STATE OF NEW JERSEY v. CAEVON GOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1046-04T41046-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAEVON GOOD,

Defendant-Appellant.

_____________________________________

 

Submitted December 20, 2005 - Decided January 11, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-06-2297.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and 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); 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(3); possession of cocaine in a school zone with the intent to distribute, in violation of N.J.S.A. 2C:35-7; and possession of cocaine within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The trial court sentenced defendant to a seven-year term of imprisonment, with forty-two months of parole ineligibility, for possession of cocaine within 500 feet of a public housing facility with the intent to distribute. The court also imposed the statutorily mandated fine, assessments, penalties and suspension of motor vehicle license. The court merged defendant's other convictions.

On appeal, defendant presents the following arguments:

I. THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

II. DEFENDANT IS ENTITLED TO REVERSAL DUE TO IMPROPER USE OF EXPERT WITNESS TESTIMONY AT THE TRIAL AND THE FAILURE OF THE COURT BELOW TO ADEQUATELY INSTRUCT THE JURY ON THE LAW (Not Raised Below).

III. THE SENTENCE IMPOSED BELOW WAS MANIFESTLY EXCESSIVE.

Defendant's arguments are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(2).

Regarding defendant's claim of prosecutorial impropriety in summation, we note that the prosecutor did not urge the jury to convict defendant to rid the Newark streets of drugs rather than based on the evidence in the case. In the course of discussing the evidence, the prosecutor simply stated:

[The State's expert] told you the significance of [defendant] having a lot of money in small denominations. You gotta make change. You're not gonna walk up, hey, give me two, give me three, whatever, here's money, and then stand there waiting for change. This is a high-narcotics area. And he told you, [defense counsel] asked him, well, what qualifies it as a high-narcotics area? And among other things, he said the people in that community are calling the police for help.

Defense counsel did not object to this part of the prosecutor's summation, thus indicating that she did not consider it to be improper. Moreover, to assure that the jury did not construe this comment as some form of indirect appeal to them to find defendant guilty for some reason other than his actual guilt, the trial court instructed the jury: "Nor are you to consider whatsoever anything about a community crying out for help[.]"

Defendant also challenges the prosecutor's comment in summation that defendant, who testified in his own defense, was not telling the truth and was telling them a "story." This was a fair response to defense counsel's summation, which attempted to discredit the police officers who testified for the State. In connection with this comment, the prosecutor detailed the testimony of the State's witnesses and the inconsistencies in defendant's testimony. A prosecutor may argue that the testimony of a witness, including a defendant, was incredible based on its inherent incredibility as well as the testimony of other witnesses, and that is all the prosecutor did in this case.

 
The testimony of the State's expert was consistent with the principles set forth in State v. Odom, 116 N.J. 65, 70-81 (1989) and State v. Summers, 176 N.J. 306, 311-17 (2003). The trial court properly instructed the jury regarding its consideration of expert testimony before the State's expert testified. In view of the shortness of the trial, the court was not required to give this instruction a second time in its final instructions.

Affirm.

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4

A-1046-04T4

January 11, 2006