STATE OF NEW JERSEY v. TYRONE MILLS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5679-03T45679-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE MILLS,

Defendant-Appellant.

_______________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

03-06-2271.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (J. John Witman, III, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Tyrone Mills appeals from a final judgment of conviction and sentence. The grand jurors for Essex County returned a three count indictment charging defendant with third degree possession of cocaine contrary to N.J.S.A. 2C:35-10a(1) (count one); third degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5a(1), b(3) (count two); and third degree possession of cocaine with intent to distribute within 1000 feet of school property contrary to N.J.S.A. 2C:35-7 (count three). Tried to a jury, defendant was convicted of all charges. The trial judge merged count one and count two into count three. On the State's application and defendant's admission to eligibility as a repeat drug-offender, the judge sentenced defendant to an extended term as mandated by N.J.S.A. 2C:43-6f. Specifically, the judge imposed a seven-year term, three of which must be served without possibility of parole, a $1000 DEDR penalty, a $50 lab fee, a $50 VCCB assessment, a SNSF assessment of $75 and a LEOTEF penalty of $30.

At approximately 2:30 a.m. on May 9, 2001, Officers Smith, Dudley, Lespier and Villa were patrolling the streets of Newark in an unmarked minivan with the goal of detecting drug crime and auto theft. Smith saw defendant on Richmond Street near its intersection with South Orange Avenue. He was holding a clear plastic bag in one hand and using the other to remove glass vials with pink caps from the bag. He was looking down, appeared to be counting the vials and did not react when the officers' van turned onto Richmond Street. As the officers stopped and got out of the van, defendant looked up and dropped the bag. The vials clattered and scattered as they hit the ground.

Lespier picked up the vials while Smith and Dudley handcuffed defendant. After Smith read defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), defendant told Smith he "couldn't go to jail for this" and needed him "to take care of" it. He said that he had just gotten the drugs on Norfolk Street. Smith and Lespier understood defendant's statements as an offer to provide information about his acquisition of the drugs. Defendant had 100 vials that held cocaine. The area was within 100 feet of a school.

A detective from the Essex County Sheriff's Department was qualified as an expert in narcotics trafficking. In fact, defendant's attorney stipulated to his qualifications. The prosecutor posed a hypothetical question that included the following facts:

Q. . . . .

. . . [An] individual drops that plastic bag. And that plastic bag and the contents of it are recovered, and it is discovered to be, in fact, 100 vials of cocaine.

I want to ask you, Detective, do you have an opinion about that hypothetical that I presented to you?

This exchange followed:

A. Ma'am, that [the] discarded and recovered bag which contains 100 vials of cocaine was possessed with the intent to illegally distribute for monetary gain.

Q. And what is your opinion based upon?

A. Ma'am, that 100 individual pre-packaged vials of cocaine coincides with distribution, Ma'am.

. . . .

Q. Detective, I want to ask you, what is significant about this packaging of the cocaine?

A. Well, Ma'am, once again as I've stated, we have a large sum of individual packaging of vials. Ma'am, individuals that are looking to make a purchase of this quantity for what might be considered personal usage would look to make said purchase in one bulk form, meaning in a one clear plastic sandwich bag with larger chunks, larger rocks, of the cocaine along with various powder residue.

Now, when buying -- making a purchase of this quantity, Ma'am, by buying in bulk, you're looking at two things, a -- a guarantee of a purer quality where as many times when cocaine is packaged individually in vials, the distributor might mix the actual cocaine with a cutting agent in order to stretch the money.

When buying in bulk, that's seldomly done, Ma'am, if at all. While also buying in bulk loosely in one packaging, then we're looking at a discounted rate.

Ma'am, the individual, the consumer, is when buying individual vials, they're also paying for the price of the vial itself along with the caps, Ma'am.

Q. Detective, do you know how much one of those individual vials would go for on the street?

A. Ma'am, these vials would go for exactly $5 U.S. currency.

Q. And would you know approximately the amount of cocaine that would be contained in one of those vials?

A. Yes Ma'am.

Q. What would that amount be?

A. Ma'am, that would be approximately 0.1 grams per vial.

Q. Thank you, Detective. I have no further questions.

Defendant raises the following issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S MOTION TO SUPPRESS.

A. THE INITIAL POLICE ENCOUNTER

WITH THE DEFENDANT CONSTITUTED AN INVESTIGATORY STOP AND NOT A

FIELD INQUIRY.

B. THE POLICE DID NOT HAVE A

REASONABLE AND ARTICULABLE

SUSPICION TO CONDUCT AN

INVESTIGATORY STOP OF THE

DEFENDANT.

C. THE WARRANTLESS ON-THE-SCENE

SEIZURE OF THE COCAINE WAS

ILLEGAL.

D. SINCE THE SUBSEQUENT ARREST OF

THE DEFENDANT WAS ILLEGAL, THE

DEFENDANT'S ORAL STATEMENT

SHOULD HAVE BEEN SUPPRESSED AS

BEING "THE FRUIT OF THE

POISONOUS TREE."

II. THE TRIAL COURT ABUSED ITS DISCRETION

AND PREJUDICED THE DEFENDANT'S RIGHT

TO A FAIR TRIAL BY PERMITTING

DETECTIVE HOLLOWAY TO RENDER AN EXPERT

OPINION THAT THE DEFENDANT POSSESSED

THE COCAINE WITH AN INTENT TO

DISTRIBUTE.

III. THE SEVEN (7) YEAR EXTENDEDBASE TERM

IMPOSED WAS MANIFESTLY EXCESSIVE AND THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT THE DEFENDANT CREDIT FOR TIME SERVED.

A. THE TRIAL COURT ABUSED ITS

DISCRETION IN NOT IMPOSING A

MINIMUM FIVE (5) YEAR EXTENDED

TERM BASE SENTENCE FOR A CRIME

OF THE THIRD DEGREE.

B. THE TRIAL COURT ABUSED ITS

DISCRETION IN DENYING THE

DEFENDANT'S MOTION TO BE

GRANTED "GAP TIME" CREDIT.

Our review of the record convinces us that the arguments presented in support of the issues raised in Point I of defendant's brief are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The officers got out of their van and approached defendant based upon observations that gave rise to a reasonable articulable suspicion that he was involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In response to their approach, defendant dropped 100 glass vials, giving rise to probable cause sufficient to justify his arrest for possession of controlled dangerous substances. State v. Pineiro, 181 N.J. 13, 21 (2004). Because there was probable cause to arrest, a warrant was not required for seizure of the vials. State v. Moore, 181 N.J. 40, 45 (2004).

The statements defendant made after his arrest and receipt of Miranda warnings were unsolicited and not made in response to any interrogation. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07; State v. Stott, 171 N.J. 343, 364 (2002). These unsolicited statements were properly admitted into evidence. State v. Cryan, 363 N.J. Super. 442, 454 (App. Div. 2003).

Detective Holloway's expert testimony was also properly introduced and appropriate instructions on its use were given. "[T]he opinion of an expert can be admitted [when] it relates to a relevant subject that is beyond the understanding of the average person . . . [and] would help the jury understand the evidence presented and determine the facts . . . ." State v. Summers, 176 N.J. 306, 312 (2003). Admissibility is left to the sound discretion of the trial judge. Ibid. Although opinion testimony is not excluded merely "because it embraces an ultimate issue to be decided by the trier of fact," ibid. (quoting N.J.R.E. 704), a judge may exclude it "if the risk of undue prejudice substantially outweighs its probative value." Ibid. We see no abuse of discretion here.

Detective Holloway's testimony contrasting customary packaging employed for sales of large quantities of cocaine for individual use with customary packaging of large quantities held for distribution was relevant and helpful to explain matters beyond the expected understanding and experience of ordinary jurors. Defendant's claim of error is premised on a misreading of this court's decision in State v. Cordero, 293 N.J. Super. 438 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997). In Cordero, we held that a trial judge's failure to properly instruct the jurors concerning use of the expert testimony was harmless error because evidence that the defendant possessed 421 vials of cocaine was sufficient, without any expert testimony, to support a finding that defendant possessed the drug with the intention of distributing the controlled dangerous substance. Id. at 443-44. The case does not stand for the proposition that the expert's testimony was erroneously admitted. In this case, the trial judge gave the jurors proper guidance on the consideration and use of expert testimony and its responsibility to determine the ultimate issues both immediately prior to Detective Holloway's testimony and in the final charge prior to their deliberations. There was no error.

Nor do we find an abuse of sentencing discretion. The trial judge employed the correct sentencing guidelines and standards in sentencing defendant to a mandatory extended term, fixing that term at seven years, which is the presumptive extended term, and imposing the mandatory minimum three-year period of parole ineligibility. N.J.S.A. 2C:43-6f; N.J.S.A. 2C:44-1f; State v. Roth, 95 N.J. 334, 365-66 (1984); State v. Vasquez, 374 N.J. Super. 252, 265-68 (App. Div. 2005).

Defendant was convicted of possession of cocaine with intent to distribute within 1,000 feet of school property. In March 2002, he was convicted of violating the same law. Upon the prosecutor's application, the judge was required to impose an extended term. See N.J.S.A. 2C:43-6f. A jury need not find the prior conviction essential to imposition of this mandatory extended term. State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005); Vasquez, supra, 374 N.J. Super. at 269.

In this case, the trial judge did not abuse his discretion in imposing a term above the minimum and equivalent to the presumptive extended term based upon defendant's criminal history. See State v. Kirk, 145 N.J. 159, 176 (1996); Vazquez, supra, 374 N.J. Super. at 265-67. Defendant's record included not only the prior conviction essential for the extended term but also an additional prior conviction based on possession of controlled substances with intent to distribute in a school zone and two juvenile adjudications based upon conduct that would amount to possession of drugs with intent to distribute if committed by an adult.

The judge found three aggravating factors: the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(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:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Those findings, and the judge's rejection of mitigating factors suggested by defendant's counsel after careful consideration of the relevant evidence, are amply supported by defendant's history, which reflects a pattern of similar criminal conduct extending from 1998 through 2003, interrupted only by periods of confinement. There is no basis for us to interfere with the judge's sound exercise of discretion. State v. Gardner, 113 N.J. 510, 516 (1989); cf. Vazquez, supra, 374 N.J. Super. at 265-67.

Defendant's argument concerning gap-time credit is not supported by the law. "Gap-time" credit does not apply to the time between re-incarceration on a parole detainer and imposition of a separate sentence for a crime committed while on parole. State. v. Franklin, 175 N.J. 456, 471 (2003). Defendant acknowledges as much. Nonetheless, claiming prejudice from the prosecutor's alleged delay in proceeding with this trial, he contends that the judge abused his discretion in failing to give him credit on this sentence for time served on his parole violation prior to imposition of this sentence. We cannot agree. Id. at 470-72 (discussing different ramifications of parole revocation and "gap-time" credit in the context of a crime committed prior to the sentence for which parole was violated and a crime committed while on parole).

There can be no prejudicial impact on total-time served from delay of trial on a second offense unless the trial judge exercises his or her discretion to impose the second sentence to run concurrently with the sentence on the crime for which he was paroled. The general rule, however, is that such sentences are served consecutively. N.J.S.A. 2C:44-5c states that general rule as follows: "When a defendant is sentenced to imprisonment for an offense committed while on parole in this State, such term of imprisonment and any period of reimprisonment that the parole board may require the defendant to serve upon the revocation of his parole shall run consecutively unless the court orders these sentences to run concurrently." Accordingly, there is no presumption that time served on the initial sentence will count toward time served for a crime committed while released on parole.

A judge's decision to follow the general rule concerning consecutive sentences included in N.J.S.A. 2C:44-5c, like others governing concurrent and consecutive sentences, State v. Yarbough, 100 N.J. 627, 635 (1985), is left to the sound discretion of the trial judge. We see no abuse of that discretion in this case.

General standards that prohibit double counting of aggravating factors, id. at 644, do not favor concurrency of an extended term based on recidivism and a sentence that is reactivated due to a violation of parole. When a defendant is paroled for a crime that will give rise to an extended term if he or she commits another, the conclusion that principles of "double counting" require concurrent sentences is unsound. Rather, concurrency would diminish the importance of persistent offending in the sentencing scheme the Legislature has put in place.

One purpose of provisions governing sentencing is "to insure the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection." N.J.S.A. 2C:1-2b(3). Statutes providing for extended terms based upon recidivism serve those goals in an obvious way. Running an extended term based upon recidivism concurrent with a sentence reactivated because of a violation of parole would reduce the impact of the extended term for the most persistent of all offenders -- i.e., those so committed to criminality as to repeat their crimes while still subject to parole supervision. This cannot be viewed as a "double counting" that is inconsistent with the Legislature's intention or unnecessary to its purposes in mandating extended terms for certain recidivists.

 
Affirmed.

Cases in which this court has disapproved of expert testimony on the question whether a drug transaction has occurred are distinguishable and have no relevance here. See State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

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A-5679-03T4

November 22, 2005