STATE OF NEW JERSEY v. DARRIUS J. BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2695-04T42695-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRIUS J. BROWN,

Defendant-Appellant.

________________________________

 

Submitted: October 18, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 03-02-0297.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Karen Fiorelli, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Darrius Brown was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree distribution of cocaine within a school zone, N.J.S.A. 2C:35-7 (count three); and second-degree distribution of cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four). Defendant was sentenced to concurrent four-year terms for each of the first two counts; a concurrent four-year term for count three, with a three-year period of parole ineligibility; and a seven-year term for count four. The court also imposed appropriate fines and penalties, as well as suspension of defendant's driver's license.

On appeal, defendant argues:

I. THE ADMISSION OF HIGHLY PREJUDICIAL TESTIMONY FROM DETECTIVE FERRAIOLI AND OFFICER ROBINSON WHICH INDICATED THAT THE DEFENDANT HAD BEEN SELLING NARCOTICS ON OTHER OCCASIONS AND THAT THEREFORE THE POLICE BELIEVED HIM TO BE A DRUG DEALER, WAS SO COMPLETELY PREJUDICIAL AS TO HAVE MANDATED THE TRIAL COURT TO SUA SPONTE DECLARE A MISTRIAL AS THE PREJUDICE TO THE DEFENDANT COULD SIMPLY NOT BE UNDONE BY ANY OTHER MEANS INCLUDING A CURATIVE INSTRUCTION. THE FAILURE TO DECLARE A MISTRIAL, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (Not Raised Below).

II. THE DEFENDANT'S CONVICTIONS AND SENTENCES ON COUNTS TWO AND THREE MUST BE MERGED WITH HIS CONVICTION AND SENTENCE ON COUNT FOUR.

We affirm defendant's conviction. The State concedes the sentence was improper and agrees a limited remand is necessary to merge the conviction and sentence on counts two and three (distribution and school zone distribution) with count four (public housing distribution). The mandatory parole disqualifier required by N.J.S.A. 2C:35-7 for the school zone violation survives the merger. State v. Gregory, 336 N.J. Super. 601, 607-8 (App. Div. 2001); State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000). This would result in a four-year sentence on count one concurrent to a seven-year term with a three-year parole disqualifier on count four, and the vacation of the fees and assessments on the merged counts.

The convictions arose from defendant's sale of two rocks of cocaine to an undercover agent. Detective Robinson, an undercover officer who was working with the Hackensack police department, testified he made his first purchase early in the evening of August 27, 2002, and then returned to headquarters. Detective Anthony Ferraioli asked him to return to the area to make another purchase. Before leaving, Detective Robinson was shown some photographs, including one of defendant.

Detective Robinson spotted a man, later identified as defendant, standing in front of a laundromat on First Street. The detective approached him and asked, "can you get me two," asking for twenty dollars worth of crack cocaine. The man responded, "yo, you police[?]" After Detective Robinson denied being an officer, defendant nodded and led him through the laundromat to the parking lot in the rear. Once in the back, defendant reached into the front part of his pants, pulled out two loose rocks and handed them to the detective in return for twenty dollars. Detective Ferraioli observed the purchase.

The detectives then returned to police headquarters. Detective Robinson identified defendant as the seller from a group of photographs shown to him by Detective Ferraioli. Defendant was arrested two months later so as not to jeopardize surveillance or the safety of the officers.

At trial, the appropriate school zone and public housing location identifications were made. Detectives Robinson and Ferraioli made in-court identifications of defendant as the seller of the drugs.

Defendant now asserts as plain error the failure of the court to declare a mistrial, sua sponte, when evidence of other crimes was introduced through the testimony of Detectives Robinson and Ferraioli. On cross-examination of the undercover agent, defense counsel asked whether, after making a buy from another person and being asked to return, Detective Robinson was asked to target defendant. The witness testified that he was shown a number of photographs by Detective Ferraioli, including one of the defendant, before returning to the area to make another purchase. On direct examination, Detective Ferraioli testified as follows:

Q. What, if anything, did you instruct Detective Robinson to do with regard to going back out?

A. Detective Robinson was instructed to go back out to purchase -- attempt to purchase CDS from drug dealers in that area.

Q. Okay. Did you show him photos of drug dealers?

A. Yes, I did.

Q. I'm sorry. Photos of somebody?

A. Yes.

[DEFENSE COUNSEL] Judge, objection to the term "drug dealers."

THE COURT: Sustained.

In later questioning, Detective Ferraioli testified he was "a hundred percent positive" of his identification of defendant because prior to this incident, he had seen defendant "[w]ell over a hundred times" in Hackensack. The court sua sponte gave a curative instruction that the jury was to draw no inference from this testimony and reminded the jury that defendant lived very close to the area where the alleged buy had taken place.

According to defendant, Detective Robinson's testimony that he was shown a number of photographs before going out to the area, including one of defendant, coupled with Detective Ferraioli's testimony that they planned to make a buy from "drug dealers" in that area was prejudicial to defendant because it implied he was a drug dealer and merited a sua sponte mistrial. We are not convinced, given the evidence in the case, that this testimony was a violation of N.J.R.E. 404(b), so prejudicial that it resulted in a "manifest denial of justice" warranting a new trial. R. 3:20-1. Detective Robinson did not relate to the jury what information he received the first time he was shown the photographic array containing defendant's picture. The potential prejudice of Detective Ferraioli's reference to the array as photographs of "drug dealers" was somewhat ameliorated by the prosecutor's rephrasing of the question to "photos of somebody?" and the detective's response of "yes," and the court's sustaining of defense counsel's objection to the term "drug dealers." The prosecutor did not reference the photographs in his closing argument, and no connection was made between Detective Robinson's first observation of defendant's photograph and his later identification of defendant in the photographic array at headquarters. Moreover, the judge sua sponte gave an adequate, specific curative instruction regarding Detective Ferraioli's previous observation of defendant in the area on numerous occasions.

Defense counsel unsuccessfully attempted to impugn the undercover officer's credibility by pointing to a potential inconsistency in his testimony during an earlier trial pertaining to a prior purchase that evening where he had first indicated that had been the only sale. The jury was apparently satisfied by Detective Robinson's explanation and by the officer's explanation for the delay in arresting defendant. We are not convinced the potential implication that defendant was a drug dealer tipped the scales against defendant. Rather, the jury found the undercover officer's testimony of the specifics of the actual drug purchase and Detective Ferraioli's corroboration of his observations to be credible.

 
Convictions affirmed; remanded for resentencing and merger of counts two and three with count four, with the mandatory three-year parole disqualifier on count three surviving the merger.

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A-2695-04T4

October 31, 2005