STATE OF NEW JERSEY v. DALE FOAT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0679-06T40679-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DALE FOAT,

Defendant-Appellant.

___________________________________

 

Submitted May 7, 2008 - Decided:

Before Judges Sapp-Peterson and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-622; 05-01-47; 05-08-1075.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

The Middlesex County Grand Jury returned Indictment Number 05-05-00622 on May 4, 2005, charging defendant Dale Foat with third degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one), third degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(b)(3) (count two), third degree possession with intent to distribute heroin on or near school property, N.J.S.A. 2C:35-7 (count three), third degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) (count four), and third degree distribution of heroin on or near school property, N.J.S.A. 2C:35-7 (count five). Codefendant Lorenzo Taylor was charged in count one. Following a trial, the jury convicted defendant on all counts as charged.

On December 22, 2005, defendant entered into a plea agreement with the State and pleaded guilty to Indictment Number 05-01-00047, charging him with eight counts of CDS violations, including school zone and public place charges. The State recommended a seven-year term of imprisonment, three and one- half years without parole, to be served concurrently with the sentence imposed under Indictment Number 05-05-00622.

On March 24, 2006, defendant appeared for sentencing, however, he also pleaded guilty on this date to count three of Indictment Number 05-08-01075, charging him with third degree possession with intent to distribute CDS on or near school property. The State agreed to recommend a sentence of five years in prison, two and one-half years without parole, which was to run consecutively to the sentence to be imposed under Indictment Number 05-05-00622.

The trial judge granted the State's motion to sentence defendant to an extended term under N.J.S.A. 2C:43-6(f) on the indictment from which the jury found defendant guilty on all charges. The judge merged count one into count two, merged count two into count three, and merged count four into count five. On counts three and five, the judge imposed concurrent sentences of ten years in prison, five years without parole. A total VCCB penalty of $100, a $2,000 DEDR penalty, a $50 lab fee, a $150 SNSF assessment and a $30 LEOTEF penalty were also imposed.

After merging all counts on Indictment Number 05-01-00047, except counts four (third degree distribution of CDS, N.J.S.A. 2C;35-5(a)(1), 5(b)(3) and seven (second degree distribution of CDS on or near a public building, N.J.S.A. 2C:35-5(a), 35-7.1), the judge followed the renegotiated sentence recommendation from the State and imposed two, concurrent terms of five years in prison, with two and one-half years without parole eligibility on each count. A total VCCB penalty of $100 was imposed, as well as a $2,000 DEDR penalty, a $150 SNSF assessment, a $50 lab fee and a $30 LEOTEF penalty.

On Indictment Number 05-08-01075, the trial judge imposed a five year term of imprisonment, two and one half years without parole, that was to run consecutively to the sentence imposed on Indictment Number 05-05-00622, but concurrently with the sentence imposed on counts four and seven on Indictment Number 05-01-0047. The judge also imposed a $50 VCCB penalty, a $1,000 DEDR penalty, a $75 SNSF assessment and a $30 LEOTEF penalty. The aggregate sentence for the three indictments is fifteen years in prison with a seven and one-half year period of parole ineligibility. Defendant appeals.

On appeal, the State agrees with defendant's position that he is entitled to a resentencing on counts three and five of Indictment Number 05-05-00622, relying upon State v. Thomas, 188 N.J. 137 (2006). In State v. Thomas, sentencing courts were instructed to resentence defendants within the statutory extended term range, based upon the aggravating and mitigating factors present, but without consideration of the former presumptive terms. Id. at 151-52, 154. The State also correctly points out that under N.J.S.A. 2C:44-5(a)(2), only one extended term may be imposed and that the judgment of conviction should only reflect one extended term and one sentence within the normal range.

Except to remand for resentencing on counts three and five on Indictment Number 05-05-00622, we affirm.

The relevant facts developed at trial may be summarized as follows. On March 16, 2005, right before noon, Lieutenant Paul Schuster (Schuster), head of the New Brunswick Police Department Anti-Crime Unit (ACU), was conducting a surveillance operation in an area of the city known for its drug activity when he received a tip from a confidential informant that drugs where being sold on the corner of Remsen Avenue and Hale Street. Schuster discontinued the surveillance operation he was conducting, and moved the surveillance vehicle he was driving to Hale Street. Schuster parked the surveillance vehicle approximately 150 feet from the corner of Remsen and Hale, and 60 feet from defendant's brother's house, located at 174 Hale Street. Schuster was able to observe the corner and the front of the house.

Schuster observed defendant, dressed in the clothing described by the confidential informant, on the corner of Remsen and Hale talking to a man named Maurice Hawkins (Hawkins). After watching defendant and Hawkins converse briefly, Schuster watched defendant walk to 174 Hale Street. When defendant reached the residence, he nervously looked up and down the street. He then bent down and took a white paper packet from under a bush. Defendant unwrapped the white paper packet and removed a light colored item. Defendant then replaced the white paper packet under the bush. Defendant walked back to the corner of Remsen and Hale and gave the light colored item to Hawkins. Hawkins gave defendant cash in exchange for the item. After receiving the item from defendant, Hawkins opened the packet and snorted its contents while walking away.

As soon as Hawkins had left the area of Remsen and Hale, a green Neon pulled up and stopped. The driver, Lorenzo Taylor (Taylor), had a brief conversation with defendant. Following his previous routine, defendant walked back to 174 Hale Street, removed the same white paper packet from under the same bush, took an item from the packet and replaced the packet under the bush. Defendant returned to Taylor's car, passed the item through the open driver's side window, and received cash in return. Schuster believed he had just observed a drug transaction.

Taylor drove away after receiving the packet from defendant. Schuster, who had been in contact with his back up units, described Taylor's car, including the plate number, and instructed them to stop the vehicle. The detectives found one packet of heroin on Taylor. Schuster instructed another back up unit to arrest defendant.

After arresting defendant, the detectives watched 174 Hale Street until Schuster could move the surveillance vehicle from the scene and return on foot. When Schuster arrived at 174 Hale Street he found a white napkin wrapped around a plastic bag that contained a total of fourteen packets of heroin under the bush from which defendant had twice removed a white paper packet. Ten of the packets were marked with the brand name "Barcode," one packet was marked with the brand name "Rush," and one was not marked. The packet of heroin taken from Taylor was also marked with the brand name "Barcode."

Taylor pled guilty to a misdemeanor disorderly persons offense and testified at defendant's trial. Taylor did not identify defendant, but admitted he was driving a green Neon and bought drugs from someone on Hale Street on March 16, 2005.

On appeal, defendant raises the following arguments:

POINT I: THE TRIAL COURT ERRED BY FAILING TO APPROPRIATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF THE CO-DEFENDANT'S GUILTY PLEA. (NOT RAISED BELOW)

POINT II: THE TRIAL COURT FAILED TO ADEQUATELY RESPOND TO THE JURY'S REQUEST TO "SEE" THE TESTIMONY OF THE VARIOUS WITNESSES, AND EFFECTIVELY DISCOURAGED IT FROM REQUESTING SPECIFIC ASPECTS OF TESTIMONY THEREAFTER. (NOT RAISED BELOW)

POINT III: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)

POINT IV: THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. THOMAS WITH RESPECT TO INDICTMENT NO. 05-05-622-I.

POINT V: THE SENTENCE IMPOSED WITH RESPECT TO INDICTMENT NO. 05-01-47-I AND INDICTMENT NO. 05-08-1075-I WAS MANIFESTLY EXCESSIVE.

By way of a supplemental brief, defendant pro se raises the following points for our consideration:

POINT I: THE COURT ERRED IN NOT SUPPRESSING EVIDENCE THAT WAS RETRIEVED WITHOUT A WARRANT OR EXIGENT CIRCUMSTANCES. (NOT RAISED BELOW)

POINT II: INEFFECTIVE COUNSEL BY DEFENSE ATTORNEY VIOLATED THE RULES OF PROFESSIONAL CONDUCT.

POINT III: THE DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE.

POINT IV: STATE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF PROSSESSION OF A CONTROLLLED DANGEROUS SUBSTANCE, POSSESSION WITH THE INTENT TO DISTRIBUTE AND POSSESSION WITH THE INTENT TO DISTRIBUTE ON OR NEAR SCHOOL PROPERTY, DISTRIBUTION AND DISTRIBUTION ON OR NEAR SCHOOL PROPERTY, THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON THESE CHARGES: MOREOVER, THE VERDICT ON THESE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE.

With respect to defendant's pro se brief, the arguments made are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only these very brief comments.

The trial court properly denied defendant's pretrial motion to suppress the heroin found under the bush in front of 174 Hale Street. Schuster saw defendant retrieve the drugs from his "stash," supporting a seizure under the plain view exception to the warrant requirement. State v. Ford, 278 N.J. Super. 351 (App. Div. 1995).

Defendant's contentions that his trial attorney was ineffective in his representation and violated the Rules of Professional Conduct are issues best left for post-conviction relief because the claims involve allegations and evidence that lie outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992).

The trial judge properly denied defendant's motion for acquittal during trial. The guilty verdict returned by the jury was not against the weight of the evidence. Indeed, the evidence of defendant's guilt was overwhelming, based on Schuster's observation of two drug sales, retrieval of the stash, and the match of the brand of heroin purchased by Taylor with the seized stash. Even had defendant filed a motion for a new trial, it would have been rejected. There was no manifest denial of justice under the law, much less by the clear and convincing standard of proof required under Rule 3:20.

Except for the State properly agreeing with defendant's Point IV that a remand for resentencing on Counts three and five was required as previously discussed, the other points raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We, however, add the following comments with respect to Point I.

Defendant argues that his conviction must be reversed and remanded for a new trial because the trial judge erred when she failed to give a sua sponte limiting instruction concerning Taylor's guilty plea. It is defendant's contention that he was severely prejudiced by the judge's oversight.

In a recent decision, our Supreme Court discussed on a plain error basis the failure of a trial judge not to provide a limiting instruction, where it was not requested, when a person who pled guilty testified against his or her co-defendants. State v. Adams, ____ N.J. ____, ____ (2008)(slip op. at 26-29). The Court held that a trial court's failure to give a limiting instruction detailing the permissible use of a co-defendant's guilty plea does not constitute plain error unless the failure was "clearly capable of bringing about an unjust result" when viewed in light of the complete charge to the jury and the trial as a whole. Ibid.

In State v. Adams, a consolidated appeal, co-defendants Adams, Comer, and Harrison were charged with various offenses stemming from several robberies and a murder. Id. at 12-13. After the men were charged, Harrison entered into a plea agreement and "pled guilty to various charges in exchange for a recommended concurrent sentence of 20 years with an eighty-five percent parole bar. The sentence could be lowered depending on the quality and quantity of [his] testimony against the other defendants." Id. at 5. Adams and Comer were convicted after a jury trial and sentenced to extensive prison terms. Id. at 12-13.

At trial, Harrison testified against Adams and Comer pursuant to the terms of his plea agreement. State v. Adams, supra, slip op. at 23. He acknowledged that he had entered a guilty plea in exchange for a recommended sentence of 20 years with an eighty-five percent parole disqualifier. Ibid. He also acknowledged that his plea bargain required him to testify against his co-defendants. Ibid. Defendants' counsel did not request a limiting instruction on the permissible uses of Harrison's guilty plea or object to the jury charge at trial. Id. at 41-42.

The Court determined that, in the absence of a request to do so, when a trial judge does not furnish a limiting instruction concerning a co-defendant's guilty plea the question is "whether in the context of the trial, the error was clearly capable of bringing about an unjust result." Id. at 26. The Court determined that the trial judge's error did not rise to the level of plain error, noting that defense counsel thoroughly challenged Harrison's credibility on cross, emphasized Harrison's lack of credibility in closing argument, and "asserted that Harrison was a liar." Id. at 29. Furthermore, Harrison's testimony independently established his guilt and "therefore, his guilty plea added little weight to the testimony." State v. Adams, supra, slip op. at 29.

So too here. While Taylor pled guilty and testified against defendant, he was unable to identify defendant as the man who sold him heroin. The prosecutor also brought out that Taylor had pled guilty to a disorderly persons offense for "failure to make required disposition of the drugs to a police officer" during her direct examination. Taylor admitted that he was driving a green Neon and purchased drugs from someone on Hale Street on March 16, 2005. On cross examination, defense counsel elicited from Taylor that he did not know if testifying against defendant was a condition of his plea deal, but that he believed that it was. The plea documents did not indicate that Taylor was required to testify against defendant as part of his plea agreement.

In closing argument, defense counsel used Taylor's guilty plea and inability to identify defendant to defendant's advantage, while also attacking Taylor's credibility. Defense counsel argued,

Clearly you heard Mr. Taylor say he couldn't identify Dale Foat. How do we have we need two people to conduct a drug transaction. Mr. Taylor said I can't I.D.

* * *

Mr. Taylor today, it should be fresh in your mind, came in. I can't I.D. him. It's totally incredible. He had a reason to come here and testify. He stated as a condition of his deal, he got a sweet deal, two years probation, condition of that he got probation. He got probation to testify.

* * *

Is he credible? He has a prior. Can he look at you guys? I don't think so.

The judge included instructions to the jury on making credibility determinations. Defense counsel did not object to the charge and only specifically requested that the judge charge the jury concerning defendant's right not to testify and the presumption of innocence.

Viewing the trial in its totality and the jury charges as a whole, the trial judge's failure to give a limiting instruction was not "clearly capable of bringing about an unjust result." Taylor could not identify defendant, which may have worked to defendant's advantage. Like Adams, defense counsel cross-examined Taylor regarding the details of his plea agreement, and used the existence of the agreement to attack Taylor's credibility in closing. Finally, the trial judge gave the jury clear instructions regarding witness credibility. Thus, we are satisfied that the judge's failure to instruct the jury on a co-defendant's testimony fell far short of satisfying plain error to require a reversal of defendant's conviction.

Except to remand for resentencing on counts three and five of Indictment Number 05-05-00622, the judgments of convictions on all three indictments are affirmed.

 

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A-0679-06T4

May 23, 2008