STATE OF NEW JERSEY v. JAMES F. BOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1930-06T41930-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES F. BOYD,

Defendant-Appellant.

_______________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-07-1487.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James F. Boyd was charged under Atlantic County Indictment No. 05-07-1487 with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).

On April 18, 2006, after his motion to suppress was denied, defendant pled guilty to possession of a CDS, as charged in count one. Defendant was then tried before a jury, which found him guilty on all of the remaining charges. The trial court thereafter sentenced defendant to an aggregate seven-year term of imprisonment. Defendant appeals, challenging his convictions and the sentences imposed. For the reasons that follow, we affirm but remand the matter to the trial court for entry of a corrected judgment of conviction merging counts two and three with count four.

I.

We briefly summarize the evidence presented at the trial of this matter. James Armstrong (Armstrong) was employed by the Atlantic City Police Department (ACPD) as a detective. Armstrong testified that, on May 26, 2005, at about 8:00 p.m., he was conducting surveillance in the area of Kentucky and Bellevue Avenues in Atlantic City, which he described as a "high narcotics trafficking area[.]"

Armstrong said that he observed an unidentified black male approach defendant and engage him in a brief conversation. The unidentified male handed defendant paper currency. Defendant, in turn, reached into his pocket, took out an item and handed it to the unidentified male, who then departed.

Armstrong was using binoculars at the time. He stated that his view of the interchange between defendant and the unidentified male was unobstructed. Armstrong said that it was dark at the time but the street lights were on and he was able to see their faces and what they were wearing. He stated that defendant "was wearing a distinctive red jacket and red bandanna[.]" The unidentified male was wearing a brown leather coat. There were no other persons on the street at the time.

Armstrong additionally stated that, after the exchange with the unidentified male, defendant walked north on Kentucky Avenue, where he met two other males. Armstrong left the surveillance location, got into his marked police car and went to look for defendant. Armstrong observed defendant with the other males walking northbound on Kentucky Avenue. Armstrong and another officer stopped the three men.

Armstrong searched the right front pocket of defendant's pants. He said that he found "five small green ziplock type baggies containing a white rocky substance." Armstrong searched the left front pocket of defendant's pants and found sixty dollars in cash. In the right front cargo pocket of defendant's pants, Armstrong recovered "fifteen empty small green ziplock type baggies" and "rubber surgical gloves."

Armstrong testified that the baggies "are consistent with packaging narcotics for sale." He further testified that the rubber gloves are used to package narcotics "because the bags are so small that often times if you are doing [the packaging] with your skin, [the drugs] would stick to your fingers."

Armstrong placed defendant under arrest and transported him to police headquarters. He testified that he secured the narcotics. Armstrong also identified a map that depicts the City's schools and a one-thousand-foot radius around each school. He identified another map that depicts certain areas designated as public property and a five-hundred-foot radius around each of those areas. Armstrong pointed out the location where defendant had engaged in the exchange with the unidentified male.

Donna Green (Green), who was also employed by the ACPD as a detective, testified that in June 2005, she served as the department's narcotics custodian. She said that she had responsibility to "oversee all [of] the narcotics evidence that was seized by the department." Green stated that on June 9, 2005, she transported evidence seized from defendant to the State Police laboratory in Hammonton, New Jersey for testing. The results of the tests were admitted into evidence. The tests were positive for cocaine.

Defendant elected not to testify and he did not call any witnesses in his behalf. He was convicted of possession of a CDS with intent to distribute (count two); possession of a CDS with intent to distribute within 1,000 feet of school property (count three); and possession of a CDS with intent to distribute within 500 feet of a public park (count four).

Defendant was sentenced on August 25, 2006. The court imposed a seven-year term of imprisonment on count four, and a four-year term of incarceration, with a three-year period of parole ineligibility, on count three. The court additionally imposed concurrent four-year terms of imprisonment on counts one and two. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

BY ACCEPTING [DEFENDANT'S] GUILTY PLEA TO SIMPLE POSSESSION OF CDS, WHILE BARRING HIM FROM INFORMING THE JURY OF THE PLEA, AND BY FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE POSSESSION, THE TRIAL COURT DEPRIVED [DEFENDANT] OF HIS RIGHTS TO PRESENT A DEFENSE AND TO DUE PROCESS. U.S. CONST., Amends. VI, XIV,; N.J. CONST. Art I, 1, 10 (PARTIALLY RAISED BELOW).

A. The Judge Accepted [Defendant's] Guilty Plea to Simple Possession, but Denied Him the Opportunity to Inform the Jury of his Plea.

B. By Failing to Instruct the Jury on the Lesser-[I]ncluded Offense of Simple Possession, the Judge Deprived [Defendant] of His Constitutional Rights to Due Process.

POINT II

DEFENSE COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON THE NECESSARY-INCLUDED OFFENSE OF SIMPLE POSSESSION OF CDS, THEREBY DEPRIVING [DEFENDANT] OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE JUDGE ERRED IN FAILING TO ORDER THE MERGER OF ALL SUBORDINATE COUNTS INTO THE CONVICTION FOR DISTRIBUTION OF CDS, WITHIN 500 FEET OF A PUBLIC PARK (NOT RAISED BELOW).

POINT IV

THE AGGREGATE SENTENCE OF A SEVEN-YEAR PRISON TERM IS EXCESSIVE, NECESSITATING REMAND FOR RESENTENCING.

II.

We first consider defendant's contention that the trial court erred by precluding him from informing the jury of his guilty plea to simple possession of a CDS.

As stated previously, defendant elected to plead guilty to count one, which charged possession of a CDS. Initially, the trial court had expressed reservations about permitting defendant to plead guilty to possession while contesting at trial the charges that he possessed the drugs with intent to distribute them.

After hearing further argument on the issue, the court decided to accept defendant's plea. The court ruled that the State could present evidence concerning the plea. The court further ruled that defendant could concede before the jury that he possessed the cocaine, but he could not present evidence that he had pled guilty to the possession charge. At trial, the State did not present any evidence regarding the plea, nor did defendant concede that he possessed the drugs.

Defendant argues that evidence regarding his plea was admissible under N.J.R.E. 803(c)(25). Defendant's plea was hearsay. It was a statement, made prior to the trial, that was offered to prove the truth of the matter asserted. N.J.R.E. 802. Such evidence is generally inadmissible except as otherwise provided by the evidence rules or other law N.J.R.E. 802. A statement against a declarant's interest is one such exception. N.J.R.E. 803(c)(25).

Defendant's plea to the possession charge falls within the exception in N.J.R.E. 803(c)(25). "[A] statement in which a party confesses to having committed a crime subjects the declarant to criminal liability, and therefore constitutes a statement that is against interest." State v. White, 158 N.J. 230, 238 (1999). Although N.J.R.E. 803(c)(25) envisions that a statement against a defendant's interest would be offered by a party other than the accused, the rule does not expressly preclude a defendant from admitting his own statement against interest.

Thus, the trial court erred by barring defendant from presenting evidence regarding his plea. Even so, we are convinced that defendant was not prejudiced by the trial court's erroneous ruling. "An error is harmless unless there is a reasonable doubt that the error contributed to the verdict." White, supra, 158 N.J. at 247 (citing State v. Macon, 57 N.J. 325, 338 (1971)).

Here, the evidence that defendant possessed the cocaine was essentially unrefuted. Defendant's principal contention was that he possessed the drugs for his own personal use rather than with any intent to distribute them. Evidence that defendant pled guilty to possession of the cocaine would not have had any bearing on whether he possessed the cocaine with intent to distribute. Thus, the court's decision to preclude defendant from admitting evidence regarding his plea did not in any sense contribute to the jury's verdict.

Defendant additionally argues that the trial court's ruling impermissibly infringed upon his constitutional right to present evidence in support of his defense. Again, we disagree.

"A defendant in a criminal trial has a Sixth Amendment right to offer any evidence that refutes guilt or bolsters a claim of innocence." State v. Harris, 156 N.J. 122, 177 (1998) (citing State v. Garfole, 76 N.J. 445, 452-53 (1978), cert. denied sub nom., Harris v. N.J., 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001)). As stated previously, the evidence regarding defendant's plea to possession of a CDS did not refute the charges that he possessed the CDS with intent to distribute nor did it bolster his claim of innocence on these charges. Thus, the trial court's ruling did not deny defendant of his constitutional right to present a defense to the intent-to-distribute charges.

III.

We turn to defendant's contention that the trial court erred by failing to instruct the jury on possession of a CDS as a lesser-included offense to the intent-to-distribute charges in counts two, three and four. We note that at trial defendant's attorney did not seek these instructions. Thus, we consider whether the judge's failure to provide the instructions is plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2. We conclude that it was not.

Where, as here, neither the State nor the defendant seek the instruction, a trial court is not required to instruct the jury sua sponte on a lesser-included offense unless "'the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). In this case, the evidence did not "clearly indicate" the need for the charge on the lesser-included offense.

Here, the State presented substantial, if not overwhelming, evidence that defendant possessed the cocaine with intent to distribute. As noted, Armstrong testified that he found defendant in possession of "five small green ziplock type baggies containing a white rocky substance," sixty dollars in cash, and "fifteen empty small green ziplock type baggies" and "rubber surgical gloves." Armstrong further testified that the baggies and the rubber gloves were consistent with the packaging of narcotics for sale. Defendant was also seen engaging in what appeared to be a drug transaction in an area known for narcotics trafficking.

Thus, the evidence did not "clearly indicate" that the jury could convict defendant of the lesser-included offense of possession and acquit him of the intent-to-distribute charges. Accordingly, the absence of the instruction on the lesser-included offense was not erroneous, let alone an error "clearly capable of producing an unjust result." R. 2:10-2.

IV.

Next, defendant argues that he was deprived of the effective assistance of counsel because his trial attorney failed to seek an instruction on the lesser-included offense of possession. To prevail on such a claim, a defendant must satisfy a two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

First, a defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, the defendant must show that his attorney's deficient performance prejudiced his defense. Ibid. To do so, the defendant must establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant's ineffective-assistance-of-counsel claim fails. As we have explained, defendant was not prejudiced by the absence of an instruction on the lesser-included offense. We are satisfied that, based on the evidence presented at trial, the result here would not have been different if the jury had been charged on the lesser offense.

V.

Defendant also raises several arguments with regard to his sentences. Defendant maintains that the court erred by failing to merge counts one, two and three with count four, which charged defendant with second-degree possession of a CDS with intent to distribute within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1.

The State concedes that the counts should have been merged for sentencing. We agree and remand for the entry of a corrected judgment of conviction merging the offenses.

Defendant also argues that, after merger, the resulting sentence of seven years of incarceration, with a three-year period of parole ineligibility, is excessive. We disagree.

When sentencing defendant, the trial court observed that:

defendant is [twenty-two] years of age. As a juvenile, he has an extensive juvenile record of [thirty-eight] arrests, with [fourteen] delinquency adjudications, . . .

As an adult, [defendant's] record began in 2001 and consists of five arrests, with now two indictable convictions. His prior convictions were for possession of CDS and conspiracy to distribute CDS. His criminality does not appear to be the result of substance abuse and he denies the need for treatment.

The trial court found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court found no mitigating factors. The court further found that the aggravating factors outweighed the mitigating factors.

Defendant asserts that he has two prior adult convictions for CDS offenses. He says that the offenses for which he was sentenced arose out of a single incident, did not involve violence or a threat of violence, and his conduct neither caused nor threatened serious harm. He therefore argues that the court should have found mitigating factors under N.J.S.A. 2C:44-1b(1) and (2). Defendant additionally argues that a long term of imprisonment will entail excessive hardship to himself, "given his youth." He thus maintains that the court should have found a mitigating factor under N.J.S.A. 2C:44-1b(11). In our view, these contentions are without sufficient merit to warrant comment in this opinion. R. 2:11-3(e)(2).

In short, we are convinced that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed and remanded to the trial court for entry of a corrected judgment of conviction merging counts one, two and three with count four.

 

We note that, according to the judgment of conviction, defendant was sentenced to seven years of incarceration on count four. He was sentenced to four years of incarceration on count three, with a three-year period of parole ineligibility. As defendant recognizes, the period of parole ineligibility on count three survives the merger. State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000).

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A-1930-06T4

March 20, 2009