STATE OF NEW JERSEY v. DALE E. JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1979-04T41979-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DALE E. JOHNSON,

Defendant-Appellant.

________________________________________

 

Submitted May 17, 2006 - Decided June 5, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 03-10-3612.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, of counsel and on the brief).

James P. Lynch, Acting Camden County

Prosecutor, attorney for respondent,

(Nancy P. Scharff, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Dale E. Johnson appeals from a final judgment of conviction and sentence. The grand jurors for Camden County returned a two-count indictment charging defendant with third- degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one) and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3) (count two). Tried to a jury, defendant was convicted of both charges. The trial judge merged count one into count two. On the State's application and defendant's admission to eligibility as a repeat drug offender, the judge was required to sentence defendant to an extended term and a mandatory minimum period of parole ineligibility. N.J.S.A. 2C:43-6f. The judge imposed the presumptive seven-year extended term, three of which must be served without possibility of parole. He also assessed a $1000 DEDR penalty, a $75 lab fee, a $50 VCCB assessment, a SNSF assessment of $75 and a LEOTEF penalty of $30, and he required defendant to provide a DNA sample and pay the costs of testing that sample.

Officer Ruiz of the Camden Police Department testified about his observations of defendant on the night that he committed the crimes charged. Ruiz, who had been employed by the Department for fourteen years, was assigned to watch for drug transactions in an area known as a common location for that activity. He dressed in plain clothes and positioned himself on the porch of a residence. The homes on the opposite side of the street were vacant and boarded up, and there was an alley and a vacant lot on that side of the street. The street was illuminated by street lights and a light on one of the porches.

Ruiz noticed defendant at approximately 10:15 p.m., when a heavyset man approached him. Ruiz saw defendant take something from a plastic bag and exchange it for something the heavyset man gave to him. Although Ruiz first testified that he saw defendant accept currency from the man, he corrected that testimony and explained that he just saw a transaction "hand to hands."

After observing that transaction, Ruiz left the porch and went around the corner to the rear of the vacant lot. From that position, he saw defendant run into the lot, retrieve a plastic bag from the lot, take it to the street and exchange an item from the bag with a second man. Ruiz called for assistance from other members of the Department assigned to the detail. As they moved in, "someone yelled out that the police were coming." At that point, defendant ran in the direction of Ruiz. Ruiz identified himself as on officer, and defendant tossed the bag he was carrying. Defendant was arrested, and the bag was recovered. It contained twenty-one ziploc bags. The defendant and State stipulated that those bags contained cocaine.

Defendant did not testify or present any evidence.

On appeal defendant argues:

I. THE COURT ERRED IN DENYING DEFENDANT'S

MOTION FOR A NEW TRIAL BECAUSE THE JURY

VERDICT WAS AGAINST THE WEIGHT OF THE

EVIDENCE, RESULTING IN A MANIFEST

DENIAL OF JUSTICE.

II. THE COURT ERRED IN DENYING DEFENDANT'S

MOTION FOR A MISTRIAL, ON THE BASIS OF

A GRATUITOUS AND PREJUDICIAL REMARK

MADE BY THE PROSECUTOR DURING HER

OPENING ARGUMENT.

A. IN THE CONTEXT OF THE SUMMATION

[SIC] AS A WHOLE, THE PROSECUTOR'S

MISCONDUCT WAS SO EGREGIOUS AS TO

DEPRIVE THE DEFENDANT OF A FAIR

TRIAL.

III. THE SENTENCE IMPOSED BY THE COURT WAS

MANIFESTLY EXCESSIVE.

Our review of the record convinces us that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add a brief explanation for that conclusion with respect to each argument.

We see no clear and apparent miscarriage of justice warranting reversal of the trial court's denial of defendant's motion for a new trial. See State v. Sims, 65 N.J. 359, 373-74 (1974). Neither the trial court nor this court should "disturb the findings of a jury merely because it might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 133-34 (App. Div.), certif. denied, 102 N.J. 312 (1985) (citing State v. Hodgson, 44 N.J. 151, 162-63 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966)). The testimony of Officer Ruiz, if believed, and the stipulated facts were more than adequate to support this verdict, and the defense presented no evidence that called the officer's testimony into question.

Defendant's claim that the judge erred in denying his motion for mistrial has no foundation in this record. Defendant did not move for a mistrial on any basis at anytime. To the contrary, defendant's trial counsel acknowledged that his objection to the prosecutor's remark, which he refers to as "gratuitous and prejudicial" on appeal, "was resolved." Trial counsel's expression of satisfaction with the manner in which the issue was addressed indicates that, in the context of the trial, "the defense did not believe that, the prosecutor's comments were prejudicial." State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Wilson, 57 N.J. 39, 51 (1970).

Defendant's argument is based on the following brief statement made by the prosecutor in opening argument:

I just said to you that the officer saw what he believed was a sale, why isn't the defendant charged with selling a controlled dangerous substance[?] That is a charge that --

At sidebar, defense counsel explained his objection as follows: "We're getting far afield of what the indictment charges and

. . . exploring things that aren't in the indictment. I just don't see that this has any relevancy." The judge offered to direct the jurors that defendant was not charged with the crime of selling drugs. Defense counsel responded, "I prefer we just move away." The judge directed the prosecutor that she could argue on the basis of the officer's observations as relevant to intent without referencing charges that were not at issue in this case. The prosecutor complied with the judge's direction.

During deliberations, the jurors asked the judge, "Is there a different charge for sale of a controlled substance?" The judge answered that question as follows:

Members of the jury, that is not before you. What is before you is the two counts of the indictment for possession of a controlled dangerous substance and possession of a controlled dangerous substance with the intent to distribute it. Yes, there is a separate charge for sale. That is not part of this case. You have to concentrate on the charges before you and you have to determine whether the State has met their burden of proof and proved the defendant's guilt beyond a reasonable doubt and you have all the appropriate law for that.

In denying defendant's motion for a new trial, Judge Natal concluded that the prosecutor's remarks were neither improper nor prejudicial and that the Court's response to the jury's question was required in order to prevent the jurors from speculating about the law and consistent with this court's decision in State v. Marcus, 294 N.J. Super. 267 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998). We agree.

Defendant raises two objections to his sentence. Neither have merit.

Defendant claims that his sentence to a mandatory extended term that is based on his prior conviction for possession of a controlled dangerous substance with intent to distribute violated his right to a trial by jury. That claim is inconsistent with the cases upon which he relies. A trial judge is "authorized to sentence the defendant within a range consistent with . . . the defendant's prior convictions." State v. Natale, 184 N.J. 458, 481-82 (2005) (citing Blakely v. United States, 542 U.S. 296, 302, 124 S. Ct. 2531, 2541, 159 L. Ed. 2d 403, 412 (2004)).

Defendant also argues that his sentence is excessive. Judge Natal found three aggravating factors and no mitigating factors and imposed the presumptive extended term and a period of parole ineligibility that was mandatory. See N.J.S.A. 2C:43-6f. We are satisfied that the judge applied properly the standards and guidelines of the Code and based the sentence upon findings that are both supported by the record and clearly explained. See State v. Carey, 168 N.J. 413, 427-30 (2001); State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Hodge, 95 N.J. 369, 376 (1984); State v. Roth, 95 N.J. 334, 363 (1984); Johnson, supra, 203 N.J. Super. at 137.

Affirmed.

 

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A-1979-04T4

June 5, 2006