STATE OF NEW JERSEY v. RICHARD D. HENRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6208-03T46208-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD D. HENRY,

Defendant-Appellant.

__________________________________

 

Submitted April 5, 2006 - Decided June 30, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

02-12-3009-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (John Vincent

Saykanic, Designated Counsel, on the

brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A.

Foddai, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

This is defendant's appeal from his conviction for selling crack cocaine to an undercover detective at a park located near a school. On December 23, 2002, the Grand Jury returned Indictment No. S-3009-02, charging defendant as follows: Count 1, third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and -5b(3); Count 2, third-degree distribution of a controlled dangerous substance (heroin/cocaine) near or on school property, N.J.S.A. 2C:35-7; Count 3, second-degree distribution of a controlled dangerous substance within 500 feet of public housing N.J.S.A. 2C:35-7.1; and Count 4, third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). The jury found defendant guilty on all counts.

Defendant was sentenced on April 6, 2004 to an eight-year state prison term with a three-year parole disqualifier on the second-degree distribution conviction (Count 3). He received concurrent four-year terms on Counts 1, 2, and 4. We reverse.

I

The jury heard the following testimony. On August 22, 2002, responding to complaints from the neighborhood, officers from the Hackensack Police Department set up a surveillance of Anderson Street Park in Hackensack, which is located approximately twenty-five feet from Hackensack Christian School. The plan involved Hackensack Police Detective Sybel, his partner, Detective Anthony Ferraioli, and Paterson Narcotics Detective Robinson. Detective Robinson was given a $20 bill and was to attempt an undercover buy of narcotics in the park. Detective Sybel testified that "the $20 bill" was not photocopied, and its serial number was not recorded. Detectives Sybel and Ferraioli accompanied Robinson to the park, acting as surveillance and back-up. They parked next to the entrance, and watched Robinson walk into the park. They remained seventy or eighty feet away from Robinson when he approached the alleged drug seller.

Detective Robinson approached a person he later identified in court as defendant, asking, "'Are you working?' meaning 'Are you dealing?'" He testified that this individual was wearing a "St. Louis jersey, blue and white, with thirteen affixed across the front, and a black doo-rag [head scarf]." Detective Sybel described the individual wearing "a St. Louis Rams Jersey No. 13. He had blue jeans on, tan work boots. . . ." The jury learned that sunset occurred at 7:44 p.m. that night. There was testimony that the park had lights but no one testified whether the lights were on at the time. Detective Robinson testified that the following transpired:

[A]nd he at that time he asked me, he says, "How many do you want?" I replied, "Give me two." At that time, he says, "Give me the cash first." . . . I handed him the money, and he . . . reached into his pants and retrieved two loose rocks . . . .

. . . .

It appeared to be two loose rocks of suspected crack.

Detective Sybel testified that he saw Robinson walk into the park. He was at least eighty feet away when he saw Robinson talk to a person dressed in a St. Louis Rams football jersey. He saw that person reach into the front of his pants and then saw an exchange take place between the two. It was about 8:00 p.m. and still light out, and he could see the face of the individual who sold the drugs to Robinson. He knew the individual and identified him in court as defendant. Detective Sybel was not using binoculars or a camera during that surveillance. In cross-examination, he admitted that he needs glasses at night, and that five months after this incident his eye doctor gave him a stronger prescription.

After the drug buy, at Hackensack police headquarters, Detective Sybel showed Detective Robinson photographs of six African-American males with similar characteristics; one photograph was that of defendant. Robinson identified the photograph of defendant as the person who sold him the drugs, and both detectives initialed the photograph. At police headquarters, the rocks were placed in a bag and tagged. The rocks, weighing 0.19 grams, later tested positive for cocaine. In order to protect Detective Robinson's identity as he continued his investigation and undercover narcotics buys, the police waited to arrest defendant until October 24, 2002. Defendant was on probation for another crime at the time.

Defense counsel sought to cross-examine Detective Sybel in regard to one prior inconsistent statement, using a transcript of his grand jury testimony. At trial, he testified that the $20 bill that Robinson was given to buy the cocaine was not marked or otherwise recorded. But before the grand jury, he had testified as follows:

Q On August 22nd, you and Detective Robinson went out to make undercover buys. Is that correct?

A Yes.

Q And prior to going out on the street and making undercover buys, you and Detective Robinson discussed briefly where he would go and what type of drugs he would try to buy. Is that correct?

A That's correct.

Q And he was also given $20. Is that correct?

A Yes.

Q And the serial numbers were recorded or it was marked in some way?

A Yes.

Defendant offered two women as alibi witnesses. Donna Stayback, the mother of one of defendant's children, testified that between August 18 and August 23, 2002, defendant was staying with her because her mother and stepfather had left for vacation. Stayback testified that defendant was with her the entire day of August 22, that her mother and stepfather returned home at about 9:00 p.m. that night, and that they took defendant (who did not drive) home the next day, August 23. Stayback testified that she knew defendant had been arrested in October of 2002 but did not advise anyone of his alibi until the Monday of trial. Stayback testified that she did not come forward sooner because after having a discussion with someone from the prosecutor's office, she felt intimidated.

Q Please tell the jury what your concern was.

A That when she was talking to me, she told me that I better not get up there if I don't - if I don't know what I'm saying because they will catch me if I'm lying.

Q And how did that make you feel, ma'am?

A Intimidated.

Another woman, Jessica Oquendo, testified that she conceived one of defendant's children in August 2002. She saw defendant almost every day that month, often meeting him at Anderson Street Park or at her home on Anderson Street in Hackensack. She testified that defendant typically picked her up in a blue car, and that he said the car belonged to Stayback's mother. The longest period she did not see defendant during this time was for two days in late August, over one weekend.

Oquendo was no longer involved in a relationship with defendant and was angry with both Stayback and defendant. Defendant had once obtained a restraining order against her. Oquendo also testified that although she had told investigators she had a serious relationship with defendant beginning in March 2002, she had lied; the relationship really had not become serious until July.

During deliberations on October 2, 2003, the jury requested and received a playback of Detective Robinson's recorded testimony. On October 3, during continued deliberations, the jury requested and received a playback of Detective Sybel's testimony. On October 6, the jury returned its verdict, finding defendant guilty on all counts.

At sentencing, the judge found aggravating factors 3 (risk defendant will commit another offense), 6 (extent of defendant's prior record), 9 (need to deter defendant and others), and 11 (fine without imprisonment would be considered cost of doing business). See N.J.S.A. 2C:44-1a. The judge addressed the possibility of mitigating factors 1 (the crime caused no threat of harm), 9 (unlikely to commit another offense based on the defendant's character and attitude), and 11 (imprisonment would entail excessive hardship), but found neither they nor any other mitigating factors applied. See N.J.S.A. 2C:44-1b(12), (9), and (11). The judge then sentenced defendant to a total of eight years imprisonment with three years of parole ineligibility.

II

On appeal, defendant presents these arguments:

POINT I

THE TRIAL JUDGE ERRED IN NOT GRANTING A WADE HEARING IN VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND STATE RIGHT TO A FAIR TRIAL; U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

POINT II

THE PROSECUTOR EXCEEDED ALL BOUNDS OF PROPRIETY IN HER CLOSING STATEMENT AND DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL; U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

POINT III

THE TRIAL JUDGE ERRED IN BARRING THE USE BY THE DEFENSE OF THE GRAND JURY TRANSCRIPT DURING THE CROSS-EXAMINATION OF DETECTIVE SYBEL; DEFENDANT'S SIXTH AMENDMENT CONFRONTATION RIGHTS WERE VIOLATED ALONG WITH HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL; U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.

POINT IV

PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT AND STATE CONSTITUTION; U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10 (PARTIALLY RAISED BELOW).

POINT V

THE DEFENDANT'S SENTENCE IS EXCESSIVE, NOT IN CONFORMANCE WITH CASE LAW AND THE SENTENCING GUIDELINES, AND IS VIOLATIVE OF THE SIXTH AMENDMENT AND APPRENDI, BLAKELY, AND NATALE; THE DEFENDANT SHOULD BE RESENTENCED TO A TERM OF FIVE YEARS WITH A THREE YEAR PAROLE DISQUALIFIER.

We have carefully considered the record in light of defendant's contentions on appeal. We find insufficient merit in defendant's arguments in Points I, II and IV to warrant further discussion in a written opinion. See R. 2:11-3(e)(2). We are convinced, however, that defendant's right of confrontation was violated when the trial judge refused to permit defendant to cross-examine Detective Sybel regarding his inconsistent grand jury testimony, as defendant argued in Point III. We therefore reverse defendant's conviction and remand for a new trial.

III

Defendant contends that he should have been permitted to use Detective Sybel's grand jury testimony to impeach him at trial, and that the error was prejudicial because the jury demonstrated it had questions about this witness's testimony when it asked for the playback.

The State contends that defense counsel repeatedly failed to follow court rules, which led the trial court to preclude defendant from using the grand jury testimony. The State also argues that even if the trial judge erred, defendant suffered no prejudice because the issue involved in that portion of the detective's testimony was not a crucial factor in the trial.

It is plain from the record that defense counsel was discourteous to the court and to his adversary on many occasions during the trial, even arguing with the trial judge after certain rulings. Both attorneys repeatedly interrupted each other. It also appears that defense counsel was late in producing certain other items of reciprocal discovery. We do not condone such conduct by any attorney. Nonetheless, sanctions for an attorney's inappropriate conduct cannot be allowed to infringe on a criminal defendant's right to a fair trial.

A trial judge has substantial discretion in evidentiary rulings, and abuse of discretion is the standard of review. See, e.g., Benevenga v. DiGregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991)), certif. denied, 163 N.J. 79 (2000). Even if a judge's discretionary ruling is mistaken, reversal is warranted only if the ruling is "clearly capable of producing an unjust result." R. 2:10-2.

When Detective Sybel testified before the grand jury, he testified that the serial numbers of the $20 bill given to Robinson for buying drugs had been marked or recorded. But during the trial, when asked the same question, he testified that the serial numbers had not been marked or recorded. After that trial testimony, defense counselor sought to cross-examine Detective Sybel on his previous testimony before the grand jury. The prosecutor objected and argued that defendant should be barred from using the grand jury transcript to cross-examine because defense counsel did not provide the State with the transcript, as allegedly required by the discovery provisions of R. 3:13-3.

The judge noted his frustration with defense counsel for repeatedly failing to comply with court rules:

Both of you have an absolute right, an absolute obligation to furnish discovery. And if you're going to use a document, to provide notification.

I just don't know why we're having such difficulty with identification of exhibits that you know that you're going to use. If you ordered something, you must have realized that you were going to utilize it.

You didn't order a transcript unless you had some thought in mind as to the use of this transcript. You wouldn't be involved in that cost.

So what I'm having difficulty with is your reluctance to follow the rules of discovery.

Defense counsel argued that the State had notice of the detective's grand jury testimony because it was the State that presented the case to the grand jury. Defense counsel assumed that the prosecutor had received a copy of the grand jury transcript, although he did not personally supply it. Rule 3:6-6(6) required the defense to serve the prosecutor with the transcript request, and the State has not denied receiving a copy of that request.

The prosecutor argued that although the State normally would not claim that a failure to supply the transcript should bar its use by a defendant, the sanction was justified here because of the alleged totality of circumstances, including:

"the fact that on the day of trial the alibi witness was given to the State. On the next day after the trial was supposedly scheduled a Wade hearing was requested even though the photos had been supplied prior to that." The prosecutor went on: "I specifically requested the transcripts, Judge, whether it was on the record or not, [defense counsel] is not disputing that I asked him."

A defendant must supply the State with documents in his possession, including written statements made by any person the State has listed as a witness, as part of reciprocal discovery. R. 3:13-3(d)(4). The purpose of R. 3:13-3 is "to avoid having the State confronted at trial for the first time with written statements . . . which may be used to attack the veracity of the witnesses' courtroom testimony. Discovery of such statements, . . . which defendant intends to use at trial, is entirely proper." State v. Williams, 80 N.J. 472, 478 (1979). But this is not a case where defendant had access to the statement of a State's witness that was not available to the State. Nor does it appear that the defense would have planned to use the grand jury transcript on its own case. It is axiomatic that the State knew about and had equal access to the detective's grand jury testimony. The State had an independent right to request the transcript. See 3:6-6(b). There is no indication of unfair surprise here, and the State would have suffered no unfair prejudice if the cross-examination had been permitted.

We recognize that whether the bill in fact was marked or not was immaterial to the State's proofs; when defendant was arrested some two months later, he would not be expected to have in his possession the same $20 bill he had accepted from Detective Robinson. But the State's case hinged largely on the credibility of Detective Sybel. The inconsistency between the detective's grand jury testimony and his trial testimony was relevant to his credibility as to both veracity and accuracy. Detective Sybel's conflicting statements could have damaged his credibility before the jury, casting doubt on his identification of defendant as the park drug seller.

Detective Sybel's ability to see and identify defendant was a material issue. The identity of the drug seller in the incident was the whole case. The surveillance took place after sunset, there were trees in the park, Detective Sybel was a substantial distance away from the location of the alleged drug sale, he was not using binoculars, and he received a new prescription for eyeglasses six months later.

After re-hearing Detective Robinson's testimony, the jury was unable to agree on a verdict. Some jurors apparently questioned Robinson's identification of defendant. The jury then requested the opportunity to re-hear Sybel's testimony, and shortly thereafter found defendant guilty on all counts. That the jury could not reach agreement after re-hearing Robinson's testimony, but did reach agreement after re-hearing Sybel's testimony, suggests that Sybel's testimony was a significant factor in helping the jury reach a unanimous decision.

Cross-examination is a key tool for impeaching a witness's credibility. See, e.g., State v. Martini, 131 N.J. 176, 255 (1993). The credibility of the identification testimony obviously was key to the defense; the identity of the person who sold drugs to Detective Robinson was the essence of the case. We conclude that depriving defendant of the opportunity to cross-examine Detective Sybel on his grand jury testimony had the potential to lead the jury to an unjust result.

IV

As to Point V, respecting defendant's sentence, we include the following brief guidance for the court on retrial.

Defendant's conviction on Count 2 should have merged with Count 3 because both arose from the same criminal transaction: a single drug sale. The mandatory parole disqualifier required on Count 2 would survive the merger into Count 3. N.J.S.A. 2C:35-7.1; State v. Parker, 335 N.J. Super. 415, 420-21 (App. Div. 2000). Additionally, the trial judge improperly considered aggravating factor 11 when he sentenced defendant. Aggravating factor 11 (the cost of doing business) was not applicable here because defendant was convicted of a second-degree offense, which carried a presumption of imprisonment. See State v. Dalziel, 182 N.J. 494, 502 (2005) ("By its very terms, that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence.").

Reversed and remanded for a new trial.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458 (2005).

Apparently, the defense requested the transcript on a "same-day," expedited basis during the trial. Defense counsel represented that the transcript request had to be and was "approved" by the prosecutor's office. The prosecutor did not dispute those representations.

(continued)

(continued)

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A-6208-03T4

June 30, 2006