STATE OF NEW JERSEY v. STEVEN McNEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2225-03T42225-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN McNEIL,

Defendant-Appellant.

__________________________________

 

Submitted March 15, 2006 - Decided May 16, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Burlington

County, Indictment No. 2000-11-0946.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ruth A. Harrigan,

Designated Counsel, of counsel and on

the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Carol Lee Tang, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Steven McNeil was charged under Indictment No. 2000-11-0946 with several drug-related offenses committed on two separate occasions. Counts one through five describe offenses allegedly committed on January 27, 2000. Specifically: third-degree distribution of cocaine within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (count one); third-degree possession of cocaine with intent to distribute within 1,000 feet of a school property, in violation of N.J.S.A. 2C:35-7 (count two); distribution of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); third-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count four); and third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a (count five).

Counts six through eight describe offenses allegedly committed on March 14, 2000. Specifically: third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7 (count six); possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); and third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a (count eight).

Defendant successfully moved to sever the counts in the indictment according to the dates the alleged offenses were committed. The three counts describing offenses allegedly committed on March 14, 2000 were tried first. The first trial on these three counts resulted in a mistrial. Upon retrial, a jury convicted defendant as to all three counts. The court sentenced defendant to an extended term of nine years with four and one-half years of parole ineligibility.

The trial covering the five counts describing offenses allegedly committed on January 27, 2000 commenced on October 2, 2003. A jury convicted defendant as to these five counts. The court sentenced defendant to a second extended term of nine years with four and one half years of parole ineligibility, to run consecutive to the term imposed in the first trial.

Defendant has appealed both convictions. We limit our review here to issues pertaining to the second trial. We address, in a separate opinion, the issues pertaining to the first trial. As to the second trial, defendant raises the following arguments on appeal.

POINT I

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

POINT II

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL SHOULD HAVE OBJECTED TO SEVERENCE OF COUNTS OF THE INDICTMENT.

B. TRIAL COUNSEL DID NOT PROPERLY INVESTIGATE AND PREPARE THE CASE, WHICH RESULTED IN ADMISSION OF HIGHLY PREJUDICIAL TESTIMONY BY A WITNESS.

POINT III

DEFENDANT SUBMITS THAT HIS SENTENCE WAS EXCESSIVE AND ILLEGAL BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.

We reject these arguments and affirm. We incorporate by reference the facts set out in the companion opinion involving the first trial (State v. McNeil, No. A-6502-03T4), which is being filed simultaneously with this opinion. We add the following additional facts to address the issue raised in Point I, concerning the prosecutor's summation at the trial for counts one through five.

Defendant argues that certain remarks made by the prosecutor in the course of his summation went beyond the scope of fair commentary on the evidence, and improperly attempted to bolster the credibility of a police witness by virtue of his status as a law enforcement officer. As the following passage illustrates, the record does not support defendant's contention.

[On o]ne side of the fence you have two law enforcement officers who came in, swore to tell the truth, and did just that. [On t]he other side of the fence, you have Mr. McNeil testifying before you, having been convicted of six separate indictable convictions. Six. Among them, robbery, terroristic threats, [and] four separate theft offenses. Clearly [this] goes to his credibility. In fact, the judge will talk to you about that.

What else do you have on Mr. McNeil's side of the fence? You have [defense witness] Vanessa DeMoss. What can you say? I mean, she was asked on cross-examination -- the question that was presented to her by Detective Newlin from the Burlington County Prosecutor's Office some time ago:

(Reading)

"Q. Okay, so, in other words, Mr. McNeil made certain promises for you if you would make false statements to the police and also go into court and make false statements, is that correct?"

What was her response?

(Reading)

"A. Yes"

That speaks volumes, ladies and gentlemen. Volumes as to credibility here.

Because there was no objection to these remarks at the time they were uttered, we infer that defense counsel did not consider them prejudicial. State v. Frost, 158 N.J. 76, 84 (1999). The absence of an objection at trial also requires us to review this argument under the plain error standard. R. 2:10-2. Although the comment that the police witnesses told "the truth" was improperly phrased, when considered in its entirety, we are satisfied that the prosecutor's summation was properly based on the evidence presented at trial.

The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant is free to raise the ineffective assistance of trial counsel claim reflected in Point II, in the context of a post- conviction relief petition. State v. Preciose, 129 N.J. 451, 459-60 (1992); R. 3:22-2. By acknowledging defendant's right to this procedural device, we do not express any opinion as to the merits of the arguments raised.

Affirmed.

 

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A-2225-03T4

May 16, 2006