STATE OF NEW JERSEY v. JAMES WILFONG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6301-03T46301-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WILFONG,

Defendant-Appellant.

___________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 02-02-0234 and 02-12-1526.

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

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), and second-degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). Defendant subsequently pled guilty pursuant to a plea agreement to a charge under another indictment of possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1). The trial court sentenced defendant to an eight-and-a-half year term of imprisonment, with no parole ineligibility period, on his conviction for possession of cocaine with the intent to distribute. The court merged the conviction for possession of cocaine under the same indictment. In accordance with the plea agreement, the court imposed a concurrent four-year term of imprisonment on defendant's conviction for possession of cocaine under the separate indictment. The trial court also imposed the statutorily mandated fines, fees and assessments, and suspensions of defendant's motor vehicle license on both convictions.

On appeal, defendant presents the following arguments:

I. THE STATE'S FAILURE OF PROOF OF CONSTRUCTIVE POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE SHOULD HAVE RESULTED IN THE TRIAL COURT GRANTING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE SENTENCE WAS ILLEGAL AND EXCESSIVE.

We reject the arguments presented under defendant's first two points regarding the sufficiency of the evidence to support his conviction for possession of cocaine with the intent to distribute. However, we conclude that defendant's sentence to a term in excess of the presumptive term for that offense must be vacated and defendant must be resentenced in accordance with the principles set forth in State v. Natale, 184 N.J. 458 (2005).

I

Defendant's convictions were based on evidence obtained in a search of defendant's residence conducted pursuant to a search warrant during the early morning hours of June 15, 2001. The residence is a two-story house in Morristown. When the officers who conducted the search entered the house, they found defendant asleep in a bedroom. The officers found defendant's wallet and other papers bearing his name on top of a dresser in the bedroom. They also found various clothing that apparently belonged to defendant in the bedroom. The search of the bedroom revealed a marijuana pipe; rolling paper; a digital gram scale, which the State's expert testified is commonly used to weigh drugs; and $2,251 in cash, consisting of five $50 bills, one hundred $20 bills, and one $1 bill. The officers did not find any drugs inside the bedroom, but they discovered a cigarette case containing 35.69 grams (1.25 ounces) of white powder, subsequently identified as heavily diluted cocaine, in a china cabinet in the dining room that was located a few feet outside the door to defendant's bedroom. The officers also discovered a tin foil fold containing additional white powder near the cigarette box in the china cabinet, but this substance was not tested for drugs. At the time of the search, the house was occupied not only by defendant but also his mother, his sister, an unidentified adult male and a number of children.

In a prosecution for possession of drugs, the State must show that the alleged possessor had "'intentional control and dominion'" of the drugs "accompanied by knowledge of [their] character." State v. Brown, 80 N.J. 587, 597 (1979) (quoting State v. Davis, 68 N.J. 69, 82 (1975)). "Such possession can be constructive rather than actual." Ibid. "Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Ibid.

The State's evidence of constructive possession of drugs in Brown was similar in many respects to the State's evidence in this case. In that case, as in this case, the police conducted a search of defendant's residence under the authority of a search warrant. The police found no narcotics or narcotics paraphernalia on defendant's person or in immediate proximity to him. However, the police found twelve envelopes of heroin in the pocket of another person in a rear bedroom and another fifty envelopes of heroin inside the pocket of a dress in a bedroom closet. The police also found narcotics paraphernalia hidden in other parts of the apartment. The Court concluded that this evidence was sufficient for the jury to find that defendant had knowledge of and control over the narcotics found in the apartment. The Court assigned considerable significance to the fact that "defendant lived in the apartment" and that there was "nothing to suggest an occupancy by others in such numbers or circumstances sufficient to dilute defendant's control over his own residence." Id. at 594. In addition, the Court stated that "[t]he inference of knowledge and control of the concealed heroin is further strengthened by the presence of other heroin-related materials in the apartment." Id. at 595. The Court concluded:

The circumstances proved by the State in this case coalesce sufficiently to enable a rational jury to infer beyond a reasonable doubt knowledge and control on the part of defendant justifying his convictions for the crimes of possession of narcotics and possession with an intent to distribute them. It is not fatal to the State's case that these, or other speculative circumstances, permit of some other rationale explanation of defendant's conduct or fail to exclude every other conceivable hypothesis except guilt.

[Id. at 599 (citations omitted).]

Similarly, in State v. Meneses, 219 N.J. Super. 483, 485-87 (App. Div. 1987), we concluded that the evidence was sufficient to establish constructive possession of cocaine found in a search of a residence, even though the defendant was only a guest and the cocaine was not discovered in the bedroom where he was sleeping. We concluded that the presence of a scale with a residue of cocaine in the bedroom and a beeper and substantial cash on defendant's person were sufficient circumstantial evidence of defendant's constructive possession of the cocaine found in the bedroom. Id. at 486-87.

As in Brown and Meneses, even though the drugs discovered in the search were not on defendant's person or in the bedroom where he was sleeping, there was sufficient circumstantial evidence to support the jury's finding that defendant had constructive possession of the cocaine found in the china cabinet. This evidence consisted of defendant's admitted residence in the house; the discovery of a digital gram scale, which the State's expert testified is commonly used by drug dealers to weigh drugs, in the bedroom in which defendant was sleeping; the discovery in that bedroom of more than $2,000 in cash, mostly $20 bills, which the State's expert testified would be a street-level drug dealer's proceeds from the sale of $20 bags of cocaine; and the fact that the china cabinet containing the cocaine was located only a few feet from the door to defendant's bedroom.

In arguing that this evidence was insufficient to support his conviction, defendant relies heavily on State v. Sapp, 71 N.J. 476 (1976), rev'g on dissent, 144 N.J. Super. 455, 460 (App. Div. 1975). However, the Supreme Court in Brown concluded that Sapp "did not give appropriate weight to the availability of the inferences to be drawn from all of the surrounding circumstances and the jury's right to draw those inferences and to consider them in their totality in concluding that defendant was guilty beyond a reasonable doubt." 80 N.J. at 599. Consequently, the Court indicated that "[t]o that extent, Sapp is disapproved and should not be followed for guidance in the future." Ibid.

Defendant also relies on State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) and State v. Jackson, 326 N.J. Super. 276 (App. Div. 1999). However, the defendant in Milton was not in the residence when the search that revealed drugs was conducted and the State failed to present any evidence that he had been there a short time before the search. 255 N.J. Super. at 521-22. Furthermore, the State did not present evidence that the bedroom where the drugs were found was occupied exclusively by defendant or that he was the one who slept in the bed under which the drugs were found. Id. at 522. In Jackson, unlike in this case, the State failed to present any evidence that the defendant was a resident of the premises in which drugs were found. 326 N.J. Super. at 279. Therefore, both Milton and Jackson are distinguishable in significant respects from this case.

For these reasons, we conclude that the trial court correctly denied defendant's motions for a judgment of acquittal or for a new trial.

II

In State v. Natale, supra, 184 N.J. at 466, our Supreme Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." "To bring the Code [of Criminal Justice] into compliance with the Sixth Amendment in a way that the Legislature would have intended," the Court "eliminate[d] presumptive terms from the sentencing process." Ibid. Therefore, under Natale, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The trial court sentenced defendant to a eight-and-a-half year term of imprisonment, which is in excess of the presumptive seven-year term for a second degree offense. N.J.S.A. 2C:44-1(f)(1)(c). In imposing this sentence, the court relied not only on defendant's prior criminal conviction but also the risk he would commit other offenses, N.J.S.A. 2C:44-1a(3), and the need for deterrence, N.J.S.A. 2C:44-1a(9). In finding these aggravating factors, the court stated:

I think that what strikes me here particularly is the fact that this was, although all the jury heard was the search warrant, the basis of that search warrant was a fact that there had been a number of undercover drug transactions that had been done by the detective of the special enforcement unit. The affidavit submitted to the trial Court -- to the judge for purposes of the warrant indicate[s] that on the week of March 25th, 2001 an undercover controlled buy of cocaine from James Wilfong; April 15th, a drug purchase from a CI, James Wilfong; April 15th, 2001 a drug purchase again; May 6th, 2001; June 3th, 2001 purchasing from Mr. Wilfong, and this warrant then issued.

So in that regard, I'm satisfied that what was going on here through the surveillance and activities of the detective of the special enforcement unit was the knowledge that -- and the fact that Mr. Wilfong has been and was distributing drugs in this community.

Thus, the court did not rely solely on defendant's criminal record in imposing a sentence in excess of the presumptive. Therefore, under Natale, he is entitled to a new sentencing hearing in which the presumptive statutory term of seven years is not considered. Because defendant must be resentenced, we do not consider his argument that the eight-and-a-half year sentence was excessive.

 
Accordingly, we affirm defendant's conviction but vacate the sentence and remand to the trial court for resentencing in conformity with Natale.

Because the issue is not briefed, we express no opinion concerning the appropriateness of the court considering such evidence in connection with sentencing.

(continued)

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A-6301-03T4

October 6, 2005