STATE OF NEW JERSEY v. FORLANG SPENCER

This case can also be found at 199 N.J. 541, 973 A.2d 944.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3068-05T42910-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FORLANG SPENCER,

Defendant-Appellant.

__________________________________________________

 
 

Submitted September 8, 2008 - Decided -

Before Judges R. B. Coleman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-01-0042.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel, on the brief).

PER CURIAM

Defendant Forlang Spencer was arrested on October 16, 2003, and charged with third-degree conspiracy, contrary to N.J.S.A. 2C:35-5 and N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count two); second-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-56(2) (count three); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count four), and second degree possession of CDS with intent to distribute on or near a public park, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count five). On January 13, 2004, a grand jury indicted defendant on those charges (Indictment No. 04-01-00042). On January 25, 2005, a jury convicted defendant on counts two, three and four.

Defendant was released on bail for the charges in Indictment No. 04-01-00042 when he was arrested on November 3, 2003, and charged with second-degree eluding, contrary to N.J.S.A. 2C:29-2b; third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and fourth-degree unlawful possession of a large capacity ammunition magazine, contrary to N.J.S.A. 2C:39-3j. On December 23, 2003, a grand jury indicted defendant on those charges (Indictment No. 03-12-1636). On November 8, 2004, a jury convicted defendant on the eluding charge.

On February 25, 2005, Judge Cantor sentenced defendant on Indictment No. 03-12-1636 to a seven-year term of imprisonment. The judge also imposed the appropriate assessments, penalties and fees. On Indictment No. 04-01-00042, the judge merged counts two and three into count four and sentenced defendant to a consecutive five-year term of imprisonment with a thirty-month period of parole ineligibility. The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for eighteen months.

On appeal, defendant raises the following contentions:

POINT I: THE PROSECUTOR'S COMMENTS DURING THE TRIAL AND IN CLOSING CONSTITUTED MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL AND REQUIRES REVERSAL OF HIS CONVICTIONS. [Partially raised below].

- A -

Questioning the Detective About the Defendant's Employment During the Trial.

- B -

The Prosecutor's Comment During Summation.

POINT II: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO ISSUE A CAUTIONARY INSTRUCTION TO THE JURY CONCERNING THE FACT THAT THE DEFENDANT WAS WEARING PRISON CLOTHES ON THE FIRST DAY OF JURY SELECTION, NOTWITHSTANDING THE FACT THAT COUNSEL SPECIFICALLY ASKED THAT IT NOT BE GIVEN. IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INSISTING ON THIS CAUTIONARY INSTRUCTION REGARDLESS OF THE FACT THAT DEFENDANT CHOSE TO WEAR CIVILIAN CLOTHES FOR THE REMAINING DAYS OF THE TRIAL. [Partially raised below].

- A -

The Court should have issued a curative instruction.

- B -

Ineffective Assistance of Trial Counsel.

POINT III: CERTAIN ASPECTS OF THE COURT'S CHARGE TO THE JURY VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. [Not raised below].

POINT IV: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE STATE INTRODUCED EVIDENCE THAT JOSE SANTIAGO AND IVAN LAMA WERE KNOWN COCAINE USERS WITHOUT HAVING THOSE TWO INDIVIDUALS TESTIFY; UTILIZED THAT INFORMATION AS PART OF THE BASIS FOR THE STATE'S EXPERT OPINION; AND RELIED ON THIS INFORMATION IN THE STATE'S SUMMATION. AT THE VERY LEAST, THE COURT SHOULD HAVE CONDUCTED A N.J.R.E. 403 HEARING TO DETERMINE IF THE PREJUDICIAL IMPACT OF THE INFORMATION WAS SUBSTANTIALLY OUTWEIGHED BY ANY PROBATIVE VALUE AND SHOULD HAVE SUA SPONTE ISSUED A CAUTIONARY INSTRUCTION WITH REGARD TO THIS TESTIMONY. [Partially Raised Below].

POINT V: THE STATE'S EXPERT, SERGEANT BRIAN CAFFREY TESTIFIED TO THE ULTIMATE ISSUE OF GUILT IN THIS CASE IN AN AREA NOT BEYOND THE KEN OF THE AVERAGE LAYPERSON, THEREBY INTRUDING ON THE JURY'S EXCLUSIVE PROVINCE TO DETERMINE GUILT OR INNOCENCE. THE COURT'S GATEKEEPER ROLE REQUIRED IT TO HAVE PRECLUDED ADMISSION OF THIS TESTIMONY EVEN THOUGH THE DEFENDANT DID NOT OBJECT TO IT BELOW. THE INTRODUCTION OF THIS TESTIMONY HAD THE CAPACITY TO CAUSE AN UNJUST RESULT REQUIRING REVERSAL OF HIS CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE AND POSSESSION WITH INTENT TO DISTRIBUTE AT OR NEAR SCHOOL PROPERTY. [Not raised below].

POINT VI: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES. AT THE LEAST, THE DEFENDANT IS ENTITLED TO A REMAND FOR A NATALE HEARING TO DETERMINE THE APPROPRIATE BASE TERM TO BE IMPOSED IN THIS MATTER AND FOR A DETERMINATION WHETHER THE STATE HAD LEGITIMATE REASONS TO REFUSE TO WAIVE THE MANDATORY PAROLE INELIGIBILITY TERM.

We reject these contentions and affirm.

The following facts are summarized from the record. On October 16, 2003, at approximately 9:30 p.m., Detectives Robert Estrada and Carmelo Jimenez of the Perth Amboy Police Department Narcotics Division Special Investigations Unit were on narcotics patrol in their unmarked police vehicle in the area of Market and Olive Streets, a known high narcotics area. Estrada was dressed in plain clothes with his badge displayed on a chain on his chest. While driving west on Market Street, Estrada observed a black Acura Integra parked southbound at the corner of Olive Street, facing east. From a distance of approximately ten to fifteen feet, Estrada saw a black male, later identified as defendant, in the Acura's driver's seat and a female, later identified as Tamika Green, in the passenger seat. The officer also saw Jose Santiago, "a known drug user . . . [who is] always in the area[,]" standing by the passenger side talking to Green.

As Estrada continued toward the Acura, he saw Santiago reach into the passenger window and hand Green what appeared to be money. Green then handed Santiago "an object," which Santiago placed in his pocket. Estrada drove past the Acura, made a u-turn at the corner of Market and Grant Streets, and parked approximately one car length behind the Acura. Santiago continued talking to Green but began walking toward the corner of Market and Olive Streets when he noticed Estrada's vehicle. Santiago then ran into a house on that corner.

The officers pulled out of their parking space in an attempt to stop Santiago. However, they decided not to pursue him. Instead, they followed the Acura, which began heading east on Market Street. When the Acura made a left turn onto McClellan Street, Estrada saw a Hispanic male, later identified as Ivan Lama, flagging down the Acura. The Acura stopped in the middle of the roadway. Lama approached the vehicle and spoke to defendant, who opened his door. Estrada pulled his vehicle alongside the Acura, and both he and Jimenez exited with Estrada approaching the driver's side and Jimenez approaching the passenger's side. After Estrada identified himself as a police officer, he saw defendant clench his left fist then lower it, dropping a clear plastic baggie containing a white, rock-like substance. Believing the substance was crack cocaine, Estrada immediately retrieved the baggie and placed defendant under arrest. The arrest occurred within 1000 feet of the McGinnis School. A subsequent search of defendant revealed four individually-wrapped items believed to contain crack cocaine and $1289 in cash.

Upon approaching the passenger's door, Jimenez observed Green holding a white Styrofoam cup in her right hand and $40 in her left hand. The cup contained what appeared to be a baggie of marijuana. Jimenez opened the passenger door, grabbed the cup from Green and placed her under arrest.

I.

We first address defendant's allegations of prosecutorial misconduct. The first allegation concerns a question the prosecutor asked Jiminez about whether he recalled if defendant indicated he was employed at the time of the incident. Defense counsel objected to the question and sought a mistrial.

Jiminez never answered the question. Judge Cantor instructed the jury that defendant's employment status was irrelevant and that they were to disregard the question and not speculate as to its answer. The judge later instructed the jury that "where I have sustained objections to some questions asked by attorneys, which may have contained a statement of fact, or certain facts, the mere fact that an attorney asks the question . . . in no way proves the existence of those facts."

Relying on State v. Mathis, 47 N.J. 455 (1966) and State v. Terrell, 359 N.J. Super. 241 (App. Div.), certif. denied, 177 N.J. 577 (2003), defendant argues that even without an answer, the mere asking of the question was improper because it placed his economic status in issue before the jury implying that an unemployed person would have a motive to be a drug dealer. Defendant argues that the judge's instructions failed to adequately advise the jury to disregard the inference that an unemployed person would have a motive to commit the crimes charged. We disagree.

In Mathis, supra, the defendant was charged with murder during an attempted robbery. 47 N.J. at 461. During his trial testimony, the prosecutor asked the defendant when he last worked. Id. at 469. The defendant responded that he worked for his father from time to time in repairing automobiles at his father's home. Ibid. Rebuttal witnesses testified that they never saw the defendant working at his father's home, indicating that the defendant lied when he said he worked for his father. Id. at 470. The trial judge gave no cautionary instruction. Our Supreme Court reversed the defendant's conviction, concluding that this testimony impermissibly suggested that the "defendant had no apparent means of income and hence was likely to commit a crime for dollar gain." Id. at 472.

In Terrell, supra, the defendant was charged with various CDS-related offenses. At trial, the prosecutor asked the defendant's only witness if the defendant had a job. 359 N.J. Super. at 244. The witness responded in the negative. Id. at 245. The trial judge gave no cautionary instruction. In her summation, the prosecutor pressed the point of the defendant's lack of a job, suggesting that the jury could infer that the $965 found on him when he was arrested was the proceeds of drug sales. Ibid. We reversed the defendant's conviction for possession of CDS with intent to distribute, concluding that the witnesses' answer to the question and the prosecutor's use of the answer in her summation violated Mathis. Id. at 248.

Here, the witness did not answer the question about defendant's employment status. Thus, the jury heard no testimony that defendant was unemployed at the time of his arrest. There was no evidence from which the jury could infer that the cash found on defendant must have come from the proceeds of drug sales because he was unemployed.

Also, we are satisfied that the judge's instructions adequately cured any prejudice defendant may have suffered as a result of the unanswered question. It is presumed a jury will follow a curative or limiting instruction without question. State v. Manley, 54 N.J. 259, 270 (1969).

Defendant's second allegation of prosecutorial misconduct concerns the prosecutor's following summation comment, to which defense counsel did not object:

I submit to you that, now you've heard all the testimony, you have the physical evidence in the jury room, there are no holes, there are no puzzle pieces jammed where they don't fit. You'll be able to return a verdict, confident, knowing that you've done the right thing today, tomorrow, next week, next month. Return a verdict of guilty against Forlang Spencer, on charges of conspiracy, possession, possession with intent, and possession with intent within a school zone. I thank you very much.

[Emphasis added.]

Defendant contends that the prosecutor's comment was an inappropriate inflammatory appeal to the passion of the jury and "call to arms." We review this comment under the plain error standard. State v. Daniels, 182 N.J. 80, 88 (2004).

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988)). However, "prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Id. at 83 (citing State v. Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).

"In determining whether a prosecutor's misconduct was sufficiently egregious, [we] '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.'" Ibid. (quoting State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). "Specifically, [we] 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." Ibid. (citations omitted). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 83-84 (citing Ramseur, supra, 106 N.J. at 323). "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." Id. at 84. (citing State v. Bauman, 298 N.J. Super. 176, 207, (App. Div.), certif. denied, 150 N.J. 25 (1997)).

While a prosecutor is "expected to make vigorous and forceful closing arguments to juries," State v. Smith, 167 N.J. 158, 177 (2001), prosecutors must also refrain from making "'inflammatory and highly emotional' appeals which have the capacity to defer the jury from a fair consideration of the evidence of guilt." State v. W.L., 292 N.J. Super. 100, 111 (App. Div. 1996) (quoting Marshall, supra, 123 N.J. at 161).

The type of comments held inflammatory are those we have referred to as "send a message to the community" or "call to arms" comments. State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (citing State v. Rose, 122 N.J. 454, 520 (1988)). Such comments constitute prosecutorial misconduct because their intent is "to promote a sense of partianship with the jury that is incompatible with the jury's function." Ibid. .

Here, defense counsel did not object to the prosecutor's comment. Nevertheless, based upon our review of the prosecutor's comment, we conclude no error or misconduct occurred. The comment was neither inflammatory nor a "call to arms."

II.

Defendant's next challenge concerns the clothing he wore on the first day of jury selection. Defendant was dressed in green prison clothes (greens) on the first day of trial. Jury selection occurred in the afternoon that day. The record reflects the judge's painstaking efforts prior to jury selection to advise and question defendant about his right to appear in civilian clothing. The record also reflects defendant's recalcitrance and defense counsel's unsuccessful efforts to obtain his client's cooperation.

The judge also offered to voir dire the prospective jurors about defendant's clothes. Noting that defendant's clothing could appear to the prospective jurors as merely a green t-shirt and green pants, defense counsel declined the judge's offer unless defendant continued to wear the greens thereafter. Jury selection then proceeded with defendant dressed in greens. He wore civilian clothes the next day and for the remainder of the trial.

It is well-established in this State that:

[C]riminal defendants appearing for a jury trial in prison garb should be personally questioned by the trial judge concerning their desire to relinquish the right to appear in civilian clothing and that this right should be given up only by means of a knowing, intelligent and voluntary waiver on the record before the trial judge.

[State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988).]

Defendant does not dispute that Judge Cantor properly questioned him about his right to appear in civilian clothing. He also does not dispute that he knowingly, intelligently and voluntarily relinquished that right. Rather, he contends that the judge was required to issue a cautionary instruction about his clothing. He also contends that defense counsel was ineffective for failing to request a cautionary instruction.

There is no mandate that trial judges issue cautionary instructions when a defendant voluntarily appears at trial in prison garb. A trial judge is only required to give a precautionary voir dire or jury charge when the defendant or defense counsel have made a request for them. Id. at 113.

Even where a defendant does not request a precautionary voir dire or jury charge, it is in the trial judge's discretion to "give a cautionary charge in any case in which [he or she] reasonably concludes that the physical condition of the accused may impermissibly influence the jury's verdict." State v. Maisonet, 166 N.J. 9, 23 (2001) (defendant's conviction reversed where he "appeared dirty and unkempt" at trial and testified in that condition).

Here, neither defendant nor his attorney requested a cautionary instruction. Thus, Judge Cantor was not required to give one. Also, the judge did not abuse her discretion in not giving a cautionary instruction. The record does not indicate that the greens impermissibly influenced the jury's verdict. Defendant was only before the prospective jurors on the afternoon of the first day of jury selection, and it was not immediately apparent that the greens were "prison garb."

Based on our review of the record and in light of the argument presented, we are satisfied no error occurred. Because no error occurred, defense counsel's performance was not deficient.

III.

Defendant next raises several challenges to the jury charges, to which defense counsel did not object. Thus, our review is guided by the plain error standard. State v. Torres, 183 N.J. 554, 564 (2005); R. 2:10-2. In the context of an unchallenged jury charge, "plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, any alleged error must be evaluated in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

Defendant first contends that the judge gave an erroneous charge on unlawful possession of CDS, and that this error impacted the charges on possession with intent to distribute and possession with intent to distribute within 1000 feet of school property. The judge gave the following charge on unlawful possession of CDS, in relevant part:

There are three elements of this offense. They are, one, that S-1 and/or S-2 in Evidence is cocaine. Two, that the defendant possessed or obtained S-1 and/or S-2 in Evidence. And three, that the defendant acted knowingly or purposely, in possessing or obtaining S-1 and/or S-2 in Evidence.

If you find that State has proven all these elements, beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find the State has failed to prove these three elements, beyond a reasonable doubt, then you must return a verdict of not guilty.

The judge gave the following charge on possession of CDS with intent to distribute, in relevant part:

To reiterate, there are four elements to that offense. They are as follows: That S-1 and/or S-2 in Evidence is cocaine. Two, that the defendant possessed, or had under his control, S-1 and/or S-2 in Evidence. Three, that the defendant had the intent to distribute the cocaine in Evidence. Four, that the defendant acted knowingly or purposely in possessing or having under his control, with the intent to distribute the cocaine in Evidence.

If you find that State has proven all these elements, beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find the State has failed to prove any of these elements, beyond a reasonable doubt, then you must return a verdict of not guilty.

The judge gave the following charge on possession of CDS with intent to distribute within 1000 feet of school property, in relevant part:

I have already instructed you as to the elements of possession with the intent to distribute. They are, that S-1 and/or S-2 in Evidence, is cocaine. That the defendant possessed, or had under his control S-1 and/or S-2. Three, that the defendant had the intent to distribute S-1 and/or S-2, when he possessed it under his control. Four, that he acted knowingly or purposely in doing so. In addition to proving, beyond a reasonable doubt, these four elements, the State must prove, that this act occurred within on thousand feet of school property.

. . . .

Further, I charge you that, whether the defendant intended to make the distribution within one thousand feet of a school property is irrelevant. If you find the State has proven all five of these elements, beyond a reasonable doubt, then you must return a verdict of guilty. If, on the other hand, you find the State has failed to prove any of these elements, beyond a reasonable doubt, then you must return a verdict of not guilty on this charge.

Defendant concedes that all of the charges complied with the Model Jury Charges, including the then-current Model Jury Charge (Criminal), "Unlawful Possession of a Controlled Dangerous Substance" (1988). However, he argues that the judge should have modified the unlawful possession of CDS charge to reflect the language in Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance With Intent to Distribute" (1992), which states that the State's failure to prove just one element of any of his crimes must result in an acquittal. We disagree.

The unlawful possession of CDS charge properly informed the jury that to convict defendant, it had to find that the State proved all three elements of the charge beyond a reasonable doubt. Thus, the jury knew it could not convict defendant of unlawful possession of CDS if the State failed to prove just one element. We conclude, therefore, that the linguistic distinction between the charges highlighted by defendant did not have the capacity to produce an unjust result.

Defendant next contends that the judge did not afford him the opportunity to determine whether or not he wanted the election not to testify charge. He argues that State v. Lynch, 177 N.J. Super. 107 (App. Div.), certif. denied, 87 N.J. 347 (1981), required the judge to obtain his individual consent to the charge. This argument lacks merit.

In Lynch, supra, the defendant was tried in absentia. Id. at 111. No request was made for the election not to testify charge and there was no discussion about the charge. Id. at 114. We held as follows:

We are satisfied that any approval for or against inclusion of [the election not to testify] instruction should be made by defendant himself. See Model Jury Charges, 4.130, Note, Defendant's Election Not to Testify . . . 'ordinarily this can be discussed with the defendant and his counsel at the end of the State's case when the court is in the process of explaining to the defendant his right to make an election as to whether or not he wishes to testify and the ramifications thereof.'

[Ibid.]

Here, after the close of the State's evidence, Judge Cantor explained to defendant his right to decide whether or not to testify and the ramifications thereof. Immediately thereafter, the judge held a charge conference, during which the following colloquy occurred in defendant's presence, in relevant part:

THE COURT: Does anyone have a request to charge? [Defense counsel], do you want me to charge the jury about the defendant's election not to testify?

DEFENSE COUNSEL: Judge, I have a couple.

THE COURT: Do you want to tell me?

DEFENSE COUNSEL: The basic criminal charges from the standard criminal charges.

THE COURT: Of course, I'm going to give the general charges. Circumstantial evidence, defendant's election not to testify, expert testimony.

. . . .

THE COURT: I think the facts are in the case. But only with respect to the conspiracy charge. Presumption of innocence, reasonable doubt. Then the rest of the criminal charges that I just went over. Okay. I'll add those three charges.

. . . .

DEFENSE COUNSEL: I'm sorry, Judge. When you say the three --

THE COURT: The election not to testify, the expert testimony charge, and the lesser-included . . . standard criminal charges . . . that's what I will give the jury.

DEFENSE COUNSEL: Okay.

Thus, there was a discussion of the election not to testify charge, defense counsel agreed to its issuance, and defendant did not object.

Also, a defendant's constitutional rights are not violated where the court issues a cautionary instruction without obtaining the defendant's consent. See Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S. Ct. 1091, 1095, 55 L. Ed. 2d 319, 326 (1978) (no constitutional violation where court instructed jury on defendant's election to remain silent over defendant's objection); State v. Jackson, 204 N.J. Super. 13, 21 (App. Div. 1983) (in joint trial of two co-defendants, no constitutional violation where court issued instruction regarding right to remain silent where one co-defendant requested the charge while other objected to its issuance), aff'd sub nom., State v. Hardison, 99 N.J. 379 (1985); State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978) (an election not to testify charge given over objection does not violate defendant's constitutional right against self incrimination), certif. denied, 79 N.J. 497 (1979). Thus, even if defendant had objected, we are satisfied the judge properly gave the charge.

IV.

Defendant's next challenge concerns evidence that Santiago and Lama were known drug users. Estrada testified that Santiago is a known drug user who was always in the area and with whom Estrada had spoken on numerous occasions about loitering and trying to purchase drugs. He also testified that Santiago had been arrested for possession of marijuana. Jimenez testified that Santiago was a known crack cocaine user who he had arrested. As to Lama, no one testified that he is a known drug user. Rather, Jimenez testified that he arrested Lama for conspiracy and possession of crack cocaine.

Defendant contends that this evidence was hearsay, that it violated N.J.R.E. 404(b) because it implied he had a criminal disposition due to his association with these individuals, that it violated N.J.R.E. 608 because it permitted introduction of this other crime evidence as a character trait by specific instances of conduct against the individuals which did not relate to their character for truthfulness or untruthfulness, and that it violated N.J.R.E. 403 because it was admitted without a consideration of whether its probative value substantially outweighed its risk of undue prejudice. All of these contentions are without merit.

The officers' testimony about Santiago's and Lama's drug use was not hearsay. First, no one testified that Lama was a known drug user, and testimony about his CDS-related arrest was based on Jimenez's personal knowledge. Second, the officers' testimony about Santiago's known drug use did not involve statements made by non-testifying declarants or unknown informants. Rather, the testimony was based on the officers' personal knowledge of their drug-related interactions with Santiago.

Also, the State introduced this evidence not to prove defendant's criminal disposition or specific instances of conduct. Rather, the evidence illuminated the context of defendant's interactions with Santiago and Lama and supported the police officers' belief that these interactions were drug-related. And finally, defendant has failed to convince us that the probative value of this evidence was substantially outweighed by its risk of undue prejudice.

V.

Defendant next contends that the State's expert witness improperly testified as to the ultimate issue of his guilt. We disagree.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. Opinion testimony is permissible even where it embraces the ultimate issue to be determined by the jury. N.J.R.E. 704. The admissibility of such testimony rests in the sound discretion of the trial court. State v. Summers, 176 N.J. 306, 312 (2003).

Expert testimony about drug-trade practices is generally admissible given that most jurors are unschooled in the practices of drug dealers, although the extent and nature of such testimony may differ depending on the circumstances of the case. See, e.g., State v. Berry, 140 N.J. 280, 293-95 (1995). Information about the practices of drug dealers is considered specialized knowledge for which an expert opinion may be sought to assist a jury. State v. Odom, 116 N.J. 65, 73 (1989).

An expert may give an opinion, based on the facts in evidence or on the facts in a posed hypothetical, whether the defendant possessed the drugs for distribution or personal consumption. Summers, supra, 176 N.J. at 314. "[The expert's] opinion can be 'expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute,' but it cannot contain an explicit statement that 'the defendant is guilty of the crime charged under the statute.'" Id. at 314-15 (quoting Odom, supra, 116 N.J. at 80-81).

Here, the State's expert did not testify that defendant was guilty. The expert simply opined that defendant possessed the drugs with the intent to sell and not for personal use. The expert was qualified to offer this opinion and his testimony was proper.

VI.

We now address defendant's sentence. Defendant first contends that the judge need not have imposed a sentence under Indictment No. 04-01-00042 consecutive to the sentence imposed under Indictment No. 03-12-1636. He also posits that the judge should have explained why the imposition of a consecutive sentence was not a serious injustice overriding the need to deter others. Defendant is wrong.

N.J.S.A. 2C:44-5h provides:

When a defendant is sentenced to imprisonment for an offense committed while released, with or without bail, pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the court, in consideration of the character and conditions of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others.

[Emphasis added.]

This statute clearly mandates the imposition of a consecutive sentence where, such as here, a defendant commits an offense while released on bail for a previous offense. In such an instance, the sentencing judge is not required to explain why the imposition of a consecutive would not be a serious injustice overriding the need to deter others.

We reject defendant's contention that the judge failed to consider the real time consequences of the mandatory period of parole ineligibility. The judge was required to impose a thirty-six month period of parole ineligibility unless the State agreed to a different period. N.J.S.A. 2C:35-12. Thus, there were no real time consequences of the mandatory period of parole ineligibility for the judge to consider.

We also reject defendant's contention that he is entitled to a remand under State v. Natale, 184 N.J. 458 (2005) (Natale II) to determine whether the elimination of presumptive terms impacted the judge's sentencing decision regarding the base term imposed. Defendant's sentence is within the range for a third-degree crime.

Finally, defendant contends that the State failed to state its reasons for refusing to waive the mandatory period of parole ineligibility. We agree that under normal circumstances, "the prosecutor should state on the record the reasons for the decision to waive or the refusal to waive the parole disqualifier." State v. Vasquez, 129 N.J. 189, 196 (1992). Relief, however, may be granted only where the defendant "shows clearly and convincingly that the exercise of discretion was arbitrary and capricious." Ibid. Defendant has failed to satisfy this requirement. There was sufficient evidence in the record supporting the State's refusal to waive the parole disqualifier.

Based upon our review of the record, we are satisfied that the sentence imposed by Judge Cantor is supported by sufficient credible evidence, and we will not "substitute[] [our] judgment for that of the trial court." State v. O'Donnell, 117 N.J. 210, 219 (1989).

 
Affirmed.

At the time of sentencing, defendant had two pending indictments for drug-related offenses.

By consent order, entered March 30, 2005, the Judgment of Conviction for Indictment No. 04-01-00042 was amended to reflect the correct mandatory period of parole ineligibility of thirty-six months pursuant to N.J.S.A. 2C:35-7.

Laboratory tests later confirmed that the substance in the baggie was cocaine weighing approximately 1.87 grams and that the substance in the four individually-wrapped items was cocaine weighing a total of 11.95 grams.

The charge was amended in 2008.

We note that during the proceedings, defendant directly addressed the judge and made pro se motions in defense counsel's presence. Nothing prohibited him from speaking to the judge.

(continued)

(continued)

27

A-2910-05T4

 

December 12, 2008