STATE OF NEW JERSEY v. RAYQUAN PURNELL

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2538-05T42358-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYQUAN PURNELL,

Defendant-Appellant.

_____________________________________________________________


Submitted March 14, 2007 - Decided April 3, 2007

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-08-1093.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Catherine Michael, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant, Rayquan Purnell, was found guilty of possession of heroin in the third degree, in violation of N.J.S.A. 2C:35-10a(1); two counts of distributing heroin in the third degree, in violation of N.J.S.A. 2C:35-5a(1); and two counts of distributing heroin within 1000 feet of a school in the third degree, in violation of N.J.S.A. 2C:35-7. Based upon defendant's prior convictions, the State moved for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6f. After granting the State's motion, the trial judge appropriately considered the merger of various counts and imposed an aggregate sentence of imprisonment of eight years with four years of parole ineligibility.

Defendant raises the following points on appeal.

POINT I

THE TRIAL COURT ERRED BY ALLOWING TESTIMONY CONCERNING OTHER CRIMES.

(NOT RAISED BELOW)

POINT II

THE TRIAL COURT ERRED BY ALLOWING DETECTIVE STRADELLA TO GIVE OPINION TESTIMONY.

(NOT RAISED BELOW)

POINT III

THE INEFFECTIVE PERFORMANCE OF COUNSEL DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO A FAIR TRIAL.

(NOT RAISED BELOW)

POINT IV

THE SENTENCE IMPOSED UPON DEFENDANT MUST BE VACATED.

(NOT RAISED BELOW)

Since defendant failed to raise any of these issues before the trial judge, our review is limited to whether any of the alleged errors were "clearly capable of producing an unjust result." R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). After careful consideration of the record in light of the arguments raised, we conclude that defendant's contentions of error are without merit. We therefore affirm.

At trial, the State called Detective John Stradella of the Paterson Police Department regarding the events of April 14, 2004. Stradella was on surveillance in an unmarked minivan observing the front of 144 Goodwin Avenue. He saw defendant and co-defendant, Eugene Poole, on the front porch of the premises, and he saw an individual, later identified as co-defendant Angel Medina, hand Poole paper currency. He then saw defendant hand Medina a small object. Stradella testified that based upon his numerous "surveillance[s] . . . experience and training," he believed he had witnessed a "drug transaction." Stradella radioed the description of Medina's vehicle and license plate to other officers; they stopped Medina and his passenger, co-defendant Angel Rolon, and seized a glassine envelope of heroin.

Stradella continued his surveillance of the property as defendant and Poole left the porch and went inside. He saw a crowd of seven to ten people gather across the street from the property, and, as defendant and Poole re-emerged onto the porch, each member of the crowd approached and entered into a hand-to-hand transaction with defendant and Poole similar to what Stradella previously observed with Medina. Stradella saw one of the unidentified individuals walk past his van holding a small glassine envelope. Although he radioed her description to fellow officers, they could not locate the person.

Stradella then saw a man, later identified as co-defendant Timothy Morrison, approach defendant and Poole on the porch. He witnessed another hand-to-hand transaction and radioed the description of Morrison's vehicle and license plate number to fellow officers. They stopped the car and arrested Morrison and his passenger, co-defendant Robin Rickens, after finding two glassine envelopes of heroin.

Stradella testified that a decision was made to end the surveillance and arrest defendant and Poole; he left his surveillance location after their arrest and proceeded into the hallway area of the premises. There he saw magazine pages "that are commonly used to package what we call bricks of heroin" and rubber bands, "which bind[] together decks of heroin," strewn on the floor. Stradella then testified that he and the other officers found no money on defendant or Poole. He described to the jury that a "stash" was a "supply of [drugs] a dealer would hide or place . . . that he would intend to sell." Stradella testified that a search of the premises revealed no stash or other drugs.

Defendant argues that Stradella's testimony regarding the hand-to-hand transactions with other people who were not apprehended and charged was equivalent to "other crimes" evidence under N.J.R.E. 404(b) and should have been excluded. We disagree.

We considered a similar argument in State v. Ortiz, 253 N.J. Super. 239, certif. denied, 130 N.J. 6 (1992) in the context of Rule 404(b)'s predecessor, N.J.R.E. 55. We said,

[T]he testimony concerning prior drug transactions observed by the detectives during surveillance constituted a part of the res gestae or a continuing course of conduct of defendant. The conduct referred to in the detectives' testimony occurred on the same occasion as that of the arrest. Specifically, the observed transactions occurred within 25 minutes to an hour immediately prior to defendant's arrest. Thus, the testimony concerned the same criminal event. As such, N.J.R.E. 55 does not apply and the testimony is admissible. Additionally, the testimony served to explain the context or setting of the case.

[Id. at 244.]

Here, Stradella's testimony regarding the observations of the various hand-to-hand transactions described the res gestae of the criminal events for which defendant was charged. It was not error to admit the testimony before the jury.

Defendant next argues that the State never sought to qualify Stradella as an expert before the jury, that he was not qualified to give expert testimony, and that his opinion testimony should have been excluded. We disagree with the State's contention that Stradella's opinion testimony -- characterizing the hand-to-hand exchanges as "drug transactions," defining the term "stash," and explaining the drug paraphernalia found at the scene -- was in the nature of lay opinion. N.J.R.E. 701. Those opinions were clearly beyond the ken of a lay person.

Stradella testified based upon his experience as a police officer for twelve years during which time he had participated in five or six hundred narcotics investigations. It is equally clear, therefore, that Stradella would have easily qualified as an expert in the field of narcotics investigations had he been proposed as one by the State. Therefore, although never offered as an expert, nor recognized by the court as one, we can see no prejudice to defendant.

Moreover, we note that defense counsel did not object to any of this testimony. As we have indicated, "The failure to object leads us to conclude that counsel 'did not in the atmosphere of the trial think [the examination] out of bounds.'" State v. Holden, 364 N.J. Super. 504, 512 (App. Div. 2003) (quoting State v. Johnson, 31 N.J. 489, 511 (1960)). Indeed, defense counsel stressed in his summation that since the police found only rubber bands at the scene and no other drugs -- no "stash" -- and no money on either of the co-defendants, a reasonable doubt existed as to whether defendant distributed drugs to the various buyers charged in the indictment. We find no plain error in permitting Stradella to testify as he did.

We decline to consider defendant's Point III. He claims that his attorney's failure to object to the admission of the evidence he challenges in Points I and II, and his failure to adequately advise defendant of the potential for an extended term of imprisonment, demonstrates his ineffective assistance. However, the type of inaction described by defendant would potentially require an evidential hearing to elicit trial counsel's explanation for his behavior. "Our courts have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Defendant is free to raise these issues in an appropriate post-conviction relief petition. R. 3:22-2(a).

Lastly, in Point IV defendant argues that before imposing sentence, the trial judge failed to make adequate findings in support of the aggravating factors he determined existed, and failed to find appropriate mitigating factors. Defendant contends that the judge failed to explain his decision to impose an eight-year sentence.

In State v. Thomas, 188 N.J. 137, 154 (2006), the Supreme Court held that when imposing sentence under N.J.S.A. 2C:42-6f,

[T]he court should []determine defendant's sentence within the extended-term range based on aggravating and mitigating factors found to be present. In balancing those factors, the court shall not be required to start from the fixed point of the previously applicable statutory presumptive sentence for the extended-term range.

[Ibid. (citations omitted).]

The determination of where to set the sentence within the extended term range

remains in the sound judgment of the court -- subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found. On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the entire range.

[State v. Pierce, 188 N.J. 155, 169-70 (2006).]

The trial judge appropriately granted the State's motion for an extended term based upon defendant's two prior convictions for predicate drug offenses under N.J.S.A. 2C:43-6f. He found aggravating factors five (defendant was engaged in organized criminal activity), six (defendant's prior record), and nine (the need to deter defendant and others from violating the law).

N.J.S.A. 2C:44-1a(5),(6), and (9). These were all supported by the evidence in the record. The trial judge relied upon other disorderly persons convictions, not only defendant's two prior drug convictions, in finding aggravating factor six existed. See State v. Dunbar, 108 N.J. 80, 92 (1987) (holding other aspects of defendant's prior record beyond minimum convictions necessary for extended term are appropriately considered in fixing the proper sentence).

Defendant argues the trial judge failed to find appropriate mitigating factors, specifically mitigating factor four (substantial grounds tending to excuse or justify defendant's conduct) and eleven (imprisonment would present excessive hardship to defendant or his dependents). N.J.S.A. 2C:44-1b(4) and (11). He contends that his involvement with drugs at an early age and the fact that he fathered two children should have resulted in a finding that these mitigating factors existed. We disagree.

As the trial judge noted, defendant paid no support on behalf of his two children, and he had no work history. In his pre-sentence report, defendant acknowledged that used marijuana daily, and that he occasionally drank alcohol. The judge did not abuse his discretion in determining that these facts did not support the finding of any particular mitigating factor for sentencing purposes.

Affirmed.


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a2538-05T4

April 3, 2007