STATE OF NEW JERSEY v. ASSALAAM MATTHEWS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2148-06T42148-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ASSALAAM MATTHEWS,

Defendant-Appellant.

_____________________________________________________________

 

Submitted April 21, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

06-02-0078.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, of counsel and on

the brief).

Anne Milgram, Attorney General, attorney

for respondent (Mary E. McAnally, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Following a jury trial, defendant Assalaam Matthews was acquitted of third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three), but he was convicted of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two). At sentencing on August 10, 2006, count one was merged into count two. The court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f), and defendant was sentenced to an eight-year prison term with four years of parole ineligibility.

Defendant presents the following arguments on appeal:

POINT I

DEFENDANT'S MOTION TO SEVER HIS TRIAL FROM CO-DEFENDANT WAS DENIED IN ERROR SINCE EACH DEFENDANTS THEORY WAS IN DIRECT OPPOSITION OF THE OTHERS RESULTING IN PREJUDICE TO DEFENDANT.

POINT II

THE JUDGES RULING TO ALLOW CROSS EXAMINATION OF CO-DEFENDANT TO REACH BEYOND THE SCOPE OF HER DIRECT EXAMINATION COLLATERALLY PREJUDICED THE DEFENDANT REQUIRING REMAND FOR A NEW TRIAL.

POINT III

THE SENTENCING JUDGE WENT BEYOND HIS SENTENCING DISCRETION WHEN HE USED FACTORS IN OPPOSITION TO HIS OWN FINDINGS AND FACTORS NOT FOUND BY A JURY TO ENHANCE DEFENDANT'S MANDATORY EXTENDED TERM.

Based on our review of the record and briefs, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

On September 2, 2005, at approximately 2:30 p.m., Officer Lawrence Smith and other Elizabeth Police Department officers executed a search warrant at 415 Cherry Street, Apartment 5K, Elizabeth, New Jersey. The residence was located in a high-drug trafficking area and within 1000 feet of Alexander Hamilton Middle School.

When Officer Smith arrived, he encountered defendant and co-defendant Lydia Kolas (Kolas) outside 415 Cherry Street. He asked defendant and Kolas their names, which they gave, and where they lived. Both defendants indicated they lived in Apartment 5K.

Officer Smith obtained keys to the building and apartment from defendant and used one key to enter the building. He knocked on the door of Apartment 5K, but no one answered. Officer Smith noticed that the door was unlocked and proceeded inside the apartment. Smith later verified that the key he received from defendant unlocked the door to Apartment 5K.

Upon entering the apartment, Smith found "60 vials of cocaine, a paper bag full of empty vials, [and] a paper bag with plastic vial tops." The cocaine and empty vials were found inside a small shoebox located on top of a dresser in the rear bedroom. Inside the dresser drawer, the police found a cable bill dated August 18, 2005, addressed to defendant at the apartment, and one piece of mail addressed to Kolas. The police also found an AmeriChoice card in Kolas's name inside the same drawer, and Officer Smith noticed men's and women's clothing on the bedroom floor and inside the bedroom closet.

As the police began the search, defendant and Kolas entered the apartment. After the police discovered the cocaine, Officer Smith advised defendant and Kolas of their Miranda rights. Officer Smith testified that both individuals acknowledged that they understood their rights.

Defendant verbally waived his Miranda rights and agreed to speak with Officer Smith. Officer Smith asked defendant if the cocaine belonged to him. Defendant responded: "I guess I'll take it. They got nothing to do with it." Smith repeated the question and defendant responded: "I'll take it. That's what you want. Right?" After Smith said that all he "really wanted was the truth," defendant said the cocaine was his. Smith asked defendant "how much cocaine was there," and defendant responded: "I'll take it. What more do you want." Once again, Officer Smith stated he "wanted the truth." At that point, Kolas interrupted and said "it's mine."

Officer Smith asked Kolas "how much cocaine was there." Kolas responded: "about 60 bottles." Smith asked Kolas if she made the admission "to protect her boyfriend," and Kolas responded: "it's mine and that's all you need to know." Smith concluded defendant and Kolas shared the bedroom where the cocaine was discovered. Defendant and Kolas were charged, arrested, and transported to police headquarters. Officer Smith recovered $405 from defendant and did not recover any currency from Kolas.

Defendant provided a signed written statement at the police station, which included the following:

[OFFICER SMITH]: Earlier in the apartment did you tell me that the cocaine was yours?

[DEFENDANT]: I said I'll take it and then you said is it yours and I said I'll take it. That's what I said.

[OFFICER SMITH]: When you said that you would take it what did you mean by that?

[DEFENDANT]: I meant that you could charge me with it.

[OFFICER SMITH]: But now you don't want to be charged with it do you?

[DEFENDANT]: Yea, she told you that it was hers.

[OFFICER SMITH]: When you mean her you mean Lydia [Kolas].

[DEFENDANT]: Yeah.

[OFFICER SMITH]: Is it Lydia's cocaine?

[DEFENDANT]: I don't know but that's what she told you. Right?

Defendant did not testify at trial. Kolas testified and answered only two questions on direct examination: After she acknowledged her name, Kolas also acknowledged that defendant was the father of her two children. Over defendant's objection, the court allowed the scope of cross-examination to go beyond the scope of direct examination.

During cross-examination, Kolas testified as follows:

Q. And you were also aware of the cocaine vials that were in your bedroom. Is that correct?

A. Yes.

Q. And you also are aware that you had those vials in your bedroom to distribute those. Is that correct?

A. No.

Q. Why -- you had those, you had 60 vials in your bedroom for personal use? Is that correct?

A. No.

Q. So you had 60 vials in your room and they were just going to stay there and collect dust. Is that your testimony?

A. No.

Q. You and Mr. Matthews both sell that cocaine. Is that correct?

A. No.

Q. Mr. Matthews was aware that that cocaine was in the room. Correct?

A. No.

Q. He had that cocaine in that bedroom?

A. No.

Q. With you. Is that correct?

A. No.

On re-direct, Kolas confirmed that she told Officer Smith "that the drugs are mine," and she also testified that defendant did not know about the drugs:

Q. And what did you tell the officer?

A. That it's mine.

Q. And is that the truth?

A. Yes. It was in my possession at the time of the raid, yes.

Q. Was there any time between Officer Smith asking for the truth and the time you said it was mine for you to consult with Mr. Matthews?

A. No.

Q. So what you told Officer Smith on that day was that the drugs are mine.

A. Yes.

Q. Did Mr. Matthews know anything about the drugs in your apartment?

A. No.

When Kolas was asked: "Do you love Mr. Matthews?", she replied, "Yes, of course." And when Kolas was asked if she would "do anything" for defendant, she answered: "Anything. A wife will do anything for her husband of course."

In his first point, defendant claims the court erred in denying his severance motion. The disposition of a motion for severance "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. J. Brown, 118 N.J. 595, 603 (1990); accord State v. V. Brown, 170 N.J. 138, 160 (2001). "There is a general preference to try codefendants jointly, particularly when much of the same evidence is needed to prosecute each defendant." State v. V. Brown, supra, 170 N.J. at 159-60 (citations omitted) (internal quotations omitted). Nevertheless, "the interest in judicial economy cannot override a defendant's right to a fair trial." State v. Sanchez, 143 N.J. 273, 282 (1996). Accordingly, Rule 3:15-2(b) provides relief from prejudicial joinder:

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

In the present matter, the defenses presented by defendant and Kolas were not antagonistic, and the testimony by Kolas did not prejudice defendant's defense. In fact, her testimony that defendant did not live in her apartment and that defendant was unaware of the cocaine in her apartment bolstered defendant's defense. Under these circumstances, there was no prejudice to defendant and no abuse of discretion by the trial court.

Defendant's second point is equally without merit. Pursuant to N.J.R.E. 611(b), "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." The "scope of cross-examination of a defendant who testifies on his own behalf is not limited solely to matters brought out on his direct examination but may, in the trial court's discretion, cover other relevant matters." State v. Bonet, 132 N.J. Super. 186, 189 (App. Div. 1975).

In the present matter, the jury had heard Officer Smith testify that Kolas had interrupted his conversation with defendant, and admitted that the drugs belonged to her. Thus, the testimony elicited from Kolas on cross-examination was relevant to her credibility and the discovery of cocaine inside her bedroom. In addition, there has been no showing by defendant that Kolas's testimony on cross-examination was prejudicial to his defense. See State v. Murray, 240 N.J. Super. 378, 394 (App. Div.) ("It is well-established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown."), certif. denied, 122 N.J. 334 (1990). Under these circumstances, the court did not err in allowing the State to question Kolas beyond the scope of her direct examination.

Defendant also challenges his sentence, but he does not dispute that he was subject to a mandatory extended term as a repeat drug offender under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present, enhanced sentencing must occur."). In addition to the conviction that made defendant eligible for the mandatory extended term, he had two other indictable convictions and three convictions for disorderly persons offenses. In determining defendant's sentence within the extended-term range, the court found that three aggravating factors were present: (1) the risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record and the nature of his convictions, N.J.S.A. 2C:44-1(a)(6); and (3) the need to deter, N.J.S.A. 2C:44-1(a)(9). Because the court found that the aggravating factors "clearly, convincingly, and substantially" outweighed the one mitigating factor, it imposed an eight-year extended term with four years of parole ineligibility. Under these circumstances, defendant's sentence is not manifestly excessive or unduly punitive, and it does not constitute an abuse of discretion.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant's statement has not been provided to this court. However, Officer Smith read the statement to the jury during his direct testimony.

(continued)

(continued)

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A-2148-06T4

July 24, 2009