STATE OF NEW JERSEY v. DERRICK WRIGHT

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0936-07T40936-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK WRIGHT,

Defendant-Appellant.

________________________________

 

Submitted: April 29, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1953.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Monique Moyse, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Derrick Wright appeals from his conviction for sim ple assault, possession of marijuana with the intent to dis tribute, and resisting arrest. He also appeals the sentence of three years imprisonment for possession with intent to distribute and two six-month concurrent sentences for simple assault and resisting arrest. Because the jury did not make a finding as to the quan tum of marijuana possessed by defendant, we reverse the convic tion on the drug charge and remand for a new trial; we affirm in all other respects.

Around noon on May 12, 2005, defendant and his girlfriend, Regina Woodson (Woodson), began to argue telephonically regard ing Woodson's refusal to go over to defendant's apartment that night. During the argument, Woodson disconnected the call sev eral times, but defendant continued to call her back. Before she disconnected the call for the third time, she heard defendant say, "'B' I'm gonna kill you."

Later that day, Woodson's children called her for money to go to a school function. Woodson told her twelve-year-old daughter to call defendant and ask him for the money. Her daughter did so, and defendant agreed. Apparently unperturbed by the earlier death threat, Woodson drove her daughter, her niece, and her nephew, to defendant's residence in New ark to get the money. Her niece was nine or ten years old at the time and her nephew was about three.

When they arrived shortly after eight o'clock, Woodson's daughter called defendant and told him that they were downstairs. Defen dant, who lived on the second floor of the building, came down stairs to meet them. However, another car pulled up to the curb and he went to that car first before coming over to Woodson's vehicle. When defendant told them to come up to his apartment, Woodson at first refused because her stomach hurt; however, she followed after defendant told her daughter that he had something for Woodson.

When Woodson's daughter and her cousins entered the apartment, defen dant told them to come to his bedroom to get the money. He opened his dresser drawer, pulled out some money, and began counting out $20 bills and handing them to Woodson's daughter. Woodson, who was sitting in the living room, got up and went to the bedroom. When she saw defendant handing her daughter the $20 bills, she told him that was too much money. Woodson then approached defendant, pulled a revolver out of his pants, and told Woodson that he was going to kill her.

Defen dant then began to pistol-whip Woodson about the head and shoulders. Woodson pleaded with defendant to let the children go, and then told the children to run. According to Woodson, defendant shot at her at least twice, grazing the left side of her head and body. No bullets or casings were ever recovered; nor was the gun. Other than Woodson's daughter, who testified she heard one shot as defendant was allegedly beating Woodson, no one else heard the gun discharge, including defendant's upstairs neighbor and the responding police.

While defendant was beating Woodson, her daughter grabbed defen dant's cordless phone, pushed her two cousins through the door, and ran down the stairs. As they did so, Woodson's daughter observed "a black guy and a Puerto Rican guy." She asked them for help, and then called 9-1-1. At that point, Woodson came down the stairs, pursued by defendant, who was still pistol-whipping her back with the gun. Defendant then told Woodson's daughter that he would kill her if she did not put down the phone. Woodson told the children to run to a nearby youth house. Her daughter threw the phone at defendant and then ran to the youth house with her cousins.

At about 8:30 p.m., Newark Police Officer Leonardo Carrillo and his partner, Officer Angel Gonzalez, were loading their equipment into a marked police cruiser in preparation for their shift when they heard screaming and yelling down the street. Both officers were working out of a police facility that was "just a few blocks, literally right down the street" from defen dant's apartment. When they heard the screams, they got into the cruiser and began to "drive towards the people that were running and screaming."

As they drove down the street, the officers saw Woodson run ning towards them, followed by a group of people. They saw that Woodson was bleeding from the head and was extremely upset and distraught. Woodson told the officers that her boyfriend was shooting at her and trying to kill her. Woodson gave the officers a description of defendant and told them where his apartment was located. After speaking with the officers, Woodson ran to the youth house, where an ambulance was summoned and she was taken to a hospital. The hospital staff cut off her hair to treat the wounds on her head, which required stitches. However, Woodson did not tell the hospital staff that she had been grazed by a bullet, and Woodson's hospital report did not contain any references to a bullet grazing her.

After receiving defendant's description from Woodson, Offi cers Carrillo and Gonzalez proceeded to defendant's address, where they observed him standing in the doorway to his apartment building. When defendant saw the police pull up, he ran into the building, slammed the front door shut, and locked it. The officers "figured that . . . crime was afoot" and gave chase, kicking in the door in order to access the building. They fol lowed defendant up the stairs where they observed him in the doorway to his apartment opening the door. When they tried to apprehend defendant, he began "flailing his arms, kicking his legs, attempting to break free from our grasp and our control." Although defendant was struggling, the officers managed to apply a compliance-hold wrist-lock and then handcuff him.

After defendant was in handcuffs, the officers canvassed the immediate area, including a portion of defendant's apartment near the open door, for any weapons that might have been within his reach. They "observed several bags of green vegetative sub stance believed to be . . . marijuana" in plain sight. Officer Gonzalez secured the bags in the cargo pockets of his uniform pants and placed defendant under arrest. The substance in the bags was later identified as marijuana by a laboratory micro scopic examination, which the laboratory reported weighed ninety-five and eight-tenths grams. The officers also recovered around $1800 from defendant's person.

Essex County Indictment No. 05-08-1953 charged defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count One); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); third-degree possession of marijuana, in a quantity greater than one ounce but less than five pounds, with intent to distribute, N.J.S.A. 2C:35-5b(11) (Count Four); third-degree possession of marijuana, in a quantity greater than one ounce but less than five pounds, with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Five); second-degree possession of a firearm while in the course of committing a vio lation of the statutes charged in Counts Four and Five, N.J.S.A. 2C:39-4.1 (Count Six); and third-degree resisting arrest by using physical force or violence, N.J.S.A. 2C:29-2 (Count Seven).

The judge heard certain pretrial motions and dismissed Count Five on the State's motion, because Newark's city engineer had informed the State that defendant's residence was more than 1000 feet from any school. Before trial began the next day, the judge conducted a Rule 104 hearing regarding playback of a 9-1-1 tape that was made during the incident in question. He ruled that the tape was admissible, but limited playback to a short segment where defendant could be heard saying "I'm going to kill that fucking bitch."

Defendant was then tried before a jury over three days in September 2006. On September 27, 2006, a jury returned a ver dict finding defendant guilty of Count One, amended to a simple assault disorderly persons offense; Count Four, possession of marijuana in a quantity of more than one ounce but less than five pounds with intent to distribute; and Count Seven, amended to a disorderly persons offense of resisting arrest. He was found not guilty on Counts Two, Three, and Six.

At sentencing, the judge found aggravating factors 3, 6, and 9, and no mitigating factors. He sentenced defendant to a three-year custodial term on Count Four, but did not impose a parole ineligibility period. He sentenced defendant to six months concurrent for the two other convictions and imposed various fees and costs. The judge granted seventy-four days of jail credit and estimated that defendant could be paroled after serving nine months. Finally, on the State's motion, he dis missed a disorderly persons charge contained in complaint W-2005-014613-0714 because it was never presented to the jury. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE COURT MUST VACATE MR. WRIGHT'S CONVICTION FOR THIRD-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE BECAUSE THE JURY WAS NOT REQUIRED TO FIND BEYOND A REASONABLE DOUBT THAT THE QUANTITY OF MARIJUANA WAS "[ONE] OUNCE OR MORE BUT LESS THAN [FIVE] POUNDS" AS THE INDICTMENT CHARGED. (Not Raised Below)

POINT II - THE COURT ERRED BY ADMITTING INTO EVIDENCE A PORTION OF A 9-1-1 TAPE, WHICH WAS A NON-PROBATIVE, PREJUDICIAL PRIOR BAD ACT, DEMONSTRATING MR. WRIGHT'S BAD CHARACTER.

POINT III - THE COURT ERRED BY FAILING TO STRIKE, OR TELL THE JURY TO DISREGARD, EVI DENCE OF A RESTRAINING ORDER AGAINST MR. WRIGHT, OBTAINED BY REGINA AS A RESULT OF THE CHARGES IN THIS CASE. (Partially Raised Below)

POINT IV - THE TRIAL COURT ABUSED ITS DIS CRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

As to the first point, defendant did not object to the jury charge; thus, we review the charge for plain error. R. 2:10-2; State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Plain error "requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). "The alleged error is viewed in the totality of the entire charge, not in isolation." Ibid. Thus, while a "jury charge must ade quately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner," the effect of the erroneous charge "must be evaluated in light of the totality of the circumstances." State v. DiFrisco, 137 N.J. 434, 491 (1994) (citations omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Defendant argues that if "the marijuana were deemed [by the jury to be] less than one ounce, it would be a crime of the fourth degree," citing N.J.S.A. 2C:35-5b(12). If the jury determined he possessed more than one ounce but less than five pounds, it would be a third-degree crime under N.J.S.A. 2C:35-5b(11). Thus, he argues, weight is a material element of the crime under State v. Torres, 236 N.J. Super. 6, 13 (App. Div. 1989), certif. denied, 122 N.J. 153 (1990). In Torres, we held that "the jury must find that defendant manufactured, distributed, dispensed or possessed the relevant quantity or quality of C.D.S. by proof beyond a reasonable doubt." Ibid.; see also State v. Moore, 304 N.J. Super. 135, 145 (App. Div. 1997) ("[T]he State has to prove how much the defendant possessed in order to satisfy the Code's grading pro visions, and the jury has to so find beyond a reasonable doubt . . . .").

We again considered whether a trial court's failure to instruct a jury that possession of more than 3.5 grams of pure free base cocaine, was a necessary element of a crime under former N.J.S.A. 2C:35-5b(2). State v. Roberson, 246 N.J. Super. 597, 600, 607 (App. Div.), certif. dismissed, 126 N.J. 330 (1991). We noted that the applicable former versions of N.J.S.A. 2C:35-5a(1) and b(2) made it a second-degree crime to possess "more than one-half ounce but less than five ounces of cocaine, which included at least 3.5 grams of pure free base, with intent to distribute." Roberson, supra, 246 N.J. Super. at 600. Possessing less than that amount of free base was a third-degree crime. Id. at 607. We concluded that where the "trial judge overlooked having the jury determine whether the amount of cocaine possessed included at least 3.5 grams of pure cocaine[, t]he error requires reversal of the conviction even though the State's evidence is uncontradicted." Ibid. (citations omitted). We remanded the matter for a new trial on that issue. Ibid. However, because the jury was properly instructed on the lesser-included offense under former N.J.S.A. 2C:35-5b(3), we gave the State the option of having the defendant resentenced for that crime. Roberson, supra, 246 N.J. Super. at 608.

Our Supreme Court has also held that the weight of CDS is a material element under N.J.S.A. 2C:35-5b. State v. Florez, 134 N.J. 570, 595 (1994). Florez, who failed to raise the issue before us, asserted in his cross-petition for certification that the trial judge erred in failing to instruct the jury that the weight of cocaine was an element of the crime under N.J.S.A. 2C:35-5b(1). Florez, supra, 134 N.J. at 595. The Court noted the statute made it a first-degree crime to possess certain types of CDS in a quantity of five ounces or more. Id. at 594-95.

Regarding the weight requirement of the statute, the Court explained:

the State has acknowledged that the weight of the controlled dangerous substance is a material element of the crime of first degree possession with intent to distribute under N.J.S.A. 2C:35-5b(1). Further, the State conceded that the trial court's fail ure to instruct the jury on the weight of the cocaine as an element requires reversal of the second-degree conspiracy conviction. Those positions would appear to be correct.

[Id. at 595 (citing Roberson, supra, 246 N.J. Super. at 607).]

The State relies on State v. Montesano, 298 N.J. Super. 597, 614 (App. Div.), certif. denied, 150 N.J. 27 (1997), for the proposition that a trial judge's charge may put a jury on notice that it had to determine the quantity of CDS, even where the judge "did not specifically state that the weight of the mari juana was an element of the crime that the jury had to determine." The State's reliance on Montesano is misplaced.

Like the instant matter, defense counsel in Montesano failed to object to the form of the jury charge at trial, and in fact agreed that it was acceptable. Id. at 617. However, we observed that "[t]he jury verdict sheet specifically required the jury to determine whether the quantity [of CDS] was more than five pounds. The issue of quantity was thereby placed before the jury and they made a determination on that question." Ibid. Thus, "the State was not relieved of its burden of proof as to the weight of the marijuana and . . . the failure of the trial judge to label the quantity of the marijuana as an element of the offense was not clearly capable of producing an unjust result." Ibid.

Here, the jury was never charged on the issue of weight nor was weight included in the jury verdict sheet. The State urges that the judge "duly charged the jury to consider the weight" of the marijuana and moreover, "admonished the jury to consider the weight of the marijuana in determining defendant's intent regarding it." We are not persuaded by this argument.

The judge's mention of weight was in reference to the charge in the indictment, which immediately preceded his recitation of the elements of the crime. The judge at that point had repeat edly told the jury that they had to consider the law as he gave it and that "[t]he indictment is not evidence of the defendant's guilt on the charges. An indictment is a step in the procedure to bring the matter before the court and jury . . . ." While he did later mention that the jury "may consider any evidence as to the quantity, purity, and packaging [of the marijuana]," that instruction took place in the context of his discussion of intent.

As the State readily admits, "there was no mention dur ing trial of the weight of the marijuana." The State's narcotics expert at trial opined that in order to reach a reasonable value of the drugs, he would "have to weigh it to be more accurate." Further, the lab report that was entered into evidence lists the net weight of the marijuana in grams, while the statute's weight requirements are in ounces and pounds. See N.J.S.A. 2C:35-5b. The jury was never advised of the conversion rate, i.e., that there are 28.35 grams per ounce. See, e.g., Google Reference Tools, Unit Conversion, http://www.google.com/intl/en/help/ features.html#reference (last visited May 27, 2009). As a result, the jury could not have deter mined that defendant possessed more than one ounce of marijuana. This error was clearly capable of producing an unjust result. R. 2:10-2. As a result, we vacate the conviction on Count Four and remand for further proceedings consistent with this opinion.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant in Points II through IV are with out sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We note only that the portion of the 9-1-1 tape played to the jury was admissible res gestae evidence, State v. Martini, 131 N.J. 176, 242 (1993); that admission of the evidence to which defendant did not object respecting the restraining order does not rise to the level of plain error, R. 2:10-2; that there was no abuse of discretion in imposing two six-month terms in light of defendant's extensive criminal history, State v. Roth, 95 N.J. 334, 363-64 (1984), and State v. Hodge, 95 N.J. 369, 376-77 (1984); and that the sentence on the three-year term is rendered moot in light of our reversal of the conviction for possession with intent to distribute.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

 

The State's brief asserts that the total amount seized was 155 grams. However, the lab report only references ninety-five and eight-tenths grams, and no other report or testimony on the weight of the marijuana is in the record.

Aggravating and mitigating factors refer to the sentencing calculus required by N.J.S.A. 2C:44-1a and -1b.

Defendant was paroled on July 24, 2007. New Jersey Department of Corrections, Offender Details, https://www6.state.nj.us/DOC_ Inmate/details?x=1365416&n=0 (last visited May 27, 2009). He remains on parole.

Defendant may wish to plead guilty to a fourth-degree offense, the State may elect to dismiss the indictment on Count Four, or the parties may proceed to a new trial on the charge of possession with intent to distribute.

(continued)

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A-0936-07T4

June 11, 2009