STATE OF NEW JERSEY v. MICHAEL SHORTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5363-03T45363-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL SHORTER,

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 27, 2005 - Decided January 20, 2006

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Essex County, Law Division, 03-06-2186-I.

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

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This appeal is a companion case to State v. Scott, No. A. 5602-03T4, decided this date. Defendant Michael Shorter was tried with co-defendants Phyllip Scott and Danny Mills. The jury found defendant Shorter guilty of all counts contained in Indictment No. 03-06-2186. That five-count indictment charged defendant and co-defendants Rajhon Fuller, Danny Mills, Jovon Riddick and Phyllip Scott with the following offenses: second degree conspiracy to violate the narcotics law, N.J.S.A. 2C:5-2 (count one); third degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count two); third degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5a(1) and b(3) (count three); third degree possession with intent to distribute heroin while on school property used for school purposes or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second degree possession with intent to distribute heroin, while in or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five). Co-defendants Danny Mills and Phyllip Scott, who were tried with defendant Shorter, were also found guilty.

At Shorter's sentencing hearing, the trial judge merged the convictions on counts one through four into count five. The court found that three aggravating factors applied: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-16(6); and the need to deter defendant and others from future violations of the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. Defendant was sentenced to a term of eight years in prison with a four year parole ineligibility.

On this appeal, defendant makes the following assertions of error:

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

POINT II: THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A NEW TRIAL.

POINT III: DEFENDANT IS ENTITLED TO RESENTENCING 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 AND HIS SENTENCE IS EXCESSIVE AND ILLEGAL.

We have considered defendant's arguments in light of the record and applicable law and we find them to be without sufficient merit to warrant reversal or remand. The prosecutor's comments did not exceed the bounds of propriety. Defendant's Point II does not warrant discussion in a written opinion. R. 2:11-3(e)(2); R. 2:10-1; State v. Carter, 91 N.J. 86, 96 (1982) (identifying the standard of review as "whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present"). Finally, defendant's sentence was not excessive. Indeed, it was below the applicable statutory sentencing range.

On April 21, 2003, Officers Pablo Gonzalez, Frank Rusignuolo, Eli Garcia and Jason West, four members of the Newark Police Department, were on duty investigating complaints by residents about narcotics being sold at Twelfth Avenue and South Seventh Street. Officers Gonzalez and Rusignuolo were teamed together to perform surveillance; West and Garcia were partnered as the takedown team to make any necessary arrests.

Just prior to 2:00 p.m., the officers observed unknown individuals in front of a candy store within the targeted area. The officers proceeded to an abandoned building directly across from the individuals on South Seventh Street to conduct their surveillance. Gonzalez and Rusignuolo viewed the area without binoculars. Gonzalez approximated that it was about 100 feet from his vantage point to the street corner he was observing. West and Garcia waited in the basement. They were unable to view the street corner.

Gonzalez testified he viewed a car driven by an individual later identified as co-defendant Rajhon Fuller pull up in front of the candy store. Fuller engaged in "a hand-to-hand transaction" with an individual, later identified as co-defendant, Phyllip Scott. Fuller gave Scott what appeared to Gonzalez to be CDS, heroin, in exchange for money. Scott passed what he received to defendant and co-defendant Mills. Defendant and Mills then separated, each going to a different corner of the intersection. Next, a white male in a white Mazda drove up to Mills and an exchange of drugs for currency took place. Then a black male drove up in a blue Ford and a similar hand-to-hand exchange occurred between that driver and defendant. Mills and defendant appeared to give the proceeds from their respective drug sales to a fourth individual, later identified as co-defendant James Riddick.

After making these observations, Gonzalez and Rusignuolo decided to arrest all of the participants in the suspected drug transactions. They left the abandoned building and drove from the rear of the building toward the corner of Twelfth Avenue and South Seventh Street; however, before the officers reached the corner, the two suspected buyers drove off. They were not apprehended and were never identified. The officers did spot the vehicle driven by Fuller who they suspected of having made the initial exchange that supplied CDS to Mills and defendant. As Fuller's vehicle passed him, Gonzalez recognized that the first three letters of its license plate were identical to those in the citizen complaint that originally gave them notice of the suspected drug activities on Twelfth Avenue and South Seventh Street. At that point, Gonzalez and Rusignuolo decided to arrest Fuller and his passenger. Gonzalez called Officers West and Garcia by cell phone and instructed them to apprehend the individuals he had observed on the corner.

Gonzalez and Rusignuolo discretely made a U-turn and followed Fuller's car. Fuller and an unidentified passenger parked in the area of 137 Littleton Avenue, and the officers pulled in behind that vehicle. Through the rear window of the parked vehicle, the officers, while approaching, observed Fuller hand the unidentified passenger what appeared to Gonzalez to be a brick of heroin. A brick is fifty glassine envelopes of heroin. Upon noticing the police officers behind them, the occupants of the car each fled in different directions. Gonzalez and Rusignuolo split up and chased each occupant on foot. Gonzalez called for assistance on the police radio advising that he and his partner were each in foot pursuit and that Officers Garcia and West would need assistance at Twelfth Avenue as well.

Rusignuolo was unable to apprehend the unidentified male he pursued. Fuller ran into his grandmother's home at 137 Littleton Avenue. Officer Gonzalez received consent from the grandmother to enter the premises and retrieve Fuller. Gonzalez arrested Fuller and obtained written consent from the grandmother to search the room into which Fuller had run. He found no incriminating evidence there.

At roughly the same time at Twelfth Avenue and South Seventh Street, Officers West and Garcia made their way toward the suspects on the corner. Officer West placed Mills under arrest and in a search subsequent to arrest, West discovered fifteen glassine envelopes ("decks") of CDS heroin. Garcia arrested defendant and recovered eight glassine envelopes of CDS heroin.

Backup units arrived at the scene and arrested co-defendants Riddick and Scott. At the completion of the arrest, Officers West and Garcia responded to 137 Littleton Avenue. Once Fuller was taken into custody, all co-defendants and the defendant were taken to police headquarters to be processed. At headquarters a search of co-defendant Scott produced $69, consisting of two ten-dollar bills, five-five dollar bills and twenty-four one-dollar bills. During a search of co-defendant Riddick, the police found $140, consisting of two twenty-dollar bills, three ten-dollar bills, five five-dollar bills and forty-five one-dollar bills. After defendant and all the co-defendants were processed, Officer West performed a field test which confirmed that the seized envelopes contained heroin.

In addition to the testimony of Officers Gonzalez and West, the State presented Detective Reginald Holloway of the Essex County Sheriff's Department as an expert witness in the field of narcotics trafficking. Detective Holloway testified that glassine envelopes are the most common method of packaging heroin for distribution. He testified that drug dealers commonly work in groups where some individuals sell the drugs and then relay the proceeds to another individual called the bank or banker. The sellers would relay the money obtained to the bank to ensure that if either a seller or the banker was arrested, the police would not recover both the drugs and the money. Subsequent to any arrest, the operation could continue either with the sale of the remaining drugs or the use of the remaining currency to purchase drugs to be re-sold.

Mills testified on his own behalf. He stated that he went to the store at Twelfth Avenue and South Seventh Street to buy groceries for his girlfriend and her children. He maintained that after retrieving the items from the store, he paused to speak with defendant when "out of nowhere, this cop car came flying down the street," pulled over and the police officers jumped out of the car with guns drawn and ordered him and defendant to freeze and raise their hands. According to Mills, the police searched him and defendant but found no contraband on them. They were arrested anyway.

Mills further testified that he and defendant were driven in a marked police car toward Sixth Street and, while in transit, the officers came across co-defendant Scott who was doing nothing more than walking along Sixth Street. The officers immediately jumped out of the car and arrested him. The police had no sympathy for Scott's pleas of having a bad leg and ordered him onto the ground, handcuffed him, and put him in the car.

According to Mills, just before the officers could drive off, four or five cop cars arrived at their location. A female officer exited one of the vehicles and ordered another officer to lock up a ten or eleven-year-old boy who did nothing, but was unfortunate enough to be present on Sixth Street. An argument ensued between Scott and the female sergeant about the possible arrest of an innocent boy. Eventually, Mills recounted, the sergeant was persuaded by Scott's argument and let the boy go.

Investigator Carlos Molina also testified on behalf of the defense concerning the distance from the third-floor roof of the vacant building to where the alleged drug transactions allegedly took place. Molina stated that the corner the police observed was about 180 feet from the roof instead of Officer Gonzalez's approximation of 100 feet. On a day when the ground was snow covered, Molina used a measure meter to determine the distance. The meter he used was not offered into evidence. In making the measurements, Molina rounded up certain measurements because of the snow.

The jury returned a verdict of guilty on all counts for defendant and all co-defendants.

Defendant contends the prosecutor made improper comments that require this court to grant a new trial. "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The assessment of the alleged misconduct is guided by the following considerations:

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153, 586 A.2d 85 (1991); see also State v. Scherzer, 301 N.J. Super. 363, 433, 694 A.2d 196 (App. Div.) certif. denied, 151 N.J. 466, 700 A.2d 878 (1997). Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Marshall, supra, 123 N.J. at 153, 586 A.2d 85; Ramseur, supra, 106 N.J. at 322-23, 524 A.2d 188; State v. G.S., 278 N.J. Super. 151, 173, 650 A.2d 819 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460, 678 A.2d 1092 (1996); State v. Ribalta, 277 N.J. Super. 277, 294, 649 A.2d 862 (App. Div. 1994) certif. denied, 139 N.J. 442, 655 A.2d 444 (1995). Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323, 524 A.2d 188. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207, 689 A.2d 173 (App. Div.), certif. denied, 150 N.J. 25, 695 A.2d 668 (1997).

[Id. at 83-84.]

The first issue raised by defendant pertains to the initial hand-to-hand transaction Officer Gonzalez viewed. Counsel for defendant Scott, in closing, attempted to demonstrate with a single piece of paper that Officer Gonzalez could not have seen his client from the roof of the abandoned building receive a deck of drugs. The prosecutor during summation used items in evidence to suggest that Officer Gonzalez had viewed a twenty-deck transaction between co-defendants Fuller and Scott. Defense counsel objected and the judge overruled, instructing the jurors that it was up to their recollection as to what the facts were.

Officer Gonzalez testified that Fuller, the driver of the vehicle, handed Scott what was believed to be CDS heroin. The officer affirmed that he saw Fuller give Scott "objects." Gonzalez never testified as to the exact amount present in that original transaction. Further, Gonzalez never stated that the Fuller-to-Scott transaction was a one-deck deal. Gonzalez stated, however, that immediately following the Fuller-to-Scott transaction, Scott distributed the heroin to Mills and defendant. Subsequently, Gonzalez observed Mills and defendant each make a drug sale. Within minutes of these sales, Officer West and Garcia arrested Mills and defendant. The officers conducted a search of Mills and defendant, which uncovered a total of twenty-three decks of heroin.

The inference suggested by the prosecutor, that the supplier dropped off the twenty-three decks recovered from defendant and Mills, has a reasonable basis in the record. Thus, the prosecutor did not act unfairly and inappropriately by reasoning and suggesting that the drugs found on Mills and defendant came from the original transaction between Fuller and Scott. There is at least as much, if not more support, in the record for that inference as for the contention urged by defendant, that the Fuller-to-Scott transaction was limited to one deck.

The second instance of misconduct raised by defendant relates to the prosecutor's response to the defense characterization of the asserted flaws in the State's case and in particular the response to defense counsels' challenge of the truthfulness and accuracy of the police officers' statements. The prosecutor stated:

But what details did the Defense consider important? Well, Officers, I know you saw a hand-to-hand transaction between Mr. Fuller and the car and Mr. Scott for money, but did you get the license plate? Well, I know you saw Mr. Scott, after he got the drugs, walk around the car and give drugs to Mills and Shorter to go sell, but what direction did he walk around the car.

The prosecutor then characterized these defense arguments as "roadblocks to the truth, the truth that you've discovered through the evidence that the State presented." These comments are the basis for defendant's appeal. Defendant maintains that the prosecutor's comments ridiculed and attacked defense counsel. Also, defendant asserts that these statements inappropriately imply that the prosecutor was telling the jury to believe the State's case which consisted of police testimony and to disregard the defendants' arguments. We do not find the comments went so far.

First, there was no objection made to the prosecutor's statements. Second, the comment merely charges that defense counsel had focused unduly on details that did not detract from the essence of the observations made by the State's witnesses. Beyond that, and looking at the trial as a whole, the cited prosecutorial comments pale in comparison to comments made by counsel for defendants. For example, defense counsel openly implied, without any evidence or support in the record, that since the police have access to drugs, they planted the drugs on defendants. Further, defense counsel anticipated inappropriately that the prosecutor would argue that the officers' testimony should be believed simply because they are police officers. Defense counsel told the jury that the officers would not suffer any repercussions even if they were found to be lying and that the jurors held the defendants' lives in their hands.

The prosecutor's comments countered those accusations without reaching the level of egregiousness urged by defendant to warrant a reversal of conviction. The comments, though similar to those in Frost, did not cross the line of permissible fair comment. The prosecutor made a single statement, noting that defendants' methods for attacking the prosecution's case included overemphasizing details of little consequence. The prosecutor did not attack or disparage defense counsel or his tactics. Unlike in Frost, the prosecutor here did not tell the jury to ignore defense assertions. On the contrary, the prosecutor engaged the defense counsels' points implicitly as not enough to create reasonable doubt and countered with the details that supported the State's case.

Balanced against comments by defense counsel, who without any evidence, suggested the police have access to drugs, and that they planted the drugs on defendant, the State's response was fair and tenable. In our view, the comments were not so egregious as to have had the capacity to produce an unjust result. Frost, supra, 158 N.J. at 83.

Defendant contends the trial judge erred by sentencing him in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to eight years in prison. He argues the eight-year term is greater than the seven-year presumptive term for the offense of which he was convicted and is based on facts that were not found by the jury beyond a reasonable doubt other than a prior conviction. Our Supreme Court recently held that a sentence above the presumptive statutory term, based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee. State v. Natale, 184 N.J. 458, 482 (2005) (Natale II). Accordingly, the Court eliminated the presumptive terms from the sentencing process under New Jersey's Code of Criminal Justice. Id. at 487; State v. Abdullah, 184 N.J. 497, 504-05 (2005). "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second degree offense, N.J.S.A. 2C:43-6(a)(2). In all other respects, the sentencing process will remain essentially unchanged." Natale II, supra, 184 N.J. at 487.

Here, we reject defendant's argument that his Sixth Amendment rights were violated as his sentence did not exceed the former presumptive term for the offense of which he was convicted. The transcript of the sentencing hearing reflects that the judge stated that counts one through three merged into count four. He continued, "They merge into count five which is second degree possession with intent to distribute within five hundred [feet] of school property and I will merge that and sentence you to extended term on count four and count five and sentence you to five years." Clearly, the judge misspoke when he said he was sentencing defendant to five years, but in the judgment of conviction the sentence imposed was eight years. In the discussion that preceded the judge's statement of his intent, defendant's attorney had requested that the extended sentence be applied to the third degree offense charged in count four, for which the presumptive extended term would have been seven years. The prosecutor recommended that defendant be sentenced to prison for "the maximum sentence allowed, ten with five."

In the judgment of conviction, the first four counts were merged into count five and defendant was sentenced to eight years with a period of parole ineligibility for one-half of the sentence, four years. N.J.S.A. 2C:35-7. Count five was a second degree offense, so the ordinary statutory sentencing range would be between five and ten years and the range for an extended term would be between ten to twenty years. Consequently, instead of receiving a sentence in excess of the presumptive term, defendant was the beneficiary of a sentence that was more lenient than that prescribed for an extended term for the second degree offense. Under such circumstances, Blakely is not contravened nor implicated.

The State, without having filed a cross-appeal, argues that defendant should be sentenced to at least a minimum of ten years because the trial judge failed to impose the extended term in accordance with his intention stated on the record. Though we are mindful of the Court's observation that a "defendant does not have a right to a windfall sentence under an unconstitutional scheme," Natale II, supra, 184 N.J. at 492, the leniency of defendant's sentence appears to have been due to a simple, detectable mistake in sentencing, not due to implementation of the newly announced constitutional rule. On the present record, however, we decline to increase the sentence.

The State did not seek to amend the judgment and did not file the permissible cross appeal. See, e.g., State v. Horton, 331 N.J. Super. 92, 101 (App. Div. 2000) ("Even assuming that the sentence is 'illegal,' the State had an obligation to raise the issue in a timely fashion."); State v. Mays, 321 N.J. Super. 619, 634 (App. Div. 1999), certif. denied, 162 N.J. 132 (1999) (declining to remand in light of the State's failure to cross-appeal). But see, State v. Baker, 270 N.J. Super. 55, 76 (App. Div. 1994) (recognizing, where the State had cross-appealed that a court has authority to correct an illegal sentence at any time).

In our view, justice requires that defendant's sentence remain eight years. His appeal was taken in apparent good faith, in light of the uncertainty about the implications of the Blakely decision on the sentence that was imposed. Because the State neither moved for reconsideration of the sentence nor filed a cross-appeal, we decline to impose a greater sentence than was ordered by the trial judge.

 
Affirmed.

In its brief, the State incorrectly stated that Gonzalez testified to a brick of heroin in the initial transaction. The observation of a brick of heroin relates, however, to a different transaction later observed by Officer Gonzalez; it was not the subject of the summation comments in question.

In Frost, the prosecutor suggested that the jurors dismiss defense counsel's arguments as "lawyer talk," stating "don't be distracted by 'lawyer talk.' I'd ask you this. When you go into the jury room and an individual starts talking about, what about that lock-time out, time out. That's lawyer talk." Frost, supra, 158 N.J. at 81.

(continued)

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A-5363-03T4

January 20, 2006