STATE OF NEW JERSEY v. BARRY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2869-03T42869-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY WILLIAMS,

Defendant-Appellant.

 

Submitted September 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Essex County, Law Division, Indictment No. 02-04-01357-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

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

PER CURIAM

Defendant Barry Williams was tried in absentia and found guilty of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1), -5b(3); and second-degree possession with intent to distribute a controlled dangerous substance (cocaine) while in, on, or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. He was thereafter sentenced to an extended term of eight years with a three-year period of parole disqualification on the third-degree possession with intent to distribute count, into which the third-degree possession count merged for sentencing purposes. In addition, he was sentenced to a term of eight years on the second-degree count, to be served concurrently. Defendant appeals from his conviction and sentence. We affirm the conviction, but remand for reconsideration of the sentence imposed.

The facts relevant to the issues on appeal are as follows. In the evening hours on November 29, 2001, four police officers were involved in an investigation of narcotics offenses in Newark. Two of the officers, Detective Burwell and Sergeant Dupont, were in plain clothes and were walking on Chelsea Avenue. According to the evidence at trial, Burwell was approaching a driveway on Chelsea Avenue which is within 500 feet of a public housing project, when he saw defendant. At the time, defendant was standing in the driveway, holding a clear plastic bag containing vials. As Burwell approached the driveway and while he was within six feet of defendant with Dupont looking on, defendant said, "yo, yo, man, I got that - got that coke. Cookup. Yo, what - what you need from there?" Burwell then opened his jacket to reveal his police identification and grabbed defendant's arm, as a result of which defendant dropped the bag, spilling the vials onto the ground. After defendant was arrested, the officers recovered the bag and conducted a field test on the vials, which was positive for cocaine. In addition, the officers recovered $347 in cash from defendant.

During a status conference that was conducted on the matter on June 28, 2002, the trial judge scheduled the trial for August 12, 2002. She advised defendant in open court that the trial was scheduled to begin on that date and that the trial could be conducted in his absence in the event that he failed to appear. She further advised him that no further notices or reminders of the date would be sent to him. Defendant acknowledged that he understood this information and these warnings.

On August 12, 2002, defendant failed to appear for trial. The trial did not proceed on that date, however, but was rescheduled for September 9, 2002 because one of the witnesses was not available to proceed on the August date. Defendant did not appear on September 9, 2002 or when the trial actually commenced on September 11, 2002. Prior to commencing trial, the judge noted that defendant had not contacted the court or his attorney following the initial trial date and she verified that he was not being held in the local jails. At the request of his attorney, the judge advised the jury of defendant's right to voluntarily absent himself from the trial and cautioned the jurors that they could not draw any inference from his absence. Following deliberations, the jury found defendant guilty of each of the offenses with which he had been charged.

Defendant raises the following arguments for our consideration on appeal.

POINT I

THE TRIAL JUDGE ERRED BY ADMITTING DUPLICATE PHOTOGRAPHS OF DEFENDANT INTO EVIDENCE BECAUSE THEIR PROBATIVE VALUE WAS FAR OUTWEIGHED BY PREJUDICE.

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION.

POINT III

THE TRIAL COURT ERRED BY TRYING DEFENDANT IN ABSENTIA SINCE DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AND DID NOT RECEIVE NOTICE OF THE TRIAL DATE AND BY DENYING HIS REQUEST FOR A NEW TRIAL AT HIS SENTENCING HEARING.

POINT IV

DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

We have considered these arguments in light of the record and the applicable legal principles. With the exception of the issue raised in Point IV, we find these arguments to be unpersuasive. We therefore affirm the conviction but remand for reconsideration of the sentence.

First, we find no merit in defendant's contentions respecting the use of photographs during his trial. Two photographs of defendant were utilized at trial and were shown to the jury. During jury selection, and over the objection of defendant's attorney, a photograph of defendant was shown to prospective jurors. In addition, a photograph taken of defendant at the time when he was arrested was used when Burwell and Dupont testified to establish the identity of the individual they had arrested. The jury was not shown any photograph of defendant that included an indication that he had been arrested and no witness referred to the photographs as "mug shots." Rather, the photographs that were shown to the jury were ones in which the identifying arrest number had been obliterated and they showed defendant in the street attire he had been wearing when he was arrested.

Our review of the record compels us to conclude that there was no error in the use of these photographs. First, it was necessary to show a photograph of defendant to the jury prior to jury selection to ensure that none of the prospective jurors knew him, given the fact that defendant's absence from the trial provided the court with little alternative means by which to do so. Second, the photograph that was used by the State's witnesses during their testimony was a permissible means of establishing his identity. See State v. Cribb, 281 N.J. Super. 156, 161 (App. Div. 1995). Although the use of police photographs may, in some circumstances, be improper, see State v. Burton, 309 N.J. Super. 280, 288 (App. Div.), certif. denied, 156 N.J. 407 (1998), here we find no error. In particular, defendant's contention on appeal that the photographs depicted him in jail attire is not supported by the record. On the contrary, the record amply supports the conclusion that the photographs showed him in street clothes and that they were presented, as this court has mandated, in "as neutral a form as possible." Cribb, supra, 281 N.J. Super. at 161 (citing State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988)).

Moreover, we find no merit in the argument on appeal that defendant was deprived of a fair trial because both of the photographs were admitted into evidence. Counsel for defendant raised no objection to the admission of two, rather than one, of the photographs, as a result of which we address this contention in light of the plain error rule. R. 2:10-2; see State v. Macon, 57 N.J. 325, 337 (1971). Tested against that standard, we conclude that the photographs, which were plainly relevant evidence and which were probative of defendant's identity, were not overly prejudicial nor capable of diverting the minds of the jury so as to deprive defendant of a fair trial. Ibid.

Finally, prior to charging the jury, the trial judge inquired of counsel for defendant whether an instruction on the use of police photographs would be appropriate and counsel for defendant replied that it was not needed. As we have previously held: "when no request for a limiting or curative instruction is made, defendant must show that the failure to give such an instruction sua sponte constitutes an error 'clearly capable of producing an unjust result.'" State v. Mays, 321 N.J. Super. 619, 633 (App. Div. 1999)(quoting State v. Loftin, 287 N.J. Super. 76, 97 (App. Div.), certif. denied, 144 N.J. 175 (1996)). We find no such showing in this record.

Defendant next argues that a statement made by the prosecutor during summation exceeded the bounds of propriety so as to deny him a fair trial. He points to the prosecutor's comment that it was inappropriate for defense counsel to interject his own opinion about the behavior of drug dealers and that the jury should rely instead on the State's experts, arguing that the comment constituted prosecutorial misconduct. We disagree. Counsel for defendant argued to the jury during summation that the State's witnesses were incredible because the police officer had testified that defendant essentially approached them on the street to sell them drugs when in fact a drug dealer would not approach strangers in that fashion. In response, the prosecutor described this aspect of the summation as an inappropriate opinion offered by defense counsel and argued to the jury that the opinions offered by the State's experts were the evidence on which the jury should rely. Defense counsel did not object to the prosecutor's statement, but the judge immediately interposed a sua sponte instruction to the jury to advise them that both attorneys were permitted to comment on the evidence, as long as the comments were fair inferences to be drawn from the evidence.

Defendant's assertion on appeal that the prosecutor exceeded the bounds of propriety is without merit. Prosecutors are afforded "considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). They are permitted to respond to comments and arguments made by defense counsel in closing as long as they do not cast aspersions on defense counsel or the defense. See State v. Frost, 158 N.J. 76, 86 (1999). Nothing in this statement by the prosecutor suggested that the police witnesses were more believable because they had no motive to lie, which would be improper. See State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005). Nor did the statement improperly cast aspersions on defendant or his defense. Moreover, to the extent that the statement, to which counsel did not object, see R. 2:10-2, might have been improper, the trial judge's immediate sua sponte instruction to the jury cured any potential prejudice. See State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant next asserts that the trial judge erred by trying him in absentia and by refusing to grant his post-conviction request for a new trial. We find no merit in either of these arguments. First, defendant concedes, as he must, that he was advised of the August 12, 2002 trial date and that he was told that the trial could proceed in his absence if he failed to appear. See State v. Hudson, 119 N.J. 165, 182 (1990). He admits that he did not appear, but asserts that when the trial did not commence on that date, he was entitled to notice of the adjourned date for the trial, failing which there was insufficient evidence of his voluntary and knowing waiver of his right to be present to permit the court to proceed without him. Our Supreme Court has previously addressed and rejected this argument, concluding that the right to be present, while of constitutional dimension, is not unfettered, see State v. Whaley, 168 N.J. 94, 100 (2001), and that a defendant once having failed to appear is not entitled to further notice of adjourned or rescheduled trial dates. See State v. Finklea, 147 N.J. 211, 219-20 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997). We find no basis in the record on appeal on which to reach a contrary result or on which to conclude that the trial judge's decision to try defendant in absentia was an abuse of discretion. Id. at 221; see Hudson, supra, 119 N.J. at 183.

Nor is there any merit to defendant's assertion that the trial judge erred in denying his post-conviction application for a new trial. A defendant who seeks to challenge a finding that he waived his appearance in a previously conducted trial is required to move for a new trial prior to sentencing. See R. 3:20-2. Defendant did not file a motion, but appeared for sentencing, following his arrest, and offered an oral application for a new trial through counsel. We need not, under the circumstances, address whether defendant's oral application at the sentencing hearing for a new trial sufficed as a timely new trial motion. See State v. Davis, 281 N.J. Super. 410, 414-15 (App. Div. 1995). Rather, our review of the application, at which time defendant first referred to personal and family difficulties that caused him not to appear for the August trial date and caused him not to contact his attorney or the court or to appear thereafter, was adequately considered by the trial judge and rejected as lacking in merit.

Finally, defendant attacks the sentence imposed on him on the ground that it is excessive. Following the guilty verdict of the jury, the State moved for imposition of an extended sentence, on the ground that it was mandated because of defendant's prior convictions. See N.J.S.A. 2C:43-6f. Counsel for defendant conceded that defendant was eligible for an extended term sentence. The trial judge granted the State's motion and sentenced the defendant as follows. The extended term applied only to the count for third-degree possession with intent to distribute. On that count, the judge found two aggravating factors, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), and the need to deter defendant and others, N.J.S.A. 2C:44-1a(9), and further found that there were no applicable mitigating factors. After analyzing these factors and considering that the aggravating factors outweighed the mitigating factors, the trial judge sentenced defendant to an extended term of eight years and imposed a three-year parole disqualifier. The judge merged the other third-degree count, for possession, for sentencing purposes. The judge then sentenced defendant to a concurrent eight-year term on the second-degree possession with intent to distribute within 500 feet of public housing count.

On appeal, defendant argues that the sentence violates the dictates of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Our Supreme Court has recently addressed the Blakely decision at length. See State v. Natale, 184 N.J. 458 (2005) (Natale II); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005). More recently, we have considered the further implications of these precedents. See State v. Young, 379 N.J. Super. 498 (App. Div. 2005). Applying these precedents to the issues raised on appeal, we conclude that the imposition of an extended term falls within the recidivism exception, and is therefore generally permissible, see Young, supra, 379 N.J. Super. at 514, and that the imposition of a period of parole ineligibility is also permissible. See Abdullah, supra, 184 N.J. at 515.

Notwithstanding these principles, the imposition on this defendant of a base extended term on the third-degree count in excess of the applicable presumptive extended term, see N.J.S.A. 2C:44-1f(1), and the imposition of an ordinary term on the second-degree count in excess of the presumptive term, see N.J.S.A. 2C:44-1f(1)(c), entitles this defendant to a reconsideration of the sentence imposed in light of the Court's analysis in Natale II.

The judge, on remand, shall follow the dictates of the Court in Natale II and in Abdullah when conducting the review of this sentence, including the direction that the judge shall determine whether the pertinent aggravating factors are based exclusively on defendant's record. See Abdullah, supra, 184 N.J. at 506-07 & n.2. The court shall fix the extended term of incarceration, which shall not exceed the aggregate of the terms previously imposed, and may, in accordance with the directives in Abdullah, impose an appropriate period of parole disqualification.

 
The matter is remanded only for reconsideration of the sentence consistent with this opinion. In all other respects, the convictions are affirmed.

(continued)

(continued)

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A-2869-03T4

October 4, 2005