STATE OF NEW JERSEY v. ROBERT CARSWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0245-05T40245-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT CARSWELL,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 13, 2006 - Decided October 4, 2006

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 04-08-1219.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel, of counsel, on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Adrienne B.

Reim, Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Defendant Robert Carswell appeals from a judgment of conviction entered on August 5, 2005 after a jury found him guilty of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count 2); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count 3); third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (Count 4); third degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and -5b(3) (Count 5); third degree distribution in a school zone, N.J.S.A. 2C:35-7 (Count 6); and third degree resisting arrest, N.J.S.A. 2C:29-2a (Count 7). Defendant was acquitted of third degree conspiracy, N.J.S.A. 2C:5-2 (Count 1). At sentencing, the State's motion for an extended term was granted and, after the appropriate mergers, defendant was sentenced to an aggregate term of seven years subject to three and a half years parole ineligibility. The usual fines and penalties were imposed.

These charges arose out of a surveillance operation in Jersey City that resulted from citizens' complaints about drug traffic in the residential area of Chapel and Rutgers Avenue. On June 2, 2004, at 12:45 p.m., Jersey City Police Officer Stephen Trowbridge was conducting surveillance from an unmarked vehicle approximately fifty to sixty feet from the area under surveillance.

Trowbridge observed two men standing about ten to fifteen feet apart and talking to each other near an alleyway at 64 Rutgers Avenue. Although Trowbridge could see the men communicating with each other, he could not hear what they were saying. One of the men was later identified as Joseph Taylor and the other as defendant. A third man, later identified as Marcus Hall, appeared and spoke to Taylor who directed him to defendant. Hall spoke with defendant who then went up an alleyway for about two minutes, returned and handed Hall items in exchange for currency. Trowbridge observed defendant count the money and put it into his left pants pocket. Based upon his extensive experience as a narcotics officer, Trowbridge believed he had observed a drug transaction. Trowbridge then notified support units who arrested Hall as he left the scene and then proceeded to arrest Taylor and defendant. After the arrests, the alleyway was searched but no drugs were found. Three other officers who assisted in the arrests also testified, including Officer Sanchez, who testified that defendant attempted to flee and that he had $123 in his left pants pocket, but no drugs on his person, when he was searched incident to arrest.

In this appeal, defendant argues the following points, none of which were raised at trial:

POINT ONE

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION (Not Raised Below)

POINT TWO

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND INCOMPLETE INSTRUCTIONS ON THE LAW OF DISTRIBUTION OF CDS AND RESISTING ARREST (Not Raised Below)

POINT THREE

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF POSSESSION (Not Raised Below)

POINT FOUR

THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below)

POINT FIVE

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED (Not Raised Below)

POINT SIX

THE TRIAL COURT IMPROPERLY IMPOSED AN EXTENDED TERM

A. THE CONSTITUTION PRECLUDES THE IMPOSITION OF AN EXTENDED TERM BASED ON THIS RECORD

B. EVEN IF THE DEFENDANT IS ELIGIBLE FOR A DISCRETIONARY EXTENDED TERM SENTENCE, THE COURT IS PRECLUDED FROM MAKING FACTUAL FINDINGS TO DETERMINE THE LENGTH OF THE EXTENDED TERM

The first three points address the jury charges to which defendant raised no objection at trial. Defendant is required to challenge instructions under R. 1:7-2 by objecting before the jury retires so that the trial judge may cure any defect at the time. Where there is a failure to object, it may be presumed that the instructions were adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection to a charge is also indicative that trial counsel perceived no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973).

Consequently, we will only reverse if we find plain error. R. 2:10-2. Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). When ultimately "passing upon the propriety of a trial court's instruction, [we] will examine the entire charge to see" if it was "ambiguous or misleading" in the context of the trial, thereby prejudicing defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960).

At the charge conference, defense counsel requested only a "mere presence" charge, i.e. "mere presence at or near the scene of a crime or failure to intervene does not make one a participant in the crime, but may be considered, in light of all facts you've heard." The court declined to give the "mere presence" charge but read the model charge on actual possession and a brief part of the charge on constructive possession. Defendant argues that the inclusion of the constructive possession language prejudiced him, resulting in reversible error. We disagree. Defendant was charged with and convicted of actual possession, however, an inclusion of the constructive possession charge was harmless error, if any error at all. R. 1:7-5.

Defendant next argues that the trial court erred in failing to include a jury instruction on "attempt" to distribute. Defendant, however, was charged with actual distribution, not attempted distribution. Jury charges must be based upon the evidence presented. State v. Thomas, 187 N.J. 119, 136 (2006 (citing State v. Sloane, 111 N.J. 293, 300 (1988)). There was no need to include an attempt instruction here and there was no error in failing to include it in the charge.

Defendant complains that when the jurors requested a reinstruction on the law of possession, the trial judge erred in simply re-reading the model charge, rather than molding it to the facts of the case. Simply stated, there was no need to mold the charge on the jury's request for reinstruction on a specific charge.

Defendant next argues that the surveillance operation was based upon anonymous reports of drug dealing in the area and since those "anonymous reporters" were not produced, defendant claims it was a violation of his right to confrontation. This argument is also subject to the plain error rule because it was not raised at trial. R. 2:10-2. The surveillance operation was established in response to complaints from citizens about drug traffic in the residential neighborhood. The cases upon which defendant relies involve specific informants giving specific information about a specific event or individual. See, e.g., State v. Bankston, 63 N.J. 263 (1973); State v. Irving, 114 N.J. 427 (1989); State v. Branch, 182 N.J. 338 (2005). These cases differ from general citizens' complaints about drug traffic in a neighborhood. See, e.g., State v. Singleton, 158 N.J. Super. 517, 526-27 (App. Div. 1978), certif. denied, 79 N.J. 470 (1978). There is no need for the State to produce those citizens in order to establish the legitimacy of the surveillance operation, nor does it deprive defendant of his right of confrontation because Trowbridge testified that he observed defendant's conduct first hand.

Defendant further argues for the first time on appeal that Trowbridge's opinion testimony should have been excluded. This point, too, is subject to the plain error rule because it was not raised at trial. R. 2:10-2. Police officers are clearly authorized under N.J.R.E. 701 to render lay opinions based upon their experience and observations.

Finally, defendant's sentencing arguments are without merit. The pre-sentence report indicates that he has an extensive criminal record dating back to 1984, with five prior convictions for indictable offenses. He has already served three state prison terms and been given the opportunity for three probationary sentences. The trial judge applied aggravating factors 3, 6 and 9 based upon defendant's prior criminal history, warranting the imposition of an extended term. N.J.S.A. 2C:44-3a. Moreover, seven years is the presumptive or mid-range sentence for an extended term on a third degree charge. N.J.S.A. 2C:43-7a(3); State v. Dunbar, 108 N.J. 80, 89-90 (1987); State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. Abdullah, 184 N.J. 497, 506 (2005); State v. Natale, 184 N.J. 458, 465, 483 (2005).

Affirmed.

 

N.J.S.A. 2C:44-1(a)(3), (6) and (9).

(continued)

(continued)

9

A-0245-05T4

 

October 4, 2006