STATE OF NEW JERSEY v. GARY WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0784-04T40784-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY WILLIAMS,

Defendant-Appellant.

__________________________________

 

Submitted April 26, 2006 - Decided July 24, 2006

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 03-03-0501.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Neal M. Frank,

Designated Counsel, of counsel and on

the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (James F. Smith,

Assistant County Prosecutor, of counsel

and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of conspiracy to distribute a controlled dangerous substance, cocaine, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(b)(3), a crime of the third degree. As to the remaining counts in the indictment, certain of these were dismissed voluntarily by the prosecution, and defendant was acquitted by the jury of the remainder. Defendant was sentenced to four years in prison; the trial court did not impose a period of parole ineligibility. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

From November 2002 to February 2003 members of the Atlantic City Police Department were engaged in an investigation of the narcotics trade in that city. Detective Alexis Smith of the Atlantic City Police Department was working on this investigation in an undercover capacity.

On January 23, 2003, she arranged to pick up Danielle Foster. Smith knew that Foster had a source from whom she purchased cocaine. Smith asked Foster to purchase cocaine for her; Foster agreed to do so but demanded the money up front: one hundred dollars for the cocaine, thirty dollars for Foster. Smith provided the money, the serial numbers of which had been recorded earlier. Smith and Foster drove to the Flamingo Motel, and when they arrived, Foster got out of the car to meet with her source and complete the purchase. After several minutes, Foster returned to the car and said "Jay" (later identified as Jakeem Bright) did not have any cocaine, and they were going to go to another location. Foster and Smith drove to a nearby location and parked. Foster then got out of the car and walked some distance away, and out of Smith's line of vision. When she returned to the car, she handed over to Smith a plastic bag containing a white rocky substance that later tests proved to be cocaine. Smith then dropped Foster off at her apartment. Foster was not placed under arrest at that juncture so as not to jeopardize Smith's undercover status. Smith testified that she never saw defendant during this transaction.

As part of their investigation, the police had placed the Flamingo Motel under surveillance. In conjunction with that surveillance, Detective Tom Gurcione videotaped events at the motel that morning. He testified that he saw Danielle Foster arrive and enter the motel. After a short time, she left with Jakeem Bright and a woman later identified as Nakia Shanks. Bright and Shanks got into a dark-colored Ford Explorer and drove off.

Several other surveillance units were stationed near the motel. Detective Ronald DiGiovanni, who was in charge of this investigation, directed that these units follow the Explorer. They did so, and they observed Bright meet with defendant, who was driving a black Lincoln. Bright and Shanks then drove to where Foster and Smith were waiting, and Foster received the cocaine she, in turn, delivered to Smith. The surveillance units attempted to follow defendant, but he took off at a high rate of speed. The police did not pursue him for reasons of safety.

They did, however, stop Bright and question him. Detective DiGiovanni testified that Bright volunteered that they had stopped him too early in the day, that he had been on his way to Pleasantville to replenish his stock. As with Foster, Bright was not placed under arrest so as not to jeopardize Smith's undercover role.

Bright and Shanks both testified at defendant's trial, Bright for the defense, Shanks for the prosecution. Both had been indicted with the defendant and both entered negotiated guilty pleas. By the time of defendant's trial, Bright had served his sentence.

Bright agreed that he had met with defendant that morning. He testified, however, that they met because defendant had earlier asked him to borrow two hundred dollars for supplies for his daughter's birthday party. Bright said he was only able to give defendant one hundred dollars because he needed the balance to replenish his stock. Defendant testified to the same effect.

Shanks, however, testified that she drove Bright that morning to meet with defendant to buy the cocaine that was sold to Foster. The day before defendant's trial commenced, Shanks entered a negotiated plea of guilty to one count of conspiracy to possess a controlled dangerous substance. As part of her negotiated plea bargain, she agreed to testify truthfully in defendant's trial, and the State agreed to recommend a probationary sentence.

On appeal, defendant raises the following issues:

POINT I THE PROSECUTOR'S EXCESSES IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT II THE COURT ERRED IN CHARGING "FLIGHT" AS CIRCUMSTANTIAL EVIDENCE OF THE DEFENDANT'S GUILT.

POINT III THE VERDICT ON COUNT EIGHT CONVICTING THE DEFENDANT OF CONSPIRACY WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE PRESENTED. (Not Raised Below)

POINT IV THE COURT ERRED IN IMPOSING THE "PRESUMPTIVE TERM" UPON THIS DEFENDANT IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

POINT V THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

The New Jersey Supreme Court has stated that "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). However, a prosecutor can still "make [] a `vigorous and forceful presentation of the State's case. . . .'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

With this balancing of concepts in mind, the Court has set the following standard: "prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Appellate courts are to determine if a prosecutor's misconduct is "sufficiently egregious" by taking "'into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" Ibid. (quoting State v. Marshall, 123 N.J. 1, 153 (1991)).

We have carefully reviewed the prosecutor's summation and reject defendant's characterization of it. We find no improprieties, let alone plain error. Bucanis, supra, 26 N.J. at 58-59.

We also reject defendant's second argument, in which he challenges the trial court's decision to charge the jury on the concept of flight. We agree with the State's assertion that defendant's argument rests upon the flawed premise that there was no proof of an underlying crime. There was circumstantial evidence pointing to the existence of a conspiracy, and the flight charge was appropriate. It was up to the jury to determine what inferences to draw from the evidence.

Similarly, we reject defendant's contention that the jury's verdict was against the weight of the evidence. Not only is this argument barred, defendant not having moved for a new trial, R. 2:10-1, it disregards the evidence presented by the State and the reasonable inferences that could be drawn therefrom.

Finally, we consider baseless defendant's challenge to his mid-range, four-year term of imprisonment. It is neither excessive in light of defendant's prior record nor a violation of State v. Natale, 184 N.J. 458 (2005).

Affirmed.

 

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A-0784-04T4

July 24, 2006