Opinion
DOCKET NO. A-3735-12T4
01-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Lawrence Thomas, appellant, submitted a brief pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-01-0191. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Lawrence Thomas, appellant, submitted a brief pro se. PER CURIAM
Defendant appeals from his convictions for third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11); second-degree commission of a drug offense while in possession of a firearm, N.J.S.A. 2C:39-4.1; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. We affirm.
Police officers surveilled a residence (the "residence") in preparation to execute a search warrant. They observed defendant exit a white van parked across the street from the residence and walk around to the rear of the house. Officers then observed a green minivan with two female occupants park in the residence's driveway. The driver exited the vehicle, walked towards the rear of the house, returned approximately seven minutes later, and drove away. Officers pulled the minivan over, seized marijuana from the vehicle, and arrested the two occupants.
The warrant permitted a search of two named persons and "all other persons presently unknown, upon entering or immediately exiting the . . . [residence] reasonably believed to be associated with illegal contraband and activity which is the subject of the investigation."
After the green minivan left, defendant came from the rear of the residence and headed back towards the white van. A detective approached defendant and identified himself as a police officer. He asked defendant "questions about his identity," which included a request for identification. Defendant stated that he was coming from a different location other than the residence. After the detective told defendant he was observed entering and exiting the residence, defendant indicated he was staying at the residence with his friend (the "friend"), informed the detective that he possessed marijuana, and removed two bags of marijuana from his left sweatshirt pocket.
Police arrested defendant, advised him of his Miranda rights, and then asked defendant additional questions about the residence. Defendant responded that he had additional marijuana in his room in the house, and that there was a firearm under his bed. Police found an additional bag of marijuana on defendant's person.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Police then executed the search warrant and gained entry to the residence using defendant's key. Inside defendant's room, police discovered a nine-millimeter handgun, a magazine with seven bullets (including three hollow-nose bullets), additional marijuana, and $1710 in cash. A Bergen County grand jury subsequently indicted defendant and charged him with third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11) (Count Two); second-degree commission of a drug offense while in possession of a firearm, N.J.S.A. 2C:39-4.1 (Count Three); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (Count Five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Count Six).
The friend was also charged with committing this offense.
The record indicates that Count Four was dismissed prior to trial.
Defendant moved to suppress his statements to police and the evidence found on his person. The judge denied defendant's motion. Defendant was tried before a jury (the "first trial"), but the jury was unable to reach a verdict and the judge declared a mistrial.
Defendant was tried again before a different judge and jury (the "second trial"). Defendant challenged the admissibility of his statements to police officers indicating a possessory interest in the residence, but the judge determined that the statements were admissible. The jury found defendant guilty on Counts Two, Three, and Six, but acquitted him on Count Five. The judge sentenced defendant to an aggregate term of sixteen years in prison, with nine years of parole ineligibility.
Defendant raises the following points on appeal:
POINT [I]
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FOLLOWING HIS DETENTION.
POINT [II]
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS OBTAINED FROM DEFENDANT.
POINT [III]
PROSECUTORIAL MISCONDUCT CUMULATIVELY CAUSED DEFENDANT AN UNFAIR TRIAL.
POINT [IV]
THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S PRIOR CONVICTIONS TO BE ADMITTED AGAINST HIM.
POINT [V]
THE TRIAL COURT ERRED IN PERMITTING IMPROPER EXPERT TESTIMONY BEFORE THE JURY (PLAIN ERROR).
POINT [VI]
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
In his pro se brief, defendant raises the following point:
[POINT VII]
THE COURT ERRED IN DENYING DEFENDANT['S] MOTION TO SUPPRESS PHYSICAL EVIDENCE DUE TO A DEFECTIVE SEARCH WARRANT.
I.
We disagree that evidence seized from defendant outside the residence should have been suppressed.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "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). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Here, the judge in the first trial denied the motion to suppress, stating in relevant part that
[a]fter marijuana was found in the [green minivan], [the detective] was told . . . to detain all persons coming and going from the residence. Soon thereafter, defendant then exited the backside of [the residence] wearing a hoodie. [The detective] identified himself as law enforcement, asked defendant a number of questions.
When considering the totality of the circumstances, [the detective] had reasonable suspicion to perform the investigatory stop. [The detective] is a seasoned narcotics officer. . . . The area in which defendant was located was the basis of a search warrant because there was ongoing drug activity. . . .
Both the experience and the background of the location is relevant in considering why the reasonable suspicion exists. Moreover, the occupants of the [green mini]van in question who had previously been in the house were found to possess marijuana when a search of the van was performed. . . .
[D]efendant [also] falls within the scope of the search warrant . . . which allows for the search of any person, ["]immediately exiting the premises reasonably believed to be associated with illegal contraband and activity, which is the subject of the investigation.["]
We see no reason to disturb the judge's findings. The detective observed defendant enter and exit the residence, thus placing defendant within the scope of the valid search warrant. The detective also had reasonable suspicion that defendant was involved in ongoing criminal activity because the residence was a suspected location for narcotics activity and the individuals in the green minivan who had just exited the residence possessed marijuana. See State v. Arthur, 149 N.J. 1, 8 (1997) (indicating "the level of reasonable suspicion necessary to justify an investigatory stop is something less than the probable cause standard needed to support an arrest" (citation and internal quotation marks omitted)).
II.
We also reject defendant's contention that his statements before and after his arrest were improperly admitted into evidence.
Defendant maintains that police followed a "question-first, warn-later" method by interrogating him before reading him his Miranda rights, and thus rendered the reading of his rights ineffective. This is inaccurate. When the detective approached defendant, the detective merely conducted a field inquiry based upon defendant exiting the residence which was under surveillance.
A field inquiry is "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). A field inquiry stands in contrast to a custodial interrogation which is defined as "'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Graves, 60 N.J. 441, 447 (1972) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).
There is no credible evidence indicating that the questions asked of defendant were harassing, overbearing, or accusatory in nature. Defendant freely answered the questions and admitted to possessing marijuana, which he turned over to the police. At that point, defendant was arrested, read his Miranda rights, and then he proceeded to provide additional information. There is nothing to suggest that defendant did not understand his Miranda rights, or that this was a custodial interrogation requiring an analysis under State v. O'Neill, 193 N.J. 148, 180-81 (2007).
III.
We disagree that the assistant prosecutor engaged in prosecutorial misconduct that requires reversal.
It is well-established that prosecutors are allowed to make a "'vigorous and forceful presentation of the State's case[.]'" State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). A prosecutor may not, however, elicit evidence that has been ruled inadmissible. State v. McGuire, 419 N.J. Super. 88, 140-42 (App. Div.), certif. denied, 208 N.J. 335 (2011). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
A.
In this case, the assistant prosecutor cross-examined defendant's sister, a worker for the Department of Child Protection and Permanency, on whether it would constitute abuse or neglect to smoke marijuana around children. The prosecutor then asked whether "marijuana . . . being smoked or sold in front of a juvenile by an aunt or an uncle," would constitute child abuse or neglect. Defense counsel objected and the judge allowed the question. After defendant's sister explained that "[i]n 2010[,] there were no minors in [her] home," the assistant prosecutor did not revisit the line of questioning or mention it in her summation.
Defendant's sister lived with two individuals at the time of trial, and one of them might have been a juvenile.
Here, it appears that the State was attempting to rebut defendant's claim that he was living with his sister, and not staying at the residence, at the time because she would not have tolerated his drug activities in a home with young children. Although this question may have had little relevancy to the charges against defendant, it did not undermine defendant's right to a fair trial. This was a fleeting question which the judge allowed and the witness answered without incriminating defendant. There existed overwhelming evidence linking defendant to the residence, including his presence there and his knowledge of the contents of his room.
B.
Defendant also maintains that the assistant prosecutor injected personal opinions into her summation and gave inaccurate statements regarding facts and law. These arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.
Because defense counsel did not object to the statement that defendant now argues improperly injected personal opinion, we apply the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Furthermore, "[t]he failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). Under these standards, there was no error, let alone plain error, that the statement was unduly prejudicial.
Defense counsel did object to the assistant prosecutor's other statements during summation, and the judge gave adequate curative instructions that the jury's recollection of facts controls and that only the judge may instruct on what the law is. The jury is presumed to have followed the court's instructions. Smith, supra, 212 N.J. at 409.
IV.
We disagree with defendant that the sentence imposed was improper and excessive.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court must consider the relevant aggravating and mitigating factors. See N.J.S.A. 2C:44-1a and -1b. The court must then "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
In this case, the judge found aggravating factors three, (the risk that the defendant will commit another offense); six (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); nine (the need for deterring the defendant and others from violating the law); and eleven (the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business). He also found mitigating factor eleven (hardship to spouse or children). The judge stated at sentencing that
[defendant] has been in drug court, he's been in all of these different programs, he's been on probation. But this type of history does not speak to minimal usage. When he was apprehended, there was scales, there were baggies, there were all kinds of paraphernalia, if you will, all used in the manufacturing and sale of drugs. It's a business. . . . [T]his is not somebody who is smoking a joint every now and then. This guy is actively involved in a business. . . . He has a rather extensive history of being involved . . . but the bottom line is, they're all drug distribution related charges. It's a substantial history.
. . . .
[M]arijuana leads to other types of drugs. Marijuana leads to further problems. It leads to violence, in this particular case. There's a gun involved. Any number of things can happen. So it's not some isolated case of marijuana usage.
. . . .The judge then imposed an aggregate custodial sentence of sixteen years with a nine-year parole disqualifier.
[G]iven [defendant's] criminal history, [his] involvement, whether it's a conviction, whether it's a dismissal, the whole combination going all the way back to [defendant's] juvenile history, it's a long criminal history. A lot of criminal involvement. As [defendant] become[s] more involved in the system, the penalties increase. They don't decrease.
The record supports the judge's findings as to aggravating factors three, six, and nine. The judge adequately explained his reasons in his discussion of the circumstances of the crime and defendant's criminal history. We observe that the judge mistakenly applied aggravating factor eleven. "By its very terms, [N.J.S.A. 2C:44-1a(11)] is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Here, there was no discussion at sentencing that defendant might be able to avoid a custodial term, and this factor therefore could not apply. We also note that the judge gave an insufficient explanation as to aggravating factor eleven in his oral statement of reasons for the sentence. See State v. Case, ___ N.J. ___ (2014) (slip op. at 28).
However, the application of aggravating factor eleven was merely harmless error because it is not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Rose, 112 N.J. 454, 529 (1988) (applying the harmless error standard to the application of an erroneous aggravating factor at sentencing). In this case, aggravating factors three, six, and nine clearly warranted the sentence imposed. We see no reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
V.
After examining the record and the briefs, we conclude that defendant's remaining arguments, that the judge erred in admitting defendant's prior convictions and permitting certain expert testimony, are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.
"[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). At the time of defendant's trial, our Rules of Evidence provided that:
N.J.R.E. 609 was amended after defendant's trial, effective July 1, 2014, to allow conviction evidence after more than ten years have passed "only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof." N.J.R.E. 609(b). We apply the rule in effect at the time of the trial.
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For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.
[N. J.R.E. 609.]
Here, defendant's convictions were within ten years of the offense for which he was on trial, and were not so prejudicial as to affect defendant's right to a fair trial.
As to the admission of expert testimony regarding narcotics, because defense counsel failed to object at trial, our standard of review is one of plain error. R. 2:10-2. N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise." Our Supreme Court has recently held that courts can allow testimony in drug cases about the "'properties, packaging, and value of illegal drugs'" and "the roles that participants play in street-level drugs transactions[.]" State v. Sowell, 213 N.J. 89, 100 (2013) (quoting State v. Odom, 116 N.J. 65, 76 (1989)). The testimony of the narcotics expert in this case was well within the scope outlined by Sowell and Odom, and we see no error in its admission.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION