be possessed [sic] with the intent to distribute."
At the close of the State's direct evidence, defendant moved for a judgment of acquittal. R. 3:18-1. Judge
Covert denied the motion, finding the State presented sufficient evidence to satisfy its burden of proof on
all three charges in the indictment.
Defendant testified on his own behalf. On the night in question, he explained he was driving from a church
group function when a man he did not know, but later learned was Greer, stepped in front of his car on
Mitchell Avenue, leaned into the passenger side window, and asked for a ride. Defendant declined the
request as an unmarked police van pulled behind his car. The officers then exited the van with their
weapons drawn, and ordered him to put his hands in the air. Defendant complied with the police request
and stated, "there was nothing in my hands." Defendant also denied the police assertion that he had drugs
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in his car. When defendant was taken to the stationhouse, he saw Greer handcuffed to a bench. Following
his processing, defendant stated Greer was gone.
The jury returned a unanimous verdict, finding defendant guilty on all three charges. On January 22, 2010,
the State moved for the imposition of a discretionary extended term sentence as a persistent offender. The
trial judge examined the facts and granted the motion. Judge Covert applied aggravating factors (3), (6),
and (9) and mitigating factor (11). After merging counts two and three into count one, the trial judge
imposed an extended term of sixteen years imprisonment with an eight-year period of parole ineligibility.
This appeal ensued.
I.
Defendant identifies several remarks in the State's opening and closing statements, which he
maintains are patently egregious and thereby deprived him of a fair trial warranting reversal of his
conviction. Specifically, defendant argues the prosecutor's references to the "war on drugs" equated to "a
call to arms," enflaming the jury's passion and prejudice and eroding the jury's objective evaluation of the
evidence. He also maintains the prosecutor improperly revealed his personal opinion regarding defendant's
guilt and bolstered the credibility of the State's police witnesses.
Defendant lodged no objection to these comments; accordingly, we review them utilizing the plain
error standard. R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (noting the error must be "sufficient
to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have
reached"). In our discussion that follows, we recite the trial passages singled out by defendant.
A.
We first turn to references defendant suggests were designed to elicit a guilty verdict to aid law
enforcement in combating the "war on drugs." This phrase was first uttered in jury selection. Counsel had
agreed on narrative questions posed to prospective jurors as required by Supreme Court Administrative
Directive #4-07. The open-ended questions were taken directly from the model criminal voir dire inquiries
suggested by the directive. Specifically, counsel agreed jurors should be asked:
One, do you believe the criminal justice system is fair and effective? Please
explain. Two, how do you feel about the so-called war on drugs? For example,
do you think the amount of resources the government devotes to enforcing the
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criminal drug laws and prosecuting suspected offenders is too much, not enough,
or about right? Do you think resources could be more effectively used in other
ways to address the drug problem, and why do you feel this way?
The State's opening statement began by highlighting that each of the selected jurors was questioned
whether he or she "believe[d] that our criminal justice system is fair and effective" and emphasized "the
importance of what we're doing here today[.]" After discussing the charges against defendant, the
prosecutor stated:
We talked a lot about this so-called war on drugs in the voir dire questions. Well,
the City of Burlington has put together this special enforcement unit and they
are a proactive unit, mainly designed on street level crimes, specifically street
level controlled dangerous substance crimes.
Defendant asserts "the most egregious . . . comments were made during summation," citing the
prosecutor's remarks, which he argues were "designed to promote partisanship and divert the attention of
the jurors":
And in making your determination as far as the facts of the case[,] what
occurred . . . on that evening, credibility becomes an important factor. Because
you have to have believed what people were saying in order to find your facts.
Now I also told you that Judge Covert, she's going to give you the law. And once
you go in the back you're going to join those two, you're going to join what you
find happened on that night and you're going to join it with the law and you're
going to arrive at a verdict.
And I told you in the beginning that I was going to stand here now and ask you
for a return of a verdict of guilty on each of the three charges contained within
the indictment. And I stand here now asking you for that very thing.
Why do I ask for that very thing? Well, we discussed in the voir dire this so-
called war on drugs. And a lot of people had a lot of different opinions on this
so-called war on drugs and whether or not we were devoting enough resources
to this war on drugs. And a lot of you had diverse opinions. But what I heard
was, from some of you, I don't have enough facts on what the war on drugs
entails, what resources we're devoting to the war on drugs, this so-called war on
drugs.
Well, I submit through the officers that we have seen we all now have a little
glimpse, not a huge one but a little glimpse into what's being done at the street
level on this so-called war on drugs. We heard from Sergeant Caruso and his
special unit, special enforcement unit. And we heard that this unit is designed to
go out and try to improve the quality of life for the community by waging a so-
called war on drugs, proactively going into this - especially this one section of
Burlington City, the New Yorkshire area, going out proactively and trying to
improve the quality of life by stopping open air sales of drugs among other
things . . .
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So we now have a little bit of a glimpse into what's going on at the street level,
at least in Burlington City, on this so-called war on drugs. And that sort of plays
into the second part of that voir dire process that we were asking you about,
and that question was do you feel the criminal justice system is fair and
effective. And each one of you had your own opinions on that as well. And I
touched upon that in my opening statement, fair and effective.
And I submit to you, ladies and gentlemen of this jury, that today what you're
going through, this process that you're doing creates a fair and effective criminal
justice system. But remember, I said it has to be fair and effective for the State
as well as for the defendant. And I would ask that you just keep that in mind.
In our review we are guided by well-settled standards. We note prosecutors are given "considerable
leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed,
prosecutors . . . are expected to make vigorous and forceful closing arguments . . .                                ." State v. Frost, 158
N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see
that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). To that end, they must "confine their
comments to evidence revealed during the trial and reasonable inferences" that can be drawn from the
evidence. Smith, supra, 167 N.J. at 178.
We will reverse a conviction and order a new trial if we find that the prosecutor's failure to confine
his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair
trial." Frost, supra, 158 N.J. at 83. The Court in Smith, supra, explained in order to rise to the level of plain
or reversible error and to
warrant a new trial[,] the prosecutor's conduct must have been "'clearly and
unmistakably improper,' and must have substantially prejudiced defendant's
fundamental right to have a jury fairly evaluate the merits of his defense." State
v. Timmendequas, 161 N.J. 515, 575 (1999). In determining whether a
prosecutor's actions were sufficiently egregious to warrant the reversal of a
conviction, a reviewing court should take into account: (1) whether defense
counsel made timely and proper objections to the improper remarks; (2)
whether the remarks were withdrawn promptly; and (3) whether the court
ordered the remarks stricken from the record and instructed the jury to disregard
them.
[167 N.J. at 181-82.]
Thus, even if we note some impropriety in the State's remarks, not every deviation justifies reversal of a
conviction. State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169
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L. Ed.2d 817 (2008). "Generally, if counsel did not object [to the remarks], the remarks will not be deemed
prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). However, if the remarks create plain error, a new
trial is necessary. R. 2:10-2.
Relying on our opinion in State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992), defendant
maintains the remarks referencing the "so-called war on drugs" were a "clear call to arms." We are not
persuaded. Although we agree the repetitive use of the phrase "the so-called war on drugs" was unrelated
to the evidence in this case and, in a different context, has been interpreted to provoke a finding of guilt
based on passion rather than reference to the evidence; here, in the context of the entire summation and
the strong evidence against defendant, we conclude the remarks, either singly or collectively, do not rise to
the level of plain error. See State v. Morton, 155 N.J. 383, 419 (1998), cert. denied, 532 U.S. 931, 121 S.
Ct. 1380, 149 L. Ed.2d 306 (2001) (examining prosecutor's comment during summation "in the context of
the entire trial").
"Call to arms" comments are designed to "urg[e] jur[ors] to return convictions in order to protect the
community and send a message to the criminals[,]" and are generally impermissible, State v. Morais, 359
N.J. Super. 123, 132 (App. Div.), certif. denied, 177 N.J. 572 (2003), because they "improperly divert
jurors' attention from the facts of the case, and intend to promote a sense of partisanship with the jury
that is incompatible with the jury's function." State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003)
(citations omitted). See also State v. Rose, 112 N.J. 454, 519-20 (1988) (prosecutor's emphasis on the
need to "send a message" to the community as to the penalty for crime was improper); State v. Hawk, 327
N.J. Super. 276, 282 (App. Div. 2000) (prosecutor's comment that the jurors could send a message to the
community that it "will not tolerate distributors and sellers of LSD" by convicting defendant was improper);
State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994) (prosecutor's comment that the jurors could "make
a difference in [their] community" by convicting defendant was an improper "call to arms").
In Holmes, supra, the defendant was arrested for possession of CDS during a police raid of an apartment
lobby in Newark. 255 N.J. Super. at 249. At trial, the State's case rested on the credibility of police
witnesses who testified they saw the defendant drop a bag of cocaine on the floor as they entered. Ibid.
The defendant and his witness contradicted police testimony and claimed the bag had not been in his
possession, but was found in a fireplace in the lobby. Ibid. We summarized the "impugned portions of [the
State's] opening and closing statements[,]" id. at 251, as follows:
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On opening, the prosecutor made the following statement to the jury:
Who has the interest, who has motive, who would come before you and lie?
That will probably be what you will have to decide and I ask that you observe
the witnesses as they testify for you and use your common sense. You all
understand the particular drug problem that we have in this country, particularly
Newark and I submit to you, that the police officers don't have to make up
facts.
When defendant objected the trial court said only, "All right. I think just stay
within the facts. You have your summations, Mr. [Prosecutor]."
The prosecutor returned to this theme in summation by saying, "[w]ith the war
on drugs, he [the police witness] didn't have to come before you and fabricate
these type [sic] of cases. I submit to you he came before you and told you the
truth."
[Id. at 249-50.]
We found the State's comments such as "'[t]he particular drug problem that we have in this country,
particularly in Newark,' and 'the war on drugs' were entirely irrelevant to the police witnesses' credibility"
and "were only a thinly-veiled attempt to inflame the jurors by identifying defendant with matters of public
notoriety as to which no evidence was or could have been ever introduced." Id. at 251. Viewing the totality
of the State's comments we concluded they were "so inflammatory as to constitute plain error." Ibid.
From our review of this matter, we discern the majority of the State's comments referencing the "so-called
war on drugs" was presented in the context of commenting on the voir dire examination and the jurors'
response to the question regarding the war on drugs. Additionally, the reference was made in the context
of the responsibilities of the SEU officers. The State highlighted the police witnesses' specialization in
combating open air street crime, which included drug sales. The prosecutor's remarks did not attempt to
enlist the jury in combating illicit drug sales or buttress the officers' credibility because they were soldiers
fighting that battle. Thereafter, the prosecutor's comments fairly evaluated the witnesses' testimony noting
the jury must assess the facts and determine credibility of all witnesses in assessing its findings.
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Unlike the comments in Holmes, the State's remarks did not evoke an objection from the defense, strongly
suggesting their context was not offensive or improper. See Josephs, supra, 174 N.J. at 124. Moreover, the
evidence of defendant's guilt weighed heavily in favor of the State. Thus, we conclude the comments were
not "clearly capable of producing an unjust result." R. 2:10-2. See Macon, supra, 57 N.J. at 335 (finding
prosecutorial misconduct would not have altered the jury's finding because of the overwhelming trial
evidence of defendant's guilt).
B.
Defendant next argues the prosecutor's opening argument impermissibly interjected opinion on defendant's
guilt. Defendant earmarks this passage to support his assertion:
[Y]ou're going to make up your mind of what actually happened on that night.
You're going to judge the credibility of the witnesses, you're going to be able to
look at the evidence. You're going to be able to take it all in and then eventually
you're all going to be able to go in the back and deliberate over all of us.
And at the end of that deliberation, I submit that you're going to come to the
same conclusions that I am and that is what the State aims to prove is that Mr.
James Randall did, in fact, possess cocaine, he did, in fact, possess that cocaine
with the intent to distribute it; and while doing so was, in fact, on or within 500
feet of a public park.
Following our review we reject defendant's contention.
"[I]t is improper for the prosecutor to declare his individual or official opinion or belief of a defendant's guilt
in such manner that the jury may understand the opinion or belief to be based upon something which he
knows outside the evidence." Wakefield, supra, 190 N.J. at 440. This differs considerably from statements
that merely urge a finding of guilt, based on the evidence and application of the court's instructions of the
law.
Here, the prosecutor preceded the challenged remarks by outlining the proposed witness testimony and
requesting the jurors listen to the evidence and apply their common sense when evaluating credibility. The
State carefully explained the jury was to independently "make up [its] mind of what actually happened on
that night" after hearing all the evidence. We conclude the prosecutor's challenged remarks amounted to no
more than argument based on the evidence of record. The lack of objection also suggests the remarks were
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not believed prejudicial when made. See State v. R.B., 183 N.J. 308, 333 (2005) (quoting Frost, supra, 158
N.J. at 83); State v. Jang, 359 N.J. Super. 85, 96 (App. Div.), certif. denied, 177 N.J. 492 (2003). We find
no error.
C.
Defendant also argues the prosecutor's summation impermissibly interjected his opinion regarding the
credibility of the State's police and expert witnesses. Defendant points to these statements:
Now, let's talk about Mr. Greer for a second because defense counsel kind of
brings that up and keeps on throwing that out there don't forget Mr. Greer, don't
forget Mr. Greer and I believe defense counsel's words were, it doesn't pass the
smell test. Mr. Greer is not even arrested.
Well, we know why Mr. Greer wasn't arrested, don't we? Because they said
nothing was found on Mr. Greer. They had no reason to arrest Mr. Greer, they
had no probable cause to arrest Mr. Greer . . .
I think the police were very honest also in saying that there was a lot going on,
there was a lot going on. Mr. Greer was patted down, nothing was found on
him, eventually he was told that he could go because they were busy dealing
with Mr. Randall who did have something on him.
It is improper for a prosecutor to voice a personal opinion as to the veracity of a witness, thereby lending
the support of his or her governmental office to the testimony of that witness. Wakefield, supra, 190 N.J. at
440. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally
vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v.
Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). Succinctly, the State
may not "interfer[e] with the jury's right to make the credibility determination." Frost, supra, 158 N.J. at
88.
We do not agree with the notion that the prosecutor vouched for the witnesses' credibility or referred to
matters outside the record. Rather the State's comments responded to defendant's implicit attack on police
witnesses' credibility and the officers' recollection of events. See State v. Johnson, 287 N.J. Super. 247, 266
(App. Div.) (stating "[a] prosecutor may respond to an issue or argument raised by defense counsel"),
certif. denied, 144 N.J. 587 (1996). The prosecutor's remarks on this issue constituted fair comment on the
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evidence presented. See Frost, supra, 158 N.J. at 82; State v. Harris, 141 N.J. 525, 559 (1995). We
perceive nothing improper about these comments.
II.
The second series of arguments presented by defendant challenge several evidential rulings. Again, because
no objections were offered at trial, our review examines whether an error occurred and if so, whether it
was clearly capable of creating an unjust result. R. 2:10-2.
A.
First, defendant argues the trial court erred in permitting the State, in the guise of a hypothetical question,
to elicit Lieutenant Leon's opinion on the ultimate issue for the jury's determination, that is, whether
defendant possessed the cocaine with intent to distribute. We disagree.
Lieutenant Leon's testimony largely concerned the various forms of cocaine, the processing of the
drug for ingestion, and the various ways the substance is sold (rock form versus small amounts of powder).
Through the use of a hypothetical, Lieutenant Leon expressed his opinion regarding what inferences should
likely be drawn from the quantity and packaging of narcotics found in defendant's possession. The thrust of
Lieutenant Leon's testimony was that someone who possessed three small packets of crack cocaine hidden
in a weighty object, but who did not have a heat source to prepare the narcotic for ingestion, likely
intended to distribute the CDS. He opined a user would buy a rock of the same weight for less money and
break it down himself rather than buy small packets as described in the hypothetical.
N.J.R.E. 702 permits expert testimony where such testimony will assist the jury in understanding the
evidence or determining a fact in issue. The necessity for and admissibility of expert testimony is generally
within the sound discretion of the trial judge. State v. Berry, 140 N.J. 280, 293 (1995).
The Supreme Court has long held that expert testimony in drug cases is generally to be admitted, provided
the trial court is satisfied the testimony will assist the jury in resolving a material dispute of fact. Id. at 301.
An expert is not permitted to directly express the opinion that a defendant is guilty of the crime charged,
State v. Odom, 116 N.J. 65, 77 (1989), but may express an opinion which "embraces an ultimate issue to
be decided by the trier of fact." State v. Summers, 176 N.J. 306, 312 (2003) (quoting N.J.R.E. 704).
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Odom, supra, established the standard practice employed when the State relies on an expert to
express an opinion on the issue of an intent to distribute CDS. 116 N.J. at 79. The Court evaluated the use
of a hypothetical question patterned after facts presented at trial accompanied by a query to the expert
whether, in his opinion, the drugs described in the stated hypothetical were possessed for the purpose of
distribution or personal consumption. Id. at 80-81.
Since Odom, the Court has approved the use of the factually aligned hypothetical in CDS distribution
cases. State v. Reeds, 197 N.J. 280, 292-93 (2009); State v. Nesbitt, 185 N.J. 504, 514 (2006); Summers,
supra, 176 N.J. at 314-15; Berry, supra, 140 N.J. at 301. As the Court stated in Summers, supra:
Obviously, the expert must walk a fine line. His or her opinion can be "expressed
in terms of ultimate issues of fact, namely, whether drugs were possessed with
the intent to distribute," [Odom, supra, 116 N.J.] at 81, but it cannot contain an
explicit statement that "the defendant is guilty of the crime charged under the
statute." Id. at 80.
[176 N.J. at 314-15.]
Our review of the trial transcript satisfies us that Lieutenant Leon's testimony, in response to the carefully
crafted hypothetical,2 fell within the bounds that the Court has recognized as proper. Id. at 314-15. The
prosecutor's mirror-image hypothetical elicited Lieutenant Leon's opinion, which made no explicit reference
to defendant's guilt.
The facts of the matter at bar are distinguishable from those presented in State v. Boston, 380 N.J. Super.
487, 493 (App. Div. 2005), certif. denied, 186 N.J. 245 (2006), which is relied upon by defendant. In
Boston, the defendant was charged with second-degree conspiracy, N.J.S.A. 2C:5-2, "to violate laws
respecting possession of heroin and cocaine and possession of those drugs with intent to distribute[.]" Id.
at 488. The defendant was approached by a man on the street with whom she briefly conversed. Id. at
489. She then walked toward her co-defendant who entered a residence and retrieved something which he
then gave to the defendant. Ibid. The defendant handed the object to the man who had approached her in
exchange for money. Ibid. The police could not see the object exchanged and did not arrest the man who
received the object. Ibid. When the defendant was arrested CDS was not in her possession. Id. at 493.
Using a hypothetical mirroring the facts, the State's expert offered an opinion regarding the defendant's
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conduct, suggesting she was involved in a drug transaction. Id. at 491. We concluded the expert testimony
was impermissible, as the opinion was designed "to fill in the gaps" of the direct evidence, by opining on
the ultimate question of whether the defendant's conduct reflected she was selling CDS. Id. at 493 (quoting
State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
In this matter, the State offered the officer's observations plus the cash in defendant's possession and the
CDS seized from his vehicle. Moreover, Greer had neither money nor drugs when he was stopped. The
testimony of Lieutenant Leon was not offered to fill gaps in the direct evidence, but to connect to connect
the direct evidence to the State's proffer of defendant's conduct. Boston, supra, 380 N.J. Super. at 493-94.
The fairness of defendant's trial was further assured by Judge Covert's instructions to the jury. The trial
judge explained the jury was "not bound" by Lieutenant Leon's expert opinion and told the jurors they
should "give it the weight to which you deem it is entitled, whether that be great or slight or you may
reject it." Judge Covert charged it was "always within the special function of the jury to determine whether
the facts on which the answer or testimony of an expert is based actually exists." Finally, the trial judge
reminded the jury it alone must determine defendant's guilt based upon the evidence presented.
We find the evidence did not impermissibly invade the province of the jury. The hypothetical posed and
Lieutenant Leon's response thereto were properly admitted as they were limited to the facts adduced at
trial and otherwise conformed to the guidelines set forth in Odom. We conclude there was no error
infringing defendant's right to a fair trial.
B.
Defendant next argues reversible error resulted from Sergeant Caruso's testimony that the SEU officers
were patrolling the New Yorkshire area in response to "numerous complaints from residents about open air
narcotics trafficking." In a related argument he asserts the officers' statements identifying Greer based on
"prior contacts in the community" were "highly prejudicial." Defendant contends the admission of such
impermissible hearsay violated his constitutional right to confront witnesses. See U.S. Const. amend. VI;
N.J. Const. art. 1, ¶ 10. We reject these contentions.
In State v. Bankston, 63 N.J. 263, 268 (1973), the Court stated, "[i]t is well settled that the hearsay
rule is not violated when a police officer explains the reason he approached a suspect or went to the scene
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of the crime by stating that he did so 'upon information received.'" However, "[w]hen the logical implication
to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police
evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. To rebut a
suggestion of arbitrary police action and avoid a hearsay violation, police may use the phrase "based on
information received" to explain their subsequent actions, so long as the statements do not imply a
defendant has been implicated in the crime by an unknown person. State v. Branch, 182 N.J. 338, 352
(2005). See also State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975) (finding it was not reversible
error for an officer to testify a tip from a confidential informant caused him to go to the address where
people were selling cocaine), certif. denied, 70 N.J. 143 (1976).
Sergeant Caruso's comments referencing "numerous complaints from residents about open air narcotics
trafficking and we were just out there to enforce the laws and do the investigations[,]" did not implicate
defendant. We disagree with defendant's argument that the logical implication of the statement was likely
to have led the jury to conclude that police had additional evidence of defendant's guilt. Bankston, supra,
63 N.J. at 271. Sergeant Caruso specifically denied he was looking for a particular person, stating his basis
for acting in general terms, which "did not directly or by necessary inference implicate defendant." Long,
supra, 137 N.J. Super. at 134.
Turning to the statements related to Greer's identification, defendant references Sergeant Caruso's
testimony that he observed defendant speaking to someone with whom he was "familiar with through prior
contacts in the community"; Patrolman Comegno's statement he was "familiar with" Greer from previous
contacts; and Patrolman Bright's expression he was "familiar with [Greer] from previous contacts."
As noted, "witnesses may testify that they took certain investigative steps based 'upon information
received.'" State v. Luna, 193 N.J. 202, 217 (2007) (quoting Bankston, supra, 63 N.J. at 268-69). "But they
cannot repeat specific details about a crime relayed to them by a radio transmission or another person
without running afoul of the hearsay rule." Ibid.
The officer's statements were innocuous and did not create an inference of criminal activity or suggest
Greer was a "known criminal." In fact, it was the defense that connected Greer to illicit conduct during the
cross-examination of Patrolman Bright, who was asked: "And you had had prior knowledge of [Greer] from
past drug transactions, drug investigations?" The officer did not respond affirmatively but mentioned his
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familiarity was from "past contacts in the community." When pressed to elaborate on these community
contacts, Patrolman Bright stated "disorderly persons, open alcohol, just past contacts in the community."
We find no error.
C.
Defendant also contends he is entitled to a new trial because Sergeant Caruso and Patrolman Comegno
testified the area in which he was arrested was a known "high crime" area. We conclude the argument
lacks sufficient merit to warrant extensive discussion in our opinion. R. 2:11-3(e)(2). We note only that the
statements cited by defendant as prejudicial were rationally related to police experience and did not
specifically implicate defendant.
III.
In his next challenge, defendant argues the trial court erred in denying his motion for acquittal at the close
of the State's evidence, Rule 3:18-1, because a reasonable jury could not have found him guilty of the
charges beyond a reasonable doubt. We disagree.
In deciding a motion for a judgment of acquittal, the trial judge must review the sufficiency of the evidence
and determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-
59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975).
The trial judge must determine whether the State has presented sufficient evidence, viewed in its entirety,
while giving the State the benefit of all of its favorable testimony and inferences which reasonably could be
drawn therefrom, to enable a jury to find the essential elements of the offense beyond a reasonable doubt.
R. 3:18-1; State v. Martin, 119 N.J. 2, 8 (1990); Reyes, supra, 50 N.J. at 458-59.
We apply the same standard that binds the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004);
State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). Thus, under Reyes, supra, a motion for
judgment of acquittal is warranted where:
viewing the State's evidence in its entirety, be that evidence direct or
circumstantial, and giving the State the benefit of all its favorable testimony as
well as all of the favorable inferences which reasonably could be drawn
therefrom, a
reasonable jury could find guilt of the charge beyond a reasonable doubt.
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[50 N.J. at 459].
In this regard, "'a jury may draw an inference from a fact whenever it is more probable than not that the
inference is true; the veracity of each inference need not be established beyond a reasonable doubt in
order for the jury to draw the inference.'" State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v.
Brown, 80 N.J. 587, 592 (1979)). Governed by these standards, we conclude the State's direct and
circumstantial proofs were sufficient to warrant defendant's convictions for drug distribution within a school
zone and possession of CDS.
In denying defendant's motion Judge Covert listed the State's proofs establishing the elements of the
charged offenses, upon which "a reasonable jury could find guilt . . . beyond a reasonable doubt[,]" Reyes,
supra, 50 N.J. at 459, including: eyewitness testimony defendant "had a bag in hand," several items visible
in defendant's car were "related to the CDS," the potential exchange with Greer, expert testimony regarding
the quantity and packaging of the CDS and "the location which [was] stipulated through the [city] map."
These findings are fully supported by the trial record and the court properly applied the applicable legal
standard.
Defendant alternatively asserts there was insufficient corroboration of the officers' testimony with objective
proof such as photographs, video or audio recordings. This is rejected as without merit. At this juncture in
the case, the evidence presented included the officer's testimony, which, after receiving all favorable
inferences, supported a finding of guilt beyond a reasonable doubt on all charges.
IV.
Defendant cites as error the trial judge's instruction to the jury regarding the stipulated facts, asserting she
failed to advise the jury it was free to either accept or reject the stipulations. No objection to the charge
was asserted at trial, so we reverse only if we find plain error. R. 2:10-2. As related to a jury charge, plain
error has been defined as "legal impropriety . . . 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. Hock, 54 N.J. 526, 538
(1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed.2d 797 (1970).
We have made it clear that "in a criminal case, if facts are stipulated, the judge should not tell the jurors
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that they are 'bound' by such stipulated facts, if to do so would result in a directed verdict of any element
of an offense charged." State v. Wesner, 372 N.J. Super. 489, 491 (App. Div. 2004), certif. denied, 183 N.J.
214 (2005). "A stipulation of fact is nothing more than evidence that is uncontroverted." Id. at 494.
We review the "totality of the [trial court's] instructions" when considering whether the court "direct[ed] a
verdict on any element of the charges against [a] defendant," noting a faulty jury charge will not
necessarily result in reversible error. Id. at 495. See also State v. Torres, 183 N.J. 554, 564 (2005) (stating
an appellate court must read and review the jury charge in its entirety). Reversal is not warranted if a
charge "does not constitute directing a verdict," and is otherwise ameliorated by proper charges instructing
"the jury that it was required to find every element of every charge proven beyond a reasonable doubt in
order to convict defendant, that the burden never shifts to the defendant, and that the State has the
burden of proving defendant guilty beyond a reasonable doubt." Wesner, supra, 372 N.J. Super. at 494.
In the charge to the jury, the court clearly outlined defendant's presumption of innocence, the State's
burden of proof which never shifts to defendant, and the necessity for the State to prove every element of
each offense beyond a reasonable doubt. Although no specific charge explained undisputed facts "can be
accepted or rejected[,]" id. at 495, the court did not "direct a verdict" or state the jury was bound by the
stipulations. Further, the trial judge emphasized the jury's duty as fact-finder to be "the sole and exclusive
judges of the evidence," to weigh the evidence, determine credibility of witnesses, and determine the
weight to be attached to the testimonial evidence. We find no reversible error.
V.
Based upon our examination, we find defendant's arguments of error without merit. Accordingly, we need
not further address his assertion that the cumulative effect of various errors denied him a fair trial,
according to State v. Orecchio, 16 N.J. 125, 129 (1954) (recognizing the cumulative effect of many
otherwise inconsequential errors can potentially render a trial unfair); State v. Allen, 308 N.J. Super. 421,
431 (App. Div. 1998) (cumulative effect of errors in jury charge created unfair result).
VI.
We conclude our review by considering the points raised by defendant as to the sentence imposed. Initially,
we note our review of sentences is limited. State v. Miller, 205 N.J. 109, 127 (2011). "Although 'appellate
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courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]'
'when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for
that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394,
401 (1989), State v. Evers, 175 N.J. 355, 386 (2003)) (citations omitted). When "conscientious trial judges
exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . ,
they need fear no second-guessing." Id. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984). Following
our review, we are not persuaded the court misapplied its discretion.
A.
Defendant asserts the trial judge did not follow the guidance provided by the Court in State v. Pierce, 188
N.J. 155 (2006), thus requiring our remand for re-sentencing. Although defendant concedes he was eligible
for an extended term and the State proved the statutory requirements of N.J.S.A. 2C:44-3(a), permitting
the imposition of a discretionary extended term, he contends the trial judge never "engage[d] in a separate
and distinct analysis on the record as to whether the aggravating and mitigating factors supported the
imposition of sentence within the extended term[.]" We disagree.
When discerning the length of the imposed term, the Court in Pierce, supra, instructed that if a defendant's
prior criminal record renders him or her eligible for an extended term under the statute, "then the top of
the range of sentences applicable to the defendant . . . becomes the top of the [extended-term] range"
prescribed by N.J.S.A. 2C:43-7(a). 188 N.J. at 168. "[T]he range of sentences[] available for imposition" is
expanded such that "it reaches from the bottom of the original-term range to the top of the extended-term
range." Id. at 169. A defendant convicted of a second-degree crime who is eligible to receive a
discretionary extended-term could be subject to a sentence between five and twenty years. Id. at 168.
"Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a
function of the court's assessment of the aggravating and mitigating factors, including the consideration of
the deterrent need to protect the public." Ibid. In doing so, the sentencing court has the discretion to
decide that the appropriate base term lies within the extended-term range; however, imposing a sentence
within that enhanced range is not mandatory. Id. at 169.
In this case, Judge Covert made specific findings regarding the application of pertinent aggravating factors
and the weight accorded each, including: the risk that the defendant will commit another offense, N.J.S.A.
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2C:44-1(a)(3); the extent of the defendant's prior criminal record and the seriousness of the offenses of
which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9);
and "consideration of the deterrent need to protect the public." Pierce, supra, 188 N.J. at 168. She did the
same regarding the one applicable mitigating factor, that is, defendant's incarceration would be a hardship
to his dependents, N.J.S.A. 2C:44-1(b)(11), which was afforded "very slight weight." In balancing these
factors on a qualitative and a quantitative basis, the trial judge was "clearly convinced that the aggravating
factors given the heavy weight attributed to them and the very minimal weight attributed to [the]
mitigating factor [] that the aggravating factors do substantially outweigh the mitigating factors." She
concluded this finding "heightens the range . . . within which to sentence [defendant] within the extended
term eligibility and allows for a parole ineligibility period." Judge Covert then imposed sentence of sixteen
years imprisonment, half of which must be served prior to parole eligibility.
We reject defendant's contention that Judge Covert abused her discretion by failing to consider the
minimum sentence. Her comments reflect she was well aware of the range of the possible sentence but
found the aggravating and mitigating factors analysis justified "a sentence above the minimum" and one
within the extended term range subject to a parole ineligibility period.
We find no abuse of discretion. We will not interfere with the length of defendant's extended-term sentence.
B.
Defendant additionally maintains the trial court improperly imposed a period of parole ineligibility as she
neglected to re-analyze the aggravating and mitigating factors. See State v. Dunbar, 108 N.J. 80, 88
(1987), overruled on other grounds by State v. Pierce, 188 N.J. 155 (2006).
Dunbar instructs that in order to impose a period of parole ineligibility, the sentencing court must be
"clearly convinced that the aggravating factors substantially outweigh the mitigating factors." Id. at 92. If
so, the court is free to fix a minimum period of custody, not to exceed one-half of the term of incarceration
imposed, before defendant becomes parole eligible. Ibid. "In imposing parole ineligibility the sentencing
court 'shall specifically place on the record the aggravating factors set forth in this section which justify the
imposition of a minimum term.'" Id. at 89 (quoting N.J.S.A. 2C:44-1(f)(1)).
The notion that the court must specifically restate aggravating factors supporting parole ineligibility is legally
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unsupportable. "It is not necessary that every sentence be a discourse." Id. at 97. Dunbar requires a
sentencing court to explain the rationale for imposing parole ineligibility. Ibid. (permitting review of a trial
court's aggregate analysis to sustain imposition of a period of parole ineligibility because the aggravating
factors clearly and substantially outweighed the mitigating factors).
Judge Covert's combined articulated analysis integrated applicable aggravating and mitigating factors to her
finding regarding the justification for imposing a period of parole ineligibility. Dunbar, supra, 108 N.J. at 92.
C.
Defendant's final challenge suggests the trial court imposed a manifestly excessive sentence based upon
unsupported findings of fact and an improper balancing of aggravating and mitigating factors. This
argument maintains the articulated aggravating factors were inapplicable because defendant had no
indictable convictions from 1994 to 2006; the court did not afford proper weight to the mitigating factor
applied; and failed to consider whether "[t]he defendant's conduct was the result of circumstances unlikely
to recur," N.J.S.A. 2C:44-1(b)(8).
In our limited review of the sentencing term imposed, we will not substitute our judgment for the trial
court. State v. Bieniek, 200 N.J. 601, 608 (2010). Modification is only necessary when a trial judge
mistakenly exercises his or her broad discretion by imposing a sentence that shocks the judicial conscience.
Roth, supra, 95 N.J. at 363.
Judge Covert thoroughly delineated her findings of all applicable aggravating and mitigating factors as well
as the basis for rejecting other argued mitigating factors, including the period when defendant was
conviction free. She not only considered the nature and seriousness of defendant's convictions, but also
made an evaluative judgment "about the individual in light of his or her history." State v. Thomas, 188 N.J.
137, 153 (2006). Specifically addressing the significant period in defendant's life where he remained law
abiding, she found since 2006 he had turned back to criminality as supported by various municipal court
offenses and two recent indictable convictions in 2006 and 2008.
Finally, we determine the trial court's factual findings regarding the accepted and rejected mitigating factors
are unassailable and conclude the length of the sentence in light of these determinations is grounded upon
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"'competent credible evidence in the record,'" which does not shock our judicial conscience. Miller, supra,
205 N.J. at 127 (quoting Bieniek, supra, 200 N.J. at 608). Accordingly, defendant's sentence will not be
disturbed on appeal. Ibid.
Affirmed.
1 Defendant was also charged with a fourth count, second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). This count was dismissed prior to trial.
2 The hypothetical question posed at trial was as follows:
Q: It's 8 p.m. in Burlington City.
Police come upon a scene where a car is stopped in a roadway. The driver of
that vehicle is conversing with a pedestrian who is on the passenger's side
of the car, not in the car.
The officers observe the driver lean over towards the pedestrian and, likewise,
the pedestrian lean over towards the driver.
The police approach and observe what appears to be a small plastic baggie in
the driver's hand.
Within the car the police find an open porcelain egg, a plastic baggie contained
two smaller green baggies, both of those containing .36 grams of cocaine.
In addition for this hypothetical, the police find a mint container containing two
baggies which contain cocaine in the amount of 1.38 grams.
In addition, the police find another plastic baggie containing what later tests
positive for cocaine in the amount of .4 grams.
Police find on the driver US currency in the amount of $174.73. The police also
find some jewelry.
And last, the police do not find any, as you put it, heat sources.
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Now, with regards to that situation that I've just presented to you, do you have
an opinion based upon your training, your experience, your schooling, all
of the things that you've just gone over, do you have an opinion as to
whether or not that cocaine was possessed for the purposes of personal
use and/or for the purposes of distribution?
This archive is a service of Rutgers School of Law - Camden.
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