STATE OF NEW JERSEY v. EMILIO RIVERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4520-04T44520-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMILIO RIVERA,

Defendant-Appellant.

__________________________

 

Submitted July 26, 2006 - Decided August 15, 2006

Before Judges Wecker and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-12-4596.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

James P. Lynch, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Emilio Rivera was convicted of three related third-degree drug offenses: possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a(1); possession of CDS with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); and possession of CDS with intent to distribute within 1000 feet of school property in violation of N.J.S.A. 2C:35-7. After merging the first two counts into the third count, and after granting the State's motion for an extended term, the trial judge sentenced Rivera to ten years in prison with a five-year parole bar.

Rivera appeals from his conviction, contending that the trial court erred in ruling that defendant's prior convictions could be used to impeach his credibility; that the prosecutor made improper comments in summation; that his conviction was against the weight of the evidence; that his counsel was ineffective; and, in contentions not raised below, that the trial court gave improper jury instructions with respect to constructive possession of drugs, evaluation of the school zone charge, and the standard used to evaluate the evidence. Defendant also challenges the sentence.

I

The trial commenced on October 19, 2004. At a Sands hearing held prior to jury selection, defense counsel objected to the admissibility of defendant's prior convictions in the event defendant should testify at trial. The trial judge excluded evidence of defendant's 1981 conviction for manslaughter, because the State did not have a certified copy of the conviction. After analyzing the Sands factors, however, the judge admitted defendant's 1987 conviction for possession of a handgun, his two 1994 convictions for burglary, and his 2001 convictions for certain persons not to have weapons and receiving stolen property:

As stated in [Sands], the key to exclusion is the remoteness. [Sands], however, does deal with the situation where an individual has convictions over a period of time. . . [Defendant] has a '87 conviction for possession of a handgun, a '94 conviction for two counts of burglary, a 2001 conviction for certain persons not to have weapons, as well as receiving stolen property. Therefore, his convictions, even excluding the homicide . . . would span from 1987 through 2001.

["]Moreover, it is appropriate for the trial court in exercising [its] discretion to consider intervening convictions between the past convictions and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating his contempt for the [bounds] of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath regarding veracity on the witness stand than a law-abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crimes, although committed many years before, as well as the intervening convictions, should be admissible.["]

Accordingly, in this matter I find that the probative value is outweighed by any prejudice to the defendant.

[quoting Sands, supra, 76 N.J. at 145.]

With respect to the "school zone" issue, before jury selection both counsel stipulated to admission in evidence of a map demonstrating the location of the school zone where defendant was apprehended and the local ordinance approving the map. Defendant did not raise any issue concerning whether the property in question was being used for school purposes. Defense counsel also agreed that the trial judge could instruct the jury that the map was prepared and adopted "'for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes.'"

Two witnesses testified at trial. According to Patrolman Benjamin Vautier, a twelve-year veteran of the Camden Police Department, on November 11, 2003, he was conducting surveillance for drug activity "in the area of 27th and Kramer." He had received many complaints about drug activity in that area and had made over a hundred drug arrests there. While conducting surveillance with high-powered binoculars, he observed defendant, whom he described as wearing "a blue bandanna tied around . . . his forehead, and a gray t-shirt," engaging in three transactions that appeared to be drug sales:

I saw the defendant standing in [an] open lot, people approaching him, giving him money, and then I would observe him walk along a fence near the back of the Westfield Pharmacy. He would bend down near a green . . . dumpster, pick up a 7-Eleven cup, remove an item from it, bury the cup back underneath some debris, walk up to the individual, do a quick hand-to-hand transaction. The individual would probably get in his car or walk off.

He explained the nature of "hand-to-hand" drug purchases, in which the customers "have the money balled up and they walk up like they're giving somebody a handshake, and they do the old give one hand and in return give something else real fast. And then they just take off out of the area." He also explained that it is common for drug dealers to hide their drugs. In court, he identified defendant as the person whom he saw selling the drugs on November 11, 2003. He also described the three buyers. He was unable to arrest them, because he was working alone with no back-up officers on site.

Vautier eventually called for back-up officers to come to the scene and arrest defendant. During the call, he kept defendant under surveillance through the binoculars so that he could guide the back-up officers to defendant's exact location. After defendant's arrest, Vautier recovered the 7-Eleven cup, which contained sixteen bags of a substance that proved to be heroin.

Vautier also testified to the school zone map, and identified the arrest location as being within 1,000 feet of the Dubly School. He testified that the Dubly School is an elementary school which, to his personal knowledge, was still in operation. The State also presented testimony from a School Board employee, who identified the school as being in use as an elementary school on the date of defendant's arrest. The parties stipulated to the State Police laboratory report establishing the identity and quantity of the drugs Vautier seized at the scene.

In his summation, defense counsel argued to the jury that "[t]he only issue in this case is whether or not the officer directed the arrest at the correct individual, [defendant]." On that issue, he argued that Vautier was not a credible witness: "Now would he lie? He might. Can he make a mistake? Well, the last time I checked police officers were human, too." In response, the prosecutor argued that Vautier was a credible witness despite the lack of specificity in certain aspects of his testimony:

I submit to you that the testimony of Officer Vautier was credible. And that is all we have. It's not like 1984 and Big Brother's watching from all the different cameras that are floating around looking at us, recording every little thing we do. We don't live in that kind of society, thank God. But we do have men and women who put themselves on the line everyday, like Officer Vautier does.

Defense counsel immediately objected to the comment about police officers putting themselves "on the line," but he did not request any curative instruction, nor did he move for a mistrial.

Defense counsel did not object to the judge's proposed jury instructions or to the jury interrogatories. In charging the jury on the school zone offense, the judge instructed them that

In addition to proving the possession with intent to distribute, the State also must prove beyond a reasonable doubt that this occurred within 1,000 feet of any school property.

The term school property means any property which is used for school purposes and is owned or leased to any elementary school or secondary school or school board.

The corresponding jury interrogatory asked the jurors whether defendant possessed heroin with intent to distribute it, "within 1,000 feet of school property used for school purposes."

II

On this appeal, defendant raises the following points:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS FOR POSSESSION OF A HANDGUN, BURGLARY, CERTAIN PERSONS NOT TO HAVE WEAPONS AND RECEIVING STOLEN PROPERTY COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10).

POINT II: THE COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10).

POINT III: THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO CONSTRUCTIVE POSSESSION, HOW TO EVALUATE THE [STATE'S] PROOFS WITH RESPECT TO THE SCHOOL ZONE COUNT AND THE STANDARD USED TO EVALUATE THE EVIDENCE, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 1.

POINT IV: THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION FOR A NEW TRIAL CONSTITUTED AN ABUSE OF DISCRETION AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V: THE FAILURE OF TRIAL COUNSEL TO OBJECT TO THE JURY INSTRUCTIONS AND TO MOVE FOR A JUDGMENT OF ACQUITTAL AFTER THE STATE'S CASE IN CHIEF AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI: THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING A). AN EXTENDED TERM OF IMPRISONMENT AS HE FAILED TO SUBSTANTIATE HIS DETERMINATION THAT THERE WAS A NEED TO PROTECT THE PUBLIC AND B). A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERM AS THIS DETERMINATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW.

A. The Trial Judge Abused His Discretion In Imposing An Extended Term Of Imprisonment As He Failed To Substantiate His Determination That There Was A Need To Protect The Public.

B. The Trial Judge Abused His Discretion In Imposing A Term Of Imprisonment Greater Than The Presumptive Term As This Determination Violated Defendant's Constitutional Rights To A Trial By Jury And Due Process Of Law.

We will not address Point V here, because a claim of ineffective assistance of counsel is more properly raised in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992). Our decision is therefore without prejudice to defendant's right to raise this issue in a PCR application. Having reviewed the record we conclude that defendant's remaining arguments concerning his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

The trial court's decision to admit defendant's prior convictions for impeachment purposes was entirely consistent with State v. Sands, supra. Not only did defendant have an "extensive prior criminal record" in the time intervening between the first admissible conviction and the instant offense, Sands, supra, 76 N.J. at 145, but his convictions for burglary and receiving stolen property involve crimes of dishonesty. Id. at 144.

We also find no grounds for reversal in the prosecutor's brief comment in summation, concerning police officers "who put themselves on the line everyday, like Officer Vautier does." The comment was made in the context of responding to defense counsel's implication that the witness may have "lied." Defense counsel immediately objected, but he asked as a remedy only that the prosecutor not repeat that type of comment, and the prosecutor complied.

Defendant contends that the comment was an improper attempt to bolster Vautier's credibility by referring to the fact that he was a police officer. The State counters that the statement was intended to imply that the witness was only doing his job and had no motive to lie. While we agree with defendant that the prosecutor's comment was inappropriate, upon review of the entire trial transcript we are thoroughly convinced that it had no capacity to deprive defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 323 (1987).

Likewise, we find no plain error in the trial court's jury instructions, to which defense counsel raised no objection. R. 1:7-2; R. 2:10-2. Defendant contends that the trial judge should have instructed the jury that defendant's "mere presence" at the scene did not constitute constructive possession of the drugs. See State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987). We disagree. The judge gave the jury thorough and clear instructions on the concepts of possession and constructive possession. There was no factual basis in this case for a "mere presence" charge. Defendant was not accused of being merely present in the area where the drugs were recovered. See State v. Montesano, 298 N.J. Super. 597 (App. Div.), certif. denied, 150 N.J. 27 (1997). The State's case was based on evidence that defendant was observed exercising actual control over the drugs as well as selling to buyers. Defendant's remaining contentions concerning the charge are completely without merit and require no further discussion. R. 2:11-3(e)(1)(E).

The verdict was not against the weight of the evidence. Respecting, as we must, the jury's prerogative to make credibility determinations, the verdict was entirely consistent with the evidence presented at trial. R. 3:20-1; R. 2:10-1; State v. Afandor, 134 N.J. 162, 178 (1993).

Finally, we address defendant's arguments concerning the sentence. Defendant challenges the judge's decision to sentence him to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), specifically objecting to the judge's conclusion that he was a person from whom the public needed protection. Defendant also objects to the court's imposition of a ten-year sentence, which was the maximum extended term that could be imposed.

We remand for reconsideration of the sentence for two reasons. First, in State v. Thomas, ___ N.J. ___ (2006), the Supreme Court made clear that defendants given a sentence above the presumptive term based on aggravating factors (3), (6) and (9) are entitled to a remand under the principles set forth in State v. Natale, 184 N.J. 458 (2005). As the Court stated in Thomas, assessment of these factors inevitably involves more than considering a defendant's prior criminal record:

[I]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment that we want and expect the court to make. A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.

[slip op. at 23]

Therefore, although the sentencing judge here based the sentence on factors relating to defendant's prior criminal record, we must remand.

Second, in the companion case of State v. Pierce, ___ N.J. ___ (2006), the Court modified the analysis to be used in sentencing a defendant to a discretionary extended term under N.J.S.A. 2C:44-3(a). Under Pierce, once the court determines that a defendant meets the minimum statutory criteria to be sentenced as a persistent offender, the court may sentence the defendant anywhere within the broad range from the minimum sentence available as an ordinary term up to the maximum sentence permitted as an extended term. Pierce, supra, slip op. at 27. Applying Natale, the Pierce Court further held that the sentencing judge is no longer bound by the "presumptive" extended term. Id. at 21-22.

In remanding for reconsideration of the sentence in Pierce, the Court noted that

defendant may benefit through the resentencing because the court may consider the full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range.

[Id. at 27.]

We conclude that Pierce also requires that we remand this matter to the trial court for reconsideration of the sentence. On remand, the sentencing judge shall follow the procedure set forth in Pierce to determine whether defendant is eligible for an extended term. Id. at 19. If so, the judge shall then, using any applicable aggravating and mitigating factors, determine defendant's sentence within the broad range described by Pierce as "the full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range." Pierce, supra, slip op. at 27.

The convictions are affirmed. The sentence is vacated, and the matter is remanded for resentencing consistent with this opinion.

 

State v. Sands, 76 N.J. 127 (1978).

(continued)

(continued)

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A-4520-04T4

 

August 15, 2006