STATE OF NEW JERSEY v. STEVEN BOKA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1048-04T41048-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN BOKA,

Defendant-Appellant.

_______________________________________

 

Submitted December 12, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-05-656.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged in a Middlesex County indictment with possession of PCP contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count two); possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); possession of cocaine with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count four); and possession of cocaine with intent to distribute within 500 feet of a public park, contrary to N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count five).

Tried to a jury, defendant was convicted on all counts. The judge merged counts two, three and five with count four. She granted the State's motion for an extended term and sentenced defendant to seven-years imprisonment, with a forty-two month period of parole ineligibility. The judge also sentenced defendant to a concurrent five-year term on count one. Fines and penalties were assessed and defendant's driving privileges were suspended for twelve months.

On this appeal, defendant raises the following contentions for our consideration:

POINT I: DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BECAUSE THE PROSECUTOR IMPERMISSIBLY VOUCHED FOR THE CREDIBILITY OF THE POLICE WITNESSES IN SUMMATION (Not raised below).

POINT II: THE TRIAL JUDGE ERRED IN FAILING TO SANITIZE ALL OF DEFENDANT'S PRIOR CONVICTIONS.

POINT III: DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF THE CUMULATIVE EFFECTS OF THE TRIAL ERRORS.

POINT IV: THE MATTER SHOULD BE REMANDED FOR A HEARING AT WHICH THE PROSECUTOR WOULD BE REQUIRED TO STATE HIS REASONS FOR SEEKING THE IMPOSITION OF AN EXTENDED TERM AND DEFENDANT AFFORDED THE OPPORTUNITY TO ARGUE THAT THE APPLICATION IS ARBITRARY AND CAPRICIOUS (Not raised below).

POINT V: THE SENTENCE IS ILLEGAL.

POINT VI: THE SENTENCE IS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

The relevant facts may be stated succinctly. On the evening of January 23, 2004, New Brunswick police officers Mark Pappas and Dean Dakin were on patrol in a marked police vehicle. At around midnight, the officers observed defendant walking alone down the street. Pappas testified that defendant was talking at the time on a cell phone. The officers got out of the police car to arrest defendant. He resisted. He gripped a handrail with his right hand and his left hand was in the pocket of his jacket.

The officers wrestled defendant to the ground and, when doing so, a clear plastic bag containing 26 smaller bags fell out of the right side of defendant's body. It is undisputed that the bags contained cocaine. In addition, the officers found a bottle in defendant's left pocket and it was found to contain PCP. Maps and ordinances admitted at trial showed that defendant was arrested within 1000 feet of school property and 500 feet of a public park. At the time of his arrest, defendant was carrying $296 in cash which included fourteen $20 bills.

Investigator Mark Levy of the Middlesex County Prosecutor's Office testified as an expert in the possession and distribution of CDS. Levy opined that an individual who possessed drugs in circumstances similar to those involving defendant, did not possess the drugs for personal use but rather with the intent to distribute. Levy based this opinion on the fact that the cocaine was packaged in 26 individual bags which were placed in a larger bag. He also based his opinion on the fact that the individual bags would sell in the area for $20 per bag and the individual possessing the cocaine also was in possession of $296, which included fourteen $20 bills. In addition, Levy said that his opinion was based on the fact that the drugs were possessed at night in a "high drug area."

On cross-examination, Levy admitted that the cocaine might be purchased in New York City for $10 a bag. Levy testified that possession of five bags of cocaine would not be consistent with an intent to distribute. He said that it was possible that a person with a drug habit could buy 26 bags of cocaine for personal use. He asserted, "Anything is possible" but he said it was not likely.

Defendant called David Leff as an expert in the use, trafficking and packaging of controlled dangerous substances. Leff asserted that, in his opinion, considering the totality of the circumstances, defendant possessed the cocaine for personal use, not for distribution. Leff noted that the cocaine was packaged for distribution but this did not necessarily mean that defendant was the packager or distributor of the drugs. Leff had interviewed defendant and learned that defendant used cocaine on average five times a week. Defendant told Leff that on the day he was arrested, he had purchased 30 bags of cocaine and had ingested the cocaine from four of the bags. Leff opined that defendant's possession of $296 did not show that defendant possessed the drugs for distribution because the money had been obtained legitimately and a dealer in drugs would be more likely to be in possession of larger denominations.

Defendant testified in his own defense. Defendant asserted that he began collecting unemployment benefits in March 2002. He received a benefits check in the amount of $466 on January 23, 2004 and cashed the check early that day. Defendant said that at about 10:00 or 10:30 p.m., he took an "illegal" taxicab to Newark for the purpose of purchasing drugs. The driver waited for him while defendant purchased 30 bags of cocaine in three "bundles." He paid $140 for the drugs, got back in the taxicab and returned to New Brunswick, where he exited the car. Shortly thereafter, defendant was apprehended by the police. On cross-examination, defendant admitted possessing the cocaine. He admitted possessing $296 in cash when he was arrested. He also admitted possessing the bottle with the PCP. But he denied possessing the cocaine with intent to distribute.

We turn first to defendant's assertion that the judge erred because she did not require the sanitization of both of defendant's prior convictions. Defendant was convicted in 1996 of possession of CDS with intent to distribute and he was convicted in 1997 of eluding. Defendant asked that both convictions be sanitized. The judge only ordered that the CDS conviction be sanitized.

When a defendant testifies at trial, the fact that defendant has previously been convicted of a crime may be used for purposes of impeachment. State v. Sands, 76 N.J. 127, 144-45 (1978). The Court in State v. Brunson, 132 N.J. 377 (1993), detailed the manner in which such evidence is to be presented to the jury.

To impeach the credibility of a testifying defendant, the State may introduce into evidence only the number, degree, and date of the defendant's prior similar convictions. When a defendant has multiple prior convictions, some of which are similar to the charged offense and some of which are dissimilar, the State may introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses.

[Id. at 394.]

Here, defendant had dissimilar convictions - for possession of CDS with intent to distribute and for eluding. The judge only required sanitization of the conviction for CDS possession. The State concedes that the judge erred in doing so.

The State argues, however, that the error only requires reversal of defendant's convictions on counts three, four and five, which charge defendant with possession of cocaine with intent to distribute. We agree. In counts one and two, defendant was charged with possession of PCP and cocaine, respectively. At trial, defendant admitted possessing the drugs. Defendant's prior convictions were admissible for purposes of impeaching defendant's credibility; however, because defendant did not dispute possession of the drugs, there was no issue of credibility pertaining to the charges in counts one and two. We therefore conclude that the judge's failure to sanitize the eluding conviction only requires reversal of the convictions on counts three, four and five.

Defendant also argues that he was denied a fair trial because the assistant prosecutor improperly vouched for the veracity of Mark Levy. Levy's testimony was offered to establish that defendant possessed cocaine with intent to distribute. Therefore, this contention only pertains to the charges in counts three, four and five. In view of our determination to reverse the convictions on those counts, this issue is moot.

Defendant next asserts that the sentence imposed on count four is manifestly excessive and unduly punitive. He further contends that the judge erred in failing to require the prosecutor to state on the record the reasons for seeking an extended sentence. The extended sentence was imposed on count four. Because the conviction on count four must be reversed, these issues also are moot.

Finally, relying upon Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), defendant asserts that his sentences violate his right to a trial before a jury under the Sixth Amendment. See State v. Natale, 184 N.J. 458 (2005). As we stated previously, the judge merged counts two, three and five with count four and sentenced defendant to a seven-year sentence with a forty-two month period of parole ineligibility. The judge imposed a five-year concurrent term on count one. Because the sentence imposed on count four must be vacated, and a separate sentence was not imposed on count two, we consider this contention only as it pertains to the sentence imposed on count one.

Here, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk of re-offense) and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). When sentencing defendant, the judge noted that defendant had acknowledged a history of substance abuse, which began at age 15 and which included the use of marijuana, alcohol, PCP and cocaine. The judge noted that defendant had been doing well in a substance abuse program. The judge stated:

I find the aggravating factors, of the risk that he will commit another offense. He's doing very well in a very controlled environment. This Court is concerned when he is released, going back to his own environment, that his past history of dealing with drugs, that it may return. There is the need to deter this defendant and others from violating the law.

The judge found no mitigating factors and consequently determined that the aggravating factors predominated. She imposed a sentence that was longer than the presumptive term for third degree offenses. N.J.S.A. 2C:44-1(f)(1)(d).

We are convinced that the sentence on count one should be vacated and defendant re-sentenced. The record reflects that the sentence was the result of findings on aggravating factors which were not based solely upon the fact of defendant's prior convictions. The judge's findings were based in part on facts concerning defendant's history of substance abuse and his treatment record. Therefore, defendant is entitled to re-sentencing under the procedures detailed in Natale, supra, 184 N.J. at 495-96.

To summarize, we reverse the convictions and sentences imposed on counts three, four and five. We affirm the convictions on counts one and two. We remand to the trial court for a new trial on counts three, four and five and re-sentencing on count one. The trial judge may defer imposition of a sentence on count two until defendant is re-tried on counts three, four and five.

 
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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A-1048-04T4

 

January 4, 2006