STATE OF NEW JERSEY v. RAYMOND E. JENKINS, JR

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This case can also be found at 199 N.J. 517, 973 A.2d 384.
(NOTE: The status of this decision is unpublished.)

NOT FOR PUBLICATION WITHOUT THE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-4489-06T44489-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

RAYMOND E. JENKINS, JR.,

Defendant-Appellant.

____________________________

Submitted September 25, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the New Jersey Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-00567.

Yvonne Smith, Public Defender, attorney for appellant (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On June 15, 2006, a Union County Grand Jury charged defendant with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2c:35-5b(3) (Count Two); two counts of second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Counts Three and Five); and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four). Counts Three and Five were dismissed prior to trial. Tried to a jury, defendant was convicted on all of the remaining counts.

On December 15, 2006, defendant, having ten prior convictions for manufacturing, distributing, or possessing a CDS with intent to distribute, was sentenced on Count Two to a mandatory extended term, N.J.S.A. 2C:43-6f, of eight years of imprisonment with a four-year period of parole ineligibility. He received an identical sentence on Count Four, to run concurrent with the sentence on Count Two. Count One was merged with Count Four. The aggregate sentence was eight years of imprisonment with a four-year period of parole ineligibility. Defendant appeals, and we affirm.

A - The Search Warrants.

On March 23, 2006, Detective Kevin O'Brian of the Plainfield Police Department assembled a team of approximately twelve police officers to execute search warrants obtained for defendant's person, defendant's automobile, two Plainfield residences at 702 South Avenue and 904 East 2nd Street, and a storage facility in Watchung. One of the officers who attended the meeting was a member of the New Jersey State Police "Gang Unit North." At about six o'clock that evening, the officers established surveillance of the two residences.

In the interim, based on information received from another officer, O'Brian, driving an unmarked police car, began following defendant's vehicle. After observing defendant pull his vehicle over and stop on the north side of the 300 block of East Front Street, O'Brian parked his car approximately one car behind defendant's vehicle.

Meanwhile, Obie Holland had telephoned defendant requesting that defendant bring heroin to his house at 310 East Front Street. While waiting on his front porch, Holland saw defendant flash his vehicle's headlights. Immediately thereafter, Holland walked across the street and entered defendant's vehicle. As Holland passed in front of O'Brian's vehicle, O'Brian observed what he believed was money in Holland's hand.

After Holland entered the vehicle, defendant drove away, eventually stopping in the 300 - 400 block of East 2nd Street. While in the vehicle, Holland "[b]ought three bags of heroin from [defendant]." After a couple of minutes, Holland got out of the vehicle and began walking toward a vacant lot. Based on information relayed by O'Brian, Detective Michael Casperson and Sergeant Michael Richards walked toward Holland and announced themselves as police officers. As the officers approached and began to reach for him, Holland "[d]ropped three folds of heroin to the ground." Detective Casperson recovered the folds and placed Holland under arrest. The folds were stamped with the words "money bags." In the interim, defendant drove off out of O'Brian's line of sight. At that point, Detective Ronald Fusco, traveling in an unmarked police car, took over the surveillance of defendant. Soon thereafter, O'Brian resumed surveillance of defendant with the other officer.

Fusco and O'Brian continued to follow defendant's vehicle for a short distance. As defendant made a left-hand turn onto Woodvine Avenue, O'Brian, traveling about two car lengths behind defendant, saw an item fly out of defendant's driver's side window and land on the street. O'Brian stopped and retrieved the item, a packet of fourteen glassine folds of heroin bundled with a rubber band. These folds were also stamped with the words "money bags."

Based on information transmitted by O'Brian throughout the surveillance, other officers stopped defendant at the corner of Arlington Avenue and Woodvine Avenue, not far from where the packet was thrown from defendant's vehicle. After arriving at the scene, O'Brian searched defendant's vehicle and found an additional fold of heroin under the driver's seat bearing the same "money bags" stamp. Additionally, O'Brian found $366 in paper currency scattered throughout the front of defendant's vehicle, and a cellular phone. After the search of defendant's vehicle was completed, defendant was placed under arrest and transported to the Plainfield Police headquarters.

Following a brief meeting at headquarters, O'Brian and the team of officers executed a search warrant at 702 South Avenue. No contraband was found during the search. The officers next executed a search warrant of an apartment at 904 East 2nd Street. Although no drugs were found inside the apartment, police recovered a clear sandwich bag containing two glassine envelopes of heroin from the apartment's back porch. Mail bearing the name of defendant was also found inside the apartment. The officers then executed a search warrant at the storage facility in Watchung, but the search proved negative for CDSs.

B - The Trial.

On the first day of testimony, the prosecutor asked O'Brian questions not only about the existence of the search warrants, but also regarding the execution of the warrants at the two residences. In responding to one of the prosecutor's questions, O'Brian indicated that the search warrants had been issued by a judge prior to their execution:

Q. Okay. And I'd just like to show you what's been previously marked by the State as S-1 for identification. I'm going to show it to the defense attorney first. I show you for identification. Take a look at this and tell us what this appears to be.

A. This is the correspondence search forms and affidavit that was submitted to the [j]udge.

No objection was made to any of these references, and no curative instruction was provided to the jury.

Later that day, the following exchange took place during a sidebar conference:

[Defense Counsel]: Your Honor, [the prosecutor] just indicated that [defendant]'s not charged with the two folds that were supposedly found in the bag with the rice. The indictment does not indicate that -- which -- which of the heroin he's supposedly charged with. I mean, can there be some stipulation that he's not charged with that?

COURT: Well, if he's not charged with it, why did it come into evidence?

[Prosecutor]: Judge, I was just merely presenting everything. The paperwork, he's not charged with the paperwork. H[e]'s not charged with driving over the speed limit but I just merely presented it --

COURT: No, no, no, --

[Prosecutor]: -- to give a full picture of the case.

COURT: -- but that's different. But that's different, okay. And I could tell you that when I was working on the charge during the break, I assumed --

. . . .

COURT: All right. You want me to tell the jury that -- that he is not charged for that and that is not part of the case?

[Defense Counsel]: Right.

COURT: All right. Do you object to that?

[Prosecutor]: My only objection is I should at least be able to discuss this in summation.

COURT: For what? For what?

[Prosecutor]: Judge, we put this on the record earlier that that was coming in. We discussed earlier. And when asked earlier, I gave the same explanation as I'm doing now. [Defense counsel] was present --

COURT: Well, let me hear it again because I don't remember it.

[Prosecutor]: My only proffer -- my only basis is for purposes of completeness of this case as to what was searched, what was found.

. . . .

[Defense Counsel]: Your Honor, if --- if we're going to be permitted to have that in summation, we have a larger problem, and I'm not sure if it can be subject to a curative instruction.

I think my client, by virtue of what was admitted in evidence by way of testimony and exhibits probably can't be cured by a curative instruction. My client's been prejudiced. I think -- I think [the prosecutor] is very close to forcing a mistrial here. He's now introduced --

COURT: Well, are you making a motion for a mistrial?

[Defense Counsel]: No, sir, no, sir, I'm not.

COURT: Okay. Then I don't -- when you're ready to make a motion for a mistrial, I'll hear that motion. I'm not dealing with it in this -- in this context that you're placing it in. But I'm going to think about it over lunch, but I'm very inclined to give the curative -- I don't want to say curative, --

[Defense Counsel]: Thank you, Judge.

After Holland testified as a witness for the State, the court gave the jury the following instruction:

Before we hear the next witness, I want to talk to you about S-11. Exhibit S-11 was the two folds of suspected heroin that was in the bag with the rice that was found on the back porch of 904 East 2nd Street.

Now there's no dispute between the parties that that bag with the suspected heroin and the rice in the bag was found at that location, but the defendant is not -- [defendant] is not charged here with either the possession or distribution of that heroin.

And I'm instructing you that you are not to consider that exhibit in any way in connection with your consideration of the issues in this case, and I am removing it from evidence, okay.

The State called Detective Michael Triarsi as an expert witness in the area of packaging, identification and distribution of CDSs. After being provided with a hypothetical similar to the facts of the case, Triarsi opined that the hypothetical presented was likely a drug deal. In so determining, he explained that the eighteen folds of heroin recovered by the officers were indicative of possession for distribution, rather than for personal use.

Following the conclusion of the evidentiary portion of the trial, the jury was requested to determine defendant's guilt on Counts One, Two, and Four. In furtherance of the jury's determinations on Count One, possession of a CDS, and on Count Four, possession of a CDS with intent to distribute, the court not only instructed the jury to render a verdict on each of the counts, but also instructed the jury that if it reached a guilty verdict on either count, to indicate on special interrogatories whether the determination was based on the heroin that Holland purchased from defendant, the fourteen folds of heroin that O'Brian observed thrown from defendant's vehicle, or the single fold of heroin found in defendant's vehicle. The jury returned a verdict, finding defendant guilty on Counts One, Two, and Four; and in answering the trial court's interrogatories, indicated that its verdicts on Counts One and Four were based only on the three folds of heroin that Holland purchased from defendant.

On appeal, defendant argues:

POINT I.

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE JURY HEARD EVIDENCE THAT: THE POLICE HAD WARRANTS TO SEARCH DEFENDANT'S PERSON, AUTOMOBILE AND ALLEGED RESIDENCES, AND A LARGE TEAM OF POLICE OFFICERS -- INCLUDING A MEMBER OF THE STATE POLICE GANG UNIT -- OBSERVED AND APPREHENDED DEFENDANT AND EXECUTED THE SEARCH WARRANTS. ADMISSION OF THIS EVIDENCE, WITH NO CURATIVE INSTRUCTION, WAS PLAIN ERROR THAT WARRANTED REVERSAL OF THE CONVICTIONS. (U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARAS. 1, 9 AND 10) (NOT RAISED BELOW).

POINT II.

BY PRESENTING EVIDENCE THAT WAS IRRELEVANT TO THE INDICTMENT AND TRIAL -- THAT DRUGS WERE FOUND IN THE APARTMENT AT EAST 2ND STREET -- AND ONLY AFTERWARDS DISCLOSING THE IRRELEVANCE TO THE TRIAL JUDGE AND DEFENSE COUNSEL, THE PROSECUTOR PRECLUDED THE JUDGE FROM DECIDING IN ADVANCE IF THE EVIDENCE WAS ADMISSIBLE AND EXPOSED THE JURY TO HIGHLY PREJUDICIAL INFORMATION. SINCE THE RESULTING PREJUDICE TO DEFENDANT WAS NOT AMENABLE TO CURE BY JURY INSTRUCTION, THE PROSECUTORIAL MISCONDUCT DENIED DEFENDANT A FAIR TRIAL AND WARRANTED A MISTRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARAS. 1, 9 AND 10) (PARTIALLY RAISED BELOW).

A. BY REVEALING MID-TRIAL THAT EVIDENCE THE STATE HAD ALREADY PRESENTED (ABOUT DRUGS BEING FOUND AT THE 2ND STREET APARTMENT) WAS IRRELEVANT TO THE INDICTMENT AND HENCE THE TRIAL, THE PROSECUTOR ENGAGED IN MISCONDUCT WARRANTING A MISTRIAL.

B. THE PREJUDICE DEFENDANT SUFFERED FROM THIS INADMISSIBLE EVIDENCE WAS NOT AMENABLE TO CURE BY JURY INSTRUCTION, AND EVEN IF IT HAD BEEN, THE JURY INSTRUCTION THAT THE JUDGE GAVE WAS NEITHER IMMEDIATE NOR EMPHATIC ENOUGH (PARTIALLY RAISED BELOW).

C. UPON LEARNING OF THE PROSECUTOR'S MISCONDUCT, THE TRIAL COURT SHOULD HAVE DECLARED A MISTRIAL. (PARTIALLY RAISED BELOW).

POINT III.

THE 8-YEAR EXTENDED TERM, 4 YEARS WITHOUT PAROLE, THAT THE TRIAL JUDGE IMPOSED WAS EXCESSIVE GIVEN THE UNDERLYING OFFENSES; POSSESSING WITH INTENT AND DISTRIBUTING THREE $10 FOLDS OF HEROIN TO MR. HOLLAND.

II.

In Point I, defendant argues that the prosecutor improperly elicited testimony from Detective O'Brian concerning the search warrants issued for his person, his automobile, and three property locations: two residences and a storage facility. Defendant contends that permitting the jury to hear that the search warrants had been issued by a judge "deprived [him] of due process of law and a fair trial." We disagree.

Because there was no objection to the testimony at trial, this argument is reviewed under the plain error standard. R. 2:10-2. Appellate courts will disregard an unpreserved error unless it is "clearly capable of producing an unjust result." State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Bakka, 176 N.J. 533, 547-48 (2003). The error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

The State should not introduce evidence from which a jury may infer that other evidence not introduced at trial had previously been submitted to a judge or other judicial officer justifying the issuance of a search warrant for the defendant's person. State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992) (determining that the "defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person" where the references were unnecessary and immaterial to the charges); State v. Alvarez, 318 N.J. Super. 137, 147 (App. Div. 1999) (determining that defendant suffered undue prejudice after the jury heard "six references to a search warrant" for the defendant's residence by the prosecutor).

However, not all passing references to search warrants for a defendant's person or property require reversal. State v. Marshall, 148 N.J. 89, 240 (holding that there is no legal support for the proposition that a jury must "be shielded from knowledge that search warrants had been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt"), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Rather, the determination of whether testimony referencing the issuance of a prior search warrant was "clearly capable of producing an unjust result" must be examined from the context in which the testimony was presented. State v. McDonough, 337 N.J. Super. 27, 34-35 (App. Div. 2001) (finding testimony of the issuance of search warrants harmless where the jury heard other compelling evidence relative to the charges which "had been obtained before the warrants were issued" and where there was no indication that the State had presented evidence not introduced at trial to the issuing judge).

We conclude that O'Brian's references to the search warrants and to the supporting affidavit were not capable of producing an unjust result. The references were made in the course of O'Brian telling the jury how the surveillance of defendant began. The only reference to the issuing judge was in the following exchange between the prosecutor and O'Brian after O'Brian had explained that he organized the team of officers to brief them regarding the search warrants:

A. This is the correspondence search forms and affidavit that was submitted to the [j]udge.

The references were neither material nor relevant to the case, Milton, supra, 255 N.J. Super. at 520, and the references were not as repetitive or injurious as those condemned in Alvarez, supra, 318 N.J. Super. at 147-48. Defendant argues that we should reverse because the judge issuing the warrants may have considered evidence not presented to the jury, and the jury may have inferred that "sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs." Milton, supra, 255 N.J. Super. at 520. We disagree.

Although discussion of the warrants and the supporting affidavit would have been better left unsaid, defendant was not "unquestionably prejudiced" by the testimony. Ibid. The verdict indicates that the jury only convicted defendant of possessing the heroin that Holland bought from defendant, notwithstanding that the three folds bore the same stamp as the fourteen folds thrown from the vehicle and the one fold found in the vehicle. Moreover, none of the warrant searches led to the discovery of the contraband on which defendant was convicted. The search of the vehicle, the only search that led to a conviction, was executed pursuant to a valid stop based upon probable cause. Accordingly, we are satisfied that the reference to the warrants and the supporting affidavit did not result in undue prejudice or otherwise deprive defendant of a fair trial.

Lastly, defendant did not object to the references to the search warrants or ask for a curative instruction. As opposed to Milton, where the cautionary instruction may have heightened the prejudice to the defendant, supra, 255 N.J. Super. at 520, no such attention was drawn to the issue in this case. Thus, "[i]t may be fair to infer from the failure to object [at trial] that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333.

III.

In Point I, defendant also challenges Detective O'Brian's testimony that before his arrest, O'Brian had convened a large number of police officers to assist in execution of the search warrants. Defendant contends that O'Brian's "testimony about convening . . . 11 to 14 police [officers] suggested to the jury that the police considered [defendant] a dangerous criminal -- a notion reinforced by O'Brian's additional, unnecessary and highly prejudicial testimony that the unit included a member of the New Jersey State Police . . . 'Gang Unit North.'" We find this argument meritless.

Because defendant did not object to this testimony, the matter will be disregarded on appeal unless it was plain error. R. 2:10-2. We conclude that the admission of testimony complained of is not "'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. Super. at 95 (quoting Macon, supra, 57 N.J. at 36). We are satisfied that the jury did not convict defendant of possession of the three folds of heroin because of the mention of the number of officers participating in the investigation or that one of the officers was a State Police officer assigned to the "Gang Unit North." Any inference raised on the jury's part would have gone toward defendant's predisposition to commit the charged acts. However, as previously discussed, it does not appear that the jury viewed defendant as pre-disposed to commit the alleged acts, as they found defendant not guilty of possession of two quantities of heroin for which there was ample evidence to convict.

IV.

Defendant argues next that the jury's exposure to the two glassine envelopes of heroin found in the 2nd Street apartment was prejudicial and "was not amenable to cure by jury instruction." Defendant contends that in the alternative, even if it was amenable to cure by instruction, the instruction provided "was insufficient to cure the prejudice already suffered by [defendant]." We disagree.

"Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); R. 2:10-2. "The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. State v. Winter, 96 N.J. 640, 646 (1984). The test is whether the error was "'clearly capable of producing an unjust result.'" Daniels, supra, 182 N.J. at 95 (quoting R. 2:10-2).

In the case of improperly admitted evidence, the effect can generally be eradicated by an immediate and strong curative instruction to the jury to disregard the evidence. Winter, supra, 96 N.J. at 648. However, there are cases when the prejudicial effect of the evidence cannot be cured by a court's instruction because "'it is of a nature as to have been clearly capable of producing an unjust result.'" Ibid. (quoting State v. LaPorte, 62 N.J. 312, 318-19 (1973)). It is in the trial court's discretion to decide whether a curative instruction can suffice to negate the prejudice from inadmissible evidence:

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[Id. at 646-47.]

Similarly, "when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court" because "[t]he adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647.

Moreover, juries are presumed to understand and follow instructions. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). A party's failure to object to a jury instruction is presumed to reflect an assessment of the charge as unlikely to prejudice his or her case. See Macon, supra, 57 N.J. at 333-34. Accordingly, courts are generally reluctant "to reverse on the grounds of plain error when no objection to a charge has been made." State v. Weeks, 107 N.J. 396, 410 (1987).

After the two glassine envelopes were admitted into evidence, the prosecutor disclosed that defendant was not charged with possession of the heroin contained therein. Defense counsel argued that he did not believe the introduction of the evidence could be cured by a jury instruction; however, when asked if he was making a motion for a mistrial, he responded that he was not. Subsequently, the trial judge gave the jury the following instruction:

And I'm instructing you that you are not to consider that exhibit in any way in connection with your consideration of the issues in this case, and I am removing it from evidence, okay.

Because defendant did not object to the instruction, his argument on appeal will be disregarded unless the introduction of the two glassine envelopes constituted plain error. R. 2:10-2.

Here, the curative instruction was prompt and emphatic. The instruction was given while the matter was fresh in the jury's mind and in plain terms. Anything more emphatic would have drawn unnecessary attention to the matter. See Milton, supra, 255 N.J. Super. at 520 (where the cautionary instruction issued by the court may have heightened the prejudice to the defendant).

Further, because defendant did not object to the instruction, the charge is presumed not to have prejudiced him. See Macon, supra, 57 N.J. at 333-34. However, even if no such presumption existed, it does not appear that defendant was prejudiced by the admission of the evidence. As previously discussed, defendant was only convicted of possessing the three folds of heroin sold to Holland. If the jury took the two envelopes into account, it likely would have viewed defendant as a "bad person" and convicted him of possession of the three quantities of heroin. Instead, we conclude that the jury understood the instruction and convicted defendant only after determining there was proof beyond a reasonable doubt of possession and distribution of a CDS. The jury found defendant guilty of the charges only on the possession and distribution of the heroin sold to Holland, not of the heroin found in the vehicle, or the heroin thrown from the vehicle's window. Feaster, supra, 156 N.J. at 65.

Defendant argues next that the prosecutor's presentation of the two glassine envelopes found in the apartment was irrelevant and highly prejudicial, "constitut[ing] prosecutorial misconduct that deprived [him] of his rights to a fair trial and due process." We disagree.

"Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Papasavvas, 163 N.J. 565, 616, op. corrected, 164 N.J. 553 (2000). "'To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotations omitted)).

In considering whether prosecutorial misconduct denied the defendant a fair trial, an appellate court will consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [court] ordered the remarks stricken from the record and instructed the jury to disregard them." 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) (citations omitted). Simply stated, "[t]he determination of whether prosecutorial misconduct denied defendant the right to a fair trial 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.

Here, when the issue concerning the two glassine envelopes arose, a sidebar conference was conducted by the trial court. During the conference, the prosecutor explained that he sought to admit the envelopes for "completeness" and that he had "put this on the record earlier that [the evidence] was coming in." Although the judge did not recall the prior discussion, defense counsel did not object to the truth of the prosecutor's statement. Moreover, even if the statement was inaccurate, the curative instruction provided by the court cured any concerns of undue prejudice and defendant's right to receive a fair trial.

Defendant argues in the alternative that, even if the individual errors asserted do not rise to reversible error, their cumulative effect does. Defendant contends that the State's case "rose and fell on the testimony of [Holland], a convicted criminal who stood to gain a lot by testifying against [defendant]." Defendant asserts that the jury rejected O'Brian's testimony when it found him not guilty of possessing the fourteen folds O'Brian saw defendant throw out of his vehicle, and the one fold O'Brian found in his vehicle. As such, defendant argues that "the jurors convicted [him] on the strength of [Holland's] credibility, the inadmissible evidence of three irrelevant searches and the discovery of drugs at one location searched, or a combination of both."

Our Supreme Court has recently reaffirmed the principle of cumulative error stating that "even when an individual error or series of errors does not rise to reversible error . . . their cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). Accordingly, an appellate court must consider "whether the errors that [a] defendant alleges to have occurred during his [or her] trial, individually or in the aggregate, deprived [the] defendant of a fair trial." Id. at 447.

In asserting his argument, defendant fails to consider the other overwhelming evidence of his guilt that was adduced at trial. Most notably, defendant fails to consider the expert who testified that the hypothetical provided by the prosecutor evidenced that of a drug transaction, and the testimonies of the officers other than O'Brian, who witnessed the interaction between defendant and Holland and ultimately recovered the three folds of heroin from Holland. Any number of these factors, in combination with other evidence submitted, forms a proper basis for the jury's verdict. We conclude that the cumulative effect of the alleged errors does not "cast sufficient doubt on a verdict to require reversal"; rather, we are satisfied that defendant received "a fair trial." Id. at 473.

Lastly, we address defendant's challenge to his sentence. Defendant argues that the sentence of two concurrent eight-year terms of imprisonment with a four-year period of parole ineligibility "was excessive given the underlying offenses."

When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence[,]" and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994).

We considered the arguments presented by defendant challenging his sentence and conclude that they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Based on defendant's lengthy criminal record of drug convictions, defendant was properly determined eligible for an extended mandatory term, pursuant to N.J.S.A. 2C:43-6f. The extended term sentence for a third-degree crime is between five and ten years. N.J.S.A. 2C:43-7a(4). Because the trial court properly found sentencing aggravating factors (3), (6) and (9) and no mitigating sentencing factors, the sentence to two concurrent eight year terms of imprisonment with a four-year period of parole ineligibility does not "shock the judicial conscience." Roth, supra, 95 N.J. 363-64.

The convictions and sentences are affirmed; and we remand to the trial court to amend the second page of the judgment of conviction by removing the court's statement that the sentences were imposed pursuant to a negotiated plea.

Affirmed.

Although defendant was found guilty by a jury, the second page of the judgment of conviction indicates that he was sentenced pursuant to a negotiated plea agreement.

(continued)

A-4489-06T4

November 6, 2008

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