STATE OF NEW JERSEY v. VINCENT NICHOLS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1824-07T41824-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

VINCENT NICHOLS,

Respondent-Appellant.

_________________________________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1379.

Robert M. Gamburg, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Rebecca Berger, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Vincent Nichols was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1), and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). After merger, the trial judge imposed a sentence of twelve years imprisonment with a four-year period of parole ineligibility, along with the appropriate monetary penalties and license suspension.

On appeal, defendant raises the following point for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE.

We have considered this argument in light of the record and applicable legal standards. We affirm.

I.

On July 9, 2003, defendant was arrested after he picked up a package at Mailboxes, Etc. in Medford. Inside the package were four plastic containers of a gel-like substance, and inside the gel was more than two kilograms of cocaine. The sole issue at trial was whether defendant knew the packages contained cocaine.

The State's first witness was Christopher Reinhart, the acting manager of the store, who testified the store's practice was to require the business name, address, phone number and two forms of identification from anyone seeking to rent a business mailbox. The person renting the mailbox would receive a copy of the application, a rental agreement, a key to the mailbox, and a key to the store. Only someone authorized to access the mailbox, or someone with the key, could pick up the business' mail.

Reinhart testified that on April 12, 2003, a three-month rental of a mailbox was made by Chantal Michaels in the name of a business, Young and Savvy, located at 7900 Temple Road, Philadelphia. Reinhart recalled that three packages and five envelopes were sent to the mailbox over the ensuing months from Los Angeles. Pursuant to company policy, the mailbox owner was contacted in the event of an overnight delivery, and on one occasion, Reinhart attempted to contact Michaels at the phone number she supplied on the application. An elderly woman answered and complained to Reinhart that she frequently received phone calls from those looking for Michaels. The overnight letter was not picked up for several weeks after its delivery.

When defendant finally arrived to pick it up, Reinhart confronted him about the incorrect phone number. Defendant claimed Michaels was his sister and that he would tell her of the problem. Reinhart grew suspicious when other overnight envelopes were not picked up immediately and he contacted the Postal Service and United Parcel Service.

Two overnight boxes arrived at the mailbox, however, and were picked up immediately. On one occasion, Reinhart saw defendant, who drove a black Infiniti with Pennsylvania license plates, pick up the box. On July 9, 2003, another box arrived from Los Angeles and Reinhart noticed a small tear in the box, and the strong smell of ammonia. He opened the package and saw four plastic containers, each containing a gel-like substance. Reinhart observed a square item immersed in the gel, became suspicious, and told the owner of the store, Mike Palladino, of his discovery.

Palladino contacted detective sergeant Gary Lang of the Medford police department and advised that someone might attempt to pick up the package shortly. Lang dispatched several officers, including sergeant Thomas Switick to the scene, and proceeded there himself. When Switick arrived, he observed defendant carrying "a cardboard box that appeared to have labels on it similar to those of packing labels." Switick told defendant to put the box down and he complied. Switick then asked defendant "where his car was." Defendant claimed not to have a car, and that he had been driven to the store by a friend. When Switick asked defendant where was his friend, defendant looked around the parking lot and said, "he must have left."

Switick took control of the box, and placed defendant in the back of the patrol car until other officers arrived. After some further investigation, Switick located a black Infiniti with Pennsylvania license plates parked in a spot that was "the furtherest (sic) away from the [Mailbox, Etc.] store." Switick confirmed through a computer look-up that the Infiniti was registered to defendant. Switick observed seven "safety deposit box" keys connected by a leather string on the back seat of the Infiniti.

After obtaining a search warrant for the box, Lang opened it and found four "white containers" each filled with a "[b]rownish gel." Inside the gel was a "brick" of a "white substance wrapped in a [c]ellophane brownish paper," which was ultimately revealed to be cocaine. After securing a search warrant, Lang and detective Richard Meder went to 126 West Gorgas Lane, Philadelphia, one of the addresses that defendant supplied as his residence. Meder found a piece of luggage with a tag from Los Angeles Airport, dated February 12, 2003, but, as revealed on cross-examination, no other packaging materials, scales used for weighing narcotics, or other evidence of drug trafficking was found in the apartment.

After obtaining a search warrant for defendant's car, detective Jason Deroian searched the vehicle and found a business envelope with Young and Savvy printed on it that contained the rental agreement for the mailbox in the name of Chantel Michaels. Deroian also found a "larger manila envelope" that contained phone bills and other correspondence in defendant's name, at his Philadelphia address, and another address defendant provided, 7900 Pickering Avenue, Philadelphia. Deroian also found another application and key for a mailbox in the name of Chantel Michaels at a Mailbox, Etc. store in Phoenixville, Pennsylvania. The address given by Michaels was the same as that given for the Medford mailbox. Lastly, Deroian found print-outs of computerized directions to and from defendant's residence and the two Mailbox, Etc. stores, as well as handwritten directions to another Mailbox, Etc. store located in Marlton.

Corporal James D'Averso of the police department testified that he obtained "biographical information" from defendant and interrogated him. Defendant told D'Averso that "he was dropped off by friends to pick up a package from the . . . store." Defendant refused to supply the names of his friends and claimed that "he had no idea what was in the package[.]" Defendant would not respond when asked what type of vehicle his friends drove, or whether he owned a car, ultimately telling D'Averso he was not the owner of the Infiniti.

Detective Christopher Chew of the Evesham Township police department testified that after receiving the address of the store in Marlton from Lang, he proceeded to that store and secured an overnight envelope sent from California on February 12, 2003, to a business mailbox in the name of Manning Clothing. Chew testified that the mailbox was opened by a Lori Lopez who also provided a Temple Road address in Philadelphia. Chew seized the package and obtained a search warrant. When opened, the envelope revealed a newspaper from Torrance, California, dated February 4, 2003, but no narcotics.

Detective John Shaw of the Burlington County Prosecutor's Office testified regarding the various distances between the addresses defendant supplied as his residences, and the Mailbox, Etc. stores. He also testified regarding the relative proximity of other stores in Pennsylvania to defendant's residences. Special Agent Samuel Trotman of the Drug Enforcement Agency testified that the addresses given by Chantel Michaels and Lori Lopez were entirely fictitious. He also detailed some of the calls made from defendant's cellular telephone to Torrance, California.

Lastly, the State called detective Sergeant Daniel Leon of the Burlington County Prosecutor's Office as an expert in the field of narcotic trafficking. He testified that when drug distributors used a Mailbox, Etc. or similar store frequently, they would first send test packages to see if the authorities were alerted. He claimed that the package sent to the Marlton store that contained only a newspaper was such a test package. Leon testified regarding the packaging of narcotics sent through the mail and described the role of a "mule" in the operation as someone who "just transports for a fee." Leon testified that the "mule" usually understood what it was they were picking up because "they are getting a fee for that service[,]" and they do not get paid until they deliver the package safely to someone else in the distribution scheme. Leon opined that someone receiving more than two kilograms of cocaine in the mail intended it to be distributed and it was not for personal use. In his opinion, Leon believed the cocaine in this case was worth more than $200,000 on the street.

The State rested, and defendant moved for a judgment of acquittal, Rule 3:18-1, arguing that the State had failed to prove he "knew or intended to actually possess the cocaine" that was in the box. The State countered that the circumstantial evidence introduced was sufficient to demonstrate beyond a rasonable doubt that defendant knowingly possessed cocaine. The judge concluded that giving the State all favorable inferences, and particularly in light of the expert testimony, there was sufficient evidence and denied the motion.

II.

When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):

[W]hether, viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilty of the charge beyond a reasonable doubt.

[Id. at 459.]

We review the decision of the trial judge de novo applying the same standard. See State v. Bunch, 180 N.J. 534, 549 (2004). Defendant, relying exclusively upon our holding in State v. Richards, 155 N.J. Super. 106 (App. Div.), certif. denied, 77 N.J. 478 (1978), contends the State failed to adequately prove defendant's possession of the package was with "knowledge of [its] contents."

"[W]hen used in our criminal statutes, possession signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character." State v. Pena, 178 N.J. 297, 305 (2004)(internal citations and quotations omitted). Defendant can not be guilty of the crimes charged unless the evidence was sufficient to permit a jury to find beyond a reasonable doubt that "he knew or was aware, at a minimum, that he possessed" a controlled dangerous substance. Ibid. However, in order to sustain its burden, the State need not prove defendant knew he specifically possessed cocaine as opposed to some other drug. State v. Edwards, 257 N.J. Super. 1, 4-5 (App. Div. 1992).

The totality of the circumstances surrounding a defendant's possession of narcotics may be assessed in determining whether he knew of their nature, character, and existence. See State v. Palacio, 111 N.J. 543, 554 (1988). And, frequently the use of expert testimony may "inform [a jury] about the nuanced techniques utilized by drug peddlers who seek to shield themselves from liability by concealing or obfuscating their drug possession and distribution activities." State v. Nesbitt, 185 N.J. 504, 514 (2006).

We conclude that there was sufficient evidence to prove defendant's "knowing, intentional" possession of the cocaine contained in the package he picked up at the Mailboxes, Etc. Pena, supra, 178 N.J. at 305. There was abundant evidence that defendant intentionally utilized three stores that were many miles away from his home address and the address used by the fictitious business entity that opened the mailboxes. Despite notification that overnight deliveries had been made, defendant evidenced no desire to pick up the envelopes and frequently left them in the store for weeks as a time. On the day in question, defendant's conduct was certainly suspicious in that he denied driving himself to the store and having a car at all, yet his car was in the lot parked far from the store's entrance. All these things buttress a reasonable inference that defendant knew he was participating in a criminal scheme to obtain and distribute narcotics.

The expert testimony offered by the State only further supported and explained defendant's role in the operation, and it explained these curious activities so that they made sense. Moreover, the expert testimony explained why it was that a "mule" in the operation, the role attributed to defendant, would likely know that he was transporting narcotics.

The circumstantial evidence in this case serves to distinguish it completely from our holding in Richards, supra. There, police executed a controlled delivery of a large amount of marijuana to defendant's address. 155 N.J. Super. at 110. The defendant's wife signed for the package and left it in the hallway of the apartment. Ibid. Three days later, the police obtained a search warrant and found the package exactly where it had been left. Id. at 111-112. We held, "knowing and intentional possession cannot be inferred merely from the fact of delivery . . . by mail or common carrier of a sealed package containing the illegal goods, and [] acceptance of the package by itself cannot yield an inference of knowledge by the recipient of its contents." Id. at 113. We further observed that "something more by way of attendant circumstances must be shown from which an inference can be drawn that defendant also knew what was in the package[.]" Ibid.

As we have already noted above, in this case, there was "something more" than defendant's mere receipt of the package containing the cocaine. Under all the attendant circumstances, the State carried its burden of proof, and defendant's motion for acquittal was properly denied by the trial judge.

Affirmed.

 

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A-1824-07T4

January 16, 2009