STATE OF NEW JERSEY v. JOSE GONZALEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0911-02T40911-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE GONZALEZ,

Defendant-Appellant.

____________________________

 

Submitted September 20, 2005 - Decided

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, 3313-10-01-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Dianne Glenn, Designated Counsel,

of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Jose Gonzalez was indicted for third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count three); and third-degree conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:5-2 (count four). Tried to a jury with co-defendant Angel Colon, defendant was found guilty of count four, third-degree conspiracy to distribute a controlled dangerous substance. On September 13, 2002, the trial judge granted the motion by the State to sentence defendant to an extended term since he had two prior convictions for drug-related offenses. The judge imposed a sentence of nine years incarceration, four to be served without parole eligibility. Plaintiff appeals his conviction and sentence.

At trial Investigator Peter Slusser of the Camden County Prosecutor's Office testified that he was engaged in a "sneak-and-peak" undercover surveillance operation at Eighth and Tulip Streets in the City of Camden, a location known for distribution of controlled dangerous substances. Slusser sat in an unmarked car approximately three-quarters of a block away and used binoculars to observe the persons in the area including defendant as well as co-defendants Angel Colon and Waldmar Alicea. After a short time, two females in a red Saturn stopped at the corner. After defendant motioned to Colon and pointed at the Saturn, Colon walked to the car and spoke with the driver. He then walked down an alleyway to a wooded area out of view. Approximately thirty seconds later, he returned to the Saturn and handed some small items to the driver in exchange for money. Following these observations, Slusser radioed to a back-up team to stop the Saturn, but they were unable to do so because of traffic flow on the nearby highway.

Shortly thereafter a green Honda Civic stopped at the corner, and the same scenario was repeated. Defendant directed Colon toward the car; Colon spoke to the driver; he walked through an alley toward a wooded area; and on his return he passed an item or items to the driver and received cash. Slusser alerted the back-up team, and this time they were able to stop the vehicle ten blocks away. After the occupants were arrested, a search of the Honda revealed two bags of crack cocaine in the center console.

Slusser also witnessed six walk-up transactions at the corner of Eighth and Tulip streets. Each time defendant pointed to Colon to speak with each of the purchasers, Colon walked through the alley and returned to hand something to the apparent purchaser of CDS. Slusser finally told the back-up units to move in and arrest defendant, Colon and Alicea. Just then a black Ford drove to the corner. This time defendant pointed at Alicea who then walked to the car, engaged in conversation and walked to the alleyway. When he returned the police moved in. The black Ford sped off while Alicea dropped six bags of crack cocaine to the ground. All three defendants were searched following their arrest. In defendant's front pants pocket the police found twenty-three twenty dollar bills, one five dollar bill and two one dollar bills totaling $467. Colon had $173, and Alicea, $59. No drugs were found on defendants or in the area. The items seized from the Honda tested positive with a net weight of .54 grams. Slusser identified the defendant at trial and further testified that Tulip Street near Seventh Street was within 1,000 feet of a school zone.

Defendant did not testify. On his behalf, Nelson Velez testified he was the owner of a food market two blocks from Tulip and Eighth streets and defendant worked for him for cash "under-the-table." He specifically recalled lending the defendant $600 in twenty dollar bills between the hours of 8 and 9 a.m. on the morning of July 3, 2001.

After deliberating for less than four hours, the jury sent a note to the judge stating, "We have arrived at a conclusion and further deliberations will not cause us to arrive at a unanimous decision on any charge. We feel that all avenues of discussion were pursued. Thanks." The judge returned the jury to the courtroom and instructed them in the language of the model charge to continue their deliberations with a view toward reaching agreement if each juror could do so consistent with his or her individual judgment. Defense counsel objected to the instruction and moved for a mistrial, which was denied.

A short time later in its deliberations, the jury sent another note to the judge, asking the following. "Do we have to vote individually on each charge? Example: Can we vote guilty on possession of a controlled dangerous substance with intent to distribute and not guilty on possession of a controlled dangerous substance? Can you clarify both areas?" In response, the judge adopted the suggestions of defense counsel and said to the jury:

The answer to the first question, yes, you do have to vote individually on each charge for each individual defendant. You can vote guilty on one charge and not guilty on another charge. However, in your example that could not happen because possession is an element of possession with intent to distribute a controlled dangerous substance. ...Now, again, as with each charge and each individual verdict, the standard of proof is beyond a reasonable doubt.

After deliberating through the morning on the following day, the jury sent out a note stating, "We have reached an unanimous verdict on one charge against one defendant but are irretrievably deadlocked on the remaining seven." The trial judge elected to receive the partial verdict, finding defendant guilty on the conspiracy count. The judge later dismissed the remaining counts.

Following the imposition of sentence, defendant filed a notice of appeal and now submits the following arguments for consideration:

POINT I - THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY WHEN SHE ATTEMPTED TO DEFINE REASONABLE DOUBT IN HER OPENING AND CLOSING STATEMENTS.

POINT II - THE JURY WAS COERCED INTO REACHING A VERDICT AFTER BEING RETURNED FOR FURTHER DELIBERATIONS.

POINT III - THE TRIAL COURT ERRORED IN ALLOWING INVESTIGATOR PETER SLUSSER TO TESTIFY AS AN EXPERT WITNESS ALTHOUGH HE WAS CALLED BY THE STATE AS A FACT WITNESS.

POINT IV - THE TRIAL JUDGE ABUSED ITS DISCRETION BY SENTENCING DEFENDANT TO AN EXTENDED TERM, IMPOSING A SENTENCE GREATER THAN THE PRESUMPTIVE TERM, AND BY IMPOSING A FOUR YEAR PAROLE DISQUALIFIER.

After careful review, we have determined that the arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We make only the following observations.

Prior to opening statements, the trial judge gave preliminary instructions to the jury which included the model jury instruction on reasonable doubt. In the prosecutor's opening statement she told the jury that the judge was going to explain reasonable doubt further at the end of the trial but added the following:

How certain do you have to be about partially life-changing decisions? A decision about medical care for a child. A decision about buying a house. That's a major expense.

. . .

These are major decisions that you all are required to make at different points in your life. It's probably fair to say that you will always have some doubt about those types of decisions but there's a level of confidence that you have - have to have a level of certainty you have to have or you're willing to make those decisions, despite the doubts that you have.

Defense counsel objected and argued at sidebar that the prosecutor's statements were improper. The trial judge overruled the objection on grounds that he was going to again instruct the jury further on the definition of reasonable doubt at the conclusion of the case and add that the jury was to accept only the definition given by the court and not comments of counsel on the law.

In their summations, both defense attorneys stressed the State's burden of proof beyond a reasonable doubt and noted that it was the judge's explanation of reasonable doubt which governed rather than any stated by counsel or the prosecutor. The prosecutor responded:

Because Counsel's gotten up, primarily Mr. Mitnick, and said, yeah, you know, you can't have doubts. You know, it's inaccurate to say that you can't have doubts. The Judge is going to read an instruction and what the instruction says is you can have doubts. You must be firmly convinced. That's what it says.

Counsel for Colon objected to the prosecutor's statement that the jury had to be "firmly convinced." The trial judge overruled the objection. Prior to giving the model jury charge on reasonable doubt, the trial judge gave the following instruction to the jury:

Counsel have made several statements concerning reasonable doubt. I am going to give you the charge of reasonable doubt. You must accept my charge as to the reasonable doubt.

Now, any ideas that you have of what the law is or what the law should be or any statements by the attorneys as to what the law may be must disregarded by you if they're in conflict with my Charge.

The comments of the prosecutor in opening that the jury should consider reasonable doubt in the context of major life decisions is not in opposition to the Supreme Court statement in State v. Medina, 147 N.J. 43, 57 (1996), that "it means such a doubt as would cause a man of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life." Similarly, her comment in summation that the jury was to be "firmly convinced" was not a misstatement of such magnitude so as to constitute prejudice warranting a reversal of a conviction. We cannot assume that the jury did not faithfully follow the admonitions and instructions of the trial judge. State v. Winter, 96 N.J. 640, 647 (1984); State v. Darrian, 255 N.J. Super. 435, 454 (App. Div.), certif. denied, 130 N.J. 13 (1992).

There is also no merit to defendant's argument that the trial judge coerced the jury into reaching a verdict by returning it for further deliberations after receipt of the first communication from the jury. At that time, the jury had deliberated for less than four hours. A trial judge is permitted to require a jury to deliberate for a "reasonable" length of time before declaring a mistrial on the basis of a deadlocked jury. State v. Ramseur, 106 N.J. 123, 302-03 (1987). While there is no "litmus test" for determining what is a reasonable amount of time for deliberation, State v. Hightower, 146 N.J. 239, 260 (1966), deliberation of only four hours in a case involving four charges against two defendants is not such as to require a mistrial for a deadlocked jury. Moreover, the instruction given by the trial judge to continue deliberation was appropriate. State v. Czachor, 82 N.J. 392, 404 (1980).

Defendant next argues that the trial judge erred in permitting Slusser to testify as an expert witness. At the commencement of his testimony Slusser stated he had been employed by the Camden County Prosecutor's Office for seven years after ten years with the State Department of Corrections. For the past four and one half years he was assigned to the Special Narcotics Task Force in Camden and was involved in approximately 700 narcotics investigations and over 500 arrests. Counsel for this defendant interrupted the testimony to stipulate that Slusser was "very well experienced, he knows what he is doing when it comes to narcotics distribution and he is a capable, competent police officer and we don't need to go any further in this area." However, counsel for Colon objected because the State did not give notice in discovery that Slusser would testify as an expert witness. The trial judge overruled the objection and Slusser testified to the visual characteristics of street-level drug operations based upon his personal observations, training and experience. He added that the conduct of defendant and the co-defendants which he observed on July 3, 2001, was consistent with a pattern of drug transactions.

Much of Slusser's testimony was consistent with the general rule that a non-expert may give his or her opinion on matters of common knowledge and observation. N.J.R.E. 701. See also State v. Johnson, 120 N.J. 263, 294 (1990) and State v. Labrutto, 114 N.J. 187, 197 (1989). In State v. Jackson, 124 N.J. Super. 1, 4 (App. Div.), certif. denied, 63 N.J. 553 (1973), we held that it was not trial error for a detective, "if experienced and trained, [to] testify generally as to the observable reaction of drug use and the technique of the use." See Labrutto, supra, 114 N.J. at 199; State v. Bealor, 377 N.J. Super. 321, 328 (App. Div. 2005). Moreover, to the extent that Slusser's testimony crossed over into the realm of expert testimony, it was hardly unanticipated. Indeed, defendant does not argue that he was not familiar with the substance of Slusser's proposed testimony as to his observations and interpretations since he accepted Slusser as a "well experienced" officer who "knows what he's doing when it comes to narcotics distribution." Defendant can hardly claim surprise at the testimony. Finally, admissibility of opinion evidence rests within the discretion of the trial judge. State v. Summers, 350 N.J. Super. 353, 363 (App. Div. 2002). This was no misapplication of discretion in this case sub judice.

Defendant's final argument is that his sentence was manifestly excessive. However, defendant was eligible for an extended term sentence as a persistent offender, State v. Dunbar, 108 N.J. 80, 91 (1987), and was within the discretion of the judge to impose the sentence rendered. Our role is not to second guess or substitute our judgment for a sentencing court. State v. Jabbour, 118 N.J. 1, 5-6 (1990); State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998). We may modify sentences only where the exercise of discretion by the sentencing court was "clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (1989). Here the sentencing judge exercised discretion based on findings of statutory aggravating circumstances and the absence of mitigating circumstances. Since the factors relating to defendant's criminal history were properly considered, this is not an instance where unauthorized judicial factfinding was required. State v. Natale, 184 N.J. 458, 488-89 (2005). Finally, the sentence imposed does not show a clear error of judgment so that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

(continued)

(continued)

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A-0911-02T4

November 10, 2005