STATE OF NEW JERSEY v. ALI SHAKUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5319-03T45319-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALI SHAKUR,

Defendant-Appellant.

_________________________________________

 

Submitted: November 14, 2005 - Decided January 27, 2006

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-03-1136.

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

Peter C. Harvey, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Ali Shakur, was convicted of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3) and third degree distribution of cocaine, N.J.S.A. 2C:35-5b(3). The judge merged the three convictions, granted the State's motion for extended term sentencing, and imposed a seven-year term with a three-year period of parole ineligibility.

The proofs can be summarized as follows. On November 13, 2001, Newark Police Sergeant Daryl White and Officers Michael Daye and Yalette Burgos were in an unmarked vehicle conducting a narcotics surveillance in Littleton Avenue in Newark. At that time, the officers saw defendant standing in a driveway. A man, later identified as Dennis Kurt, approached defendant. Kurt had a conversation with and then gave defendant an unknown amount of paper currency. Defendant took the money, reached into his right pocket and pulled out a clear, plastic sandwich bag. Defendant gave Kurt an "unknown amount from that package."

The officers believed that a drug transaction had occurred. Therefore, they exited the vehicle, approached the two men and announced that they were police. Defendant dropped the bag and fled. White chased and caught defendant a few steps away. Day picked up the plastic bag, which contained fifty-two vials, each capped with a pink top. Kurt dropped the vials he was holding. Burgos arrested him. Three randomly selected vials were later tested by the police and they tested positive for cocaine. Cash, in the amount of fourteen dollars, was recovered from defendant's person.

Kurt testified for the State that he ventured into Newark on the evening of the arrest with the intent to buy drugs. He identified defendant as the man from whom he had purchased the drugs. He paid $10 for the drugs. He asserted that his testimony was not part of a plea agreement, but admitted that a condition of his plea was to testify against defendant and "tell the truth."

Defendant testified that, on the night of his arrest he went home, dropped off his barber tools and then went to the "Chicken Shack" to get something to eat. He met Kurt and his girlfriend on the way to the "Chicken Shack." Defendant saw the police officer's car double parked in the street. The police officer rolled down his window and asked him if he had anything. Defendant responded, "What the 'F' you think I look like?" Whereupon the officers got out of the car. White approached defendant, who shoved him out of the way. White threw Shakur to the ground, cuffed him and then escorted him to the police car. Kurt was also cuffed and put into the car. Defendant denied having any drugs on him that night. He explained that the $14 represented his tips from a day of work. He admitted to two prior convictions in 1992 and in 1996.

At a charge conference, the State requested a flight charge. Defendant objected, arguing that he had not departed from the scene. The judge charged the jury on flight.

In summation, the Assistant Prosecutor said:

This is not a case about some arcane[,] out-there legal theory. This is about distribution of drugs in your community, in our community in Essex County.

The judge addressed this comment by telling the jury: "This is not a forum about the pros and cons of drug use in the community." She continued:

Your purpose this afternoon is to make a decision as the triers of fact about whether or not the State has proven beyond a reasonable doubt that Ali Shakur is guilty of the charges against him. Again, hearing that comment is not to affect you or influence you in any way. In other words, ladies and gentlemen, you are not evaluate [sic] the evidence that I have allowed you to consider in this trial. You are not to evaluate that evidence from the perspective of how you feel about drugs in our community. Do you understand that?

On appeal, defendant contends:

POINT I

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WERE FATALLY FLAWED AND DEPRIVED DEFENDANT OF A FAIR AND IMPARTIAL TRIAL.

The transcript provided to us states that during the jury charge on prior bad acts, the judge reportedly said:

You have heard that Mr. Shakur has previously been convicted of a criminal offense. This evidence may only be used in determining the credibility or believability of the defendant's testimony. You may conclude that the defendant charged here simply because the defendant committed the crime on another occasion. (emphasis added)

. . . .

For the purpose of the testimony you did hear . . . there was no discussion about the nature of the prior conviction and you are not to speculate or infer anything about the lack of information on that subject.

. . . .

Remember, our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the defendant and for no other purpose. You are not, however, obligated to believe Ali Shakur is not credible simply because of a prior conviction. It is evidence you may consider along with all the other factors we previously discussed in determining any witness' credibility.

We note that defendant's trial counsel did not object to the charge. From the lack of objection, and the fact that the judge followed very closely the model jury charge on "Proof of Other Crimes, Wrongs or Acts" (N.J.R.E. 404b), we consider the possibility that the transcriber may have made a clerical error and omitted the word "not" from the sentence: "You may [not] conclude that the defendant committed the crime on another occasion." For that reason, we order sua sponte that the matter be remanded to the Law Division, Essex County, for the limited purpose of reconstructing the record, pursuant to R. 2:5-3(f), of that portion of the charge dealing with the instruction. See State v. Kozarski, 143 N.J. Super. 12 (App. Div.), certif. denied, 71 N.J. 532 (1976).

Defendant also contends that the judge should not have charged flight. We disagree. We note first that the flight charge is a "discretionary ruling." State v. Long, 119 N.J. 439 (1990). Proof of defendant's flight from the scene of a crime is admissible for its probative value. "Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). Specifically, "Evidence of flight or escape from custody by an accused is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." Ibid.

In Mann, the Supreme Court held, "In those instances in which the trial court deems the evidence of flight admissible, it must instruct the jury carefully regarding the inferences the jury may draw from that evidence," Id. at 420, and that, "An adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Id. at 421.

Here, we conclude that the judge correctly charged the jury. There was evidence of flight, albeit disputed. The judge was obliged to charge flight because such an inference was factually based on the evidence. State v. Powell, 84 N.J. 305, 318 (1980).

Defendant next contends that:

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION.

This issue was raised for the first time on appeal.

Defendant relies on State v. Goode, 278 N.J. Super. 85 (App. Div. 1994), to support his argument that the Assistant Prosecutor's comments were improper. However, here the comment regarding drugs in the community is distinguishable from the comment in Goode. The Assistant Prosecutor did not present a "make a difference in your community" theme throughout her case as the prosecutor had done in Goode. Moreover, the judge made clear to the jury that their job was to weigh the evidence presented to them and not consider the community as a whole. No such curative instruction appears to have been given in Goode. Thus, this appears to have been an isolated reference which was properly addressed by the judge. We conclude that the comment did not constitute a plain error warranting reversal. R. 2:10-2.

Next, defendant contends:

POINT III

DEFENDANT MUST BE RESENTENCED SINCE HE WAS NOT PROVIDED WITH ADEQUATE NOTICE OF HIS EXTENDED SENTENCE AS REQUIRED BY N.J.S.A. 2C:44-6E AND HIS SENTENCE IS THEREFORE ILLEGAL.

The crux of this contention is that the State did not reference the statutory provision in their motion papers. We note that the certification accompanying the State's motion for imposition of an extended term states, "Defendant is eligible for discretionary extended term pursuant to N.J.S.A. 2C:44-3(a) and R. 3:21-4(e). In addition, defendant is eligible for mandatory extended term in that he has previously been convicted of PWI." Defendant's argument appears to be that N.J.S.A. 2C:43-6f was not specifically cited in the certification.

This argument is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). On its face, N.J.S.A. 2C:43-6f does not require the specific statute be referenced to adequately provide notice to the defendant. It requires only that the mandatory term be applied upon application of the prosecuting attorney and that the prosecuting attorney provide the basis for the sentencing at a hearing.

Finally, defendant contends:

POINT IV

THE SENTENCE IMPOSED BELOW WAS EXCESSIVE.

Defendant points out that Jeff Fleischer from the Youth Advisory Program submitted a letter on his behalf. The gist of this letter was that defendant was not violent and was trying to turn his life around despite chemical dependency in his youth.

The judge noted Fleischer's letter as establishing a statutory mitigating factor, namely that defendant's "character and attitude are such that it may be unlikely that [he] will commit another offense." N.J.S.A. 2C:44-1b(9). But, the judge ultimately found that the one mitigating factor was outweighed by the two aggravating factors. Specifically, aggravating factors (3) the risk he will commit another offense; and (9) the need to deter others from violating the law.

We find that the judge applied the correct guidelines and that there was substantial evidence to support the facts on which defendant was sentenced. State v. Roth, 95 N.J. 334 (1984). The sentence does not shock our judicial conscience. Id. at 364-65. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989).

Accordingly, we reject on their merit Points II, III and IV. The matter is remanded for a reconstruction of the record of the N.J.R.E. 404b charge contention (Point I). The reconstructed record shall be filed with the Clerk of the Appellate Division no later than March 6, 2006.

 
Remanded. We retain jurisdiction.

(continued)

(continued)

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A-5319-03T4

January 27, 2006