STATE OF NEW JERSEY v. JACK CANTY

(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NOT FOR PUBLICATION WITHOUT THE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-6323-06T43231-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACK CANTY,

Defendant-Appellant.

___________________________

 

Submitted January 13, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-08-1036.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Lucinda J. McLaughlin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Jack Canty was convicted of third-degree distribution of a controlled dangerous substance, amitriptyline, in violation of N.J.S.A. 2C:35-5(a)(1) and (b)(3). On September 30, 2005, he was sentenced, pursuant to N.J.S.A. 2C:43-6(f), to an extended prison term of seven years with a forty-two-month period of parole ineligibility. On appeal, defendant raises several claims of trial error and a claim that his sentence is excessive. For the reasons that follow, we affirm his conviction, but remand for resentencing and for entry of a corrected judgment of conviction.

This case arises from a series of events that occurred on May 29, 2004, in front of the Suburban Methadone Clinic in Union, New Jersey. On that morning, members of the Union Township Police Department were conducting a surveillance of the area surrounding the clinic because of its reputation as a high-crime and drug trafficking area.

On the first day of trial, the judge conducted an in camera hearing on the State's motion for a protective order preventing disclosure of the surveillance location used by the police. At the conclusion of that hearing, the trial judge issued a preliminary determination not to reveal the location; defendant thereafter brought a motion seeking to reveal that information; he also brought a motion to suppress. The trial judge denied both motions.

Officer Michael Wittevrongel of the Street Crimes Unit in the Union Township Police Department, testified at the suppression hearing and later before the jury. He stated that he and three other officers were "assigned a special detail" to conduct surveillance of the clinic in response to numerous complaints of "quality of life crimes," such as drug sales and theft. Wittevrongel stated that the area in question had been targeted for surveillance because of the unusually high volume of complaints received.

At approximately 8:30 a.m., Wittevrongel was observing a line of about fifty people in front of the clinic from a distance of twenty-five to thirty feet away; his view of the line was unobstructed; the weather "was clear [and] sunny"; and he did not need to use binoculars.

Wittevrongel observed a white female having a conversation with a man in the line, later identified as defendant, whom Wittevrongel described as a "black male, bald head . . . wearing black shorts and a black quilted jacket." As the officer watched, the woman crouched down and reached into her pocketbook. The man then reached into his pocket, pulled something out and showed it to her. Wittevrongel stated that he suspected the items in the man's hand to be "illegal drugs," but that he could not see the actual items nor could he describe them beyond indicating that they were "small."

Wittevrongel testified that he then observed the woman look into the man's open palm, exchange paper currency for the items he was holding and place those items in her pocketbook. Wittevrongel concluded that the exchange involved "a narcotic due to the actions of both parties." Wittevrongel further testified that during his thirteen-year career as a narcotics officer, he had come to learn that transactions of the type he observed that morning were "always . . . a drug deal" and never turned out to be anything else.

Immediately after observing this transaction, Wittevrongel radioed the other officers on surveillance; he described the two individuals, as well as the exchange he had observed.

Officer Walter Stinner, also of the Street Crimes Unit, testified at the motion to suppress hearing and before the jury. He stated that he participated in the surveillance on the date in question as one of the arresting officers. Upon receiving Wittevrongel's radio transmission, Stinner and Officer Michael David Boll stopped a male and a female on the corner. Stinner described the male as black with a bald head and wearing shorts and a black jacket. He described the female as wearing a "blue head rag." Stinner testified that after stopping the two individuals, he searched the man and "found 11 [brown] pills in his right jacket pocket" contained within an "amber pill bottle with a white cap" and a scraped-off label. The pills bore the marking "2103V," and Stinner believed them to be Xanax.

Boll testified before the jury that he arrested the female, later identified as Meaghan Sweeney, and then conducted a search of her. He recovered "several different types of pills" from her pocketbook, including two brown pills stamped with the marking "2103V."

Defendant testified at the suppression hearing that his doctor, Musafa Sidaley, had prescribed amitriptyline, an anti-depressant, as a sleep aid. Defendant introduced pharmacy and medical records indicating that he had received three thirty-day prescriptions for that drug on April 14, May 13, and June 22, 2004. Defendant did not testify before the jury; nor did he call any witnesses on his behalf.

On appeal, defendant presents the following arguments for our consideration:

POINT I:

PURSUANT TO N.J. Ct.R. 3:13-3(f)(2), THE COURT MUST GRANT THE DEFENDANT'S MOTION TO REVIEW THE SEALED IN CAMERA HEARING REGARDING THE ISSUANCE OF THE PROTECTIVE ORDER PREVENTING DISCLOSURE OF THE SURVEILLANCE LOCATION IN ORDER TO DETERMINE IF THE TRIAL COURT ABUSED ITS DISCRETION AND WHETHER FAILURE TO DISCLOSE THIS INFORMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT II:

THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED AGAINST THE DEFENDANT AND MS. SWEENEY. THE STATE FAILED ITS BURDEN OF PERSUASION WHEN IT FAILED TO PRESENT ANY EVIDENCE WITH REGARD TO THE STOP AND SEIZURE OF EVIDENCE FROM MS. SWEENEY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM MS. SWEENEY.

POINT III:

THE STATE'S RELIANCE ON TESTIMONY THAT MEAGHAN SWEENEY WAS ARRESTED WITH TWO PILLS ON HER WITHOUT HAVING HER TESTIMONY AT THE TRIAL VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM IN VIOLATION OF THE PRINCIPLES ARTICULATED IN STATE V. BANKSTON, INFRA. [Not raised below.]

POINT IV:

THE COURT ERRED AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL WHEN IT DETERMINED AS A MATTER OF LAW THAT MS. SWEENEY'S ASENCE FROM THE TRIAL WAS EXCUSABLE AND WHEN IT ISSUED A CHARGE TO THE JURY INSTRUCTING THEM THAT THEY COULD NOT DRAW ANY INFERENCE FROM THAT FACT AGAINST EITHER PARTY.

POINT V:

OFFICER WITTEVRONGEL'S OPINION THAT THE CONDUCT HE OBSERVED ALWAYS REVEALS A SALE OF NARCOTICS WAS AN IMPERMISSIBLE EXPERT OPINION ON THE GUILT OR INNOCENCE OF THE DEFENDANT CONSTITUTING PLAIN ERROR. THE STATE'S RELIANCE ON THIS TESTIMONY DURING SUMMATION COMPOUNDED THE PREJUDICIAL ERROR OF THIS TESTIMONY THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. [Not raised below.]

POINT VI:

THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN THE CHARGES AGAINST THE DEFENDANT. THE COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT VII:

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING PROVISIONS. THE COURT PENALIZED THE DEFENDANT FOR EXERCISING HIS RIGHT TO A JURY TRIAL WHEN IT IMPROPERLY INCREASED THE SENTENCE AFTER THE STATE OBJECTED TO THE TERM ORIGINALLY IMPOSED. THE STATE, IN ESSENCE, VIOLATED N.J.S.A. 2C:44-1F(2) WHEN IT COMPLAINED ABOUT THE SENTENCE IMPOSED AND CONVINCED THE COURT TO INCREASE THE SENTENCE IN THIS MATTER.

Having reviewed these contentions in light of the record and the controlling legal principles, we find insufficient merit in the six claims of trial error to warrant reversal of defendant's conviction. Defendant's sentencing will be discussed below.

Defendant's first argument, regarding disclosure of the police officers' surveillance location, led to an order of this court requiring production of the transcript of the pre-trial in camera hearing held by the trial judge on April 1, 2005. Having reviewed that transcript, we conclude the trial judge properly found that disclosure of the surveillance location would present a risk to the Union Township Police Department's Street Crimes Unit's operation.

As noted, Officer Wittevrongel described the area in question as one known for its high crime rate and ongoing drug trafficking, particularly in the area immediately surrounding the Suburban Methadone Clinic. In his in camera testimony, Wittevrongel presented a compelling case for the Unit's need to maintain its surveillance location in order to continue effective policing of that area.

In State v. Garcia, 131 N.J. 67, 81 (1993), the Supreme Court set forth the standard of review of a trial court's refusal to disclose a police surveillance location as whether "after weighing the competing factors, the trial court abused its discretion." Based on the record established at the in camera hearing, we are satisfied that the trial judge did not abuse his discretion in declining to disclose the surveillance location.

When defendant renewed his motion to disclose the surveillance location, his counsel stated: "And when I state location I'm referring specifically to distance, whether or not there's any elevation, whether it's inside a structure." The trial judge responded that counsel could question Wittevrongel "about elevation, . . . about binoculars or enhancement. . . . about distance, you can ask about angle, there are a number of things you can ask about . . . ." Counsel replied: "Well, after . . . cross-examining the officer[,] I think the distance is enough."

Under the circumstances, we are satisfied that disclosure of the surveillance location was not "essential to a fair determination of [defendant's] case," id. at 80, and therefore this issue is without merit. R. 2:11-3(e)(2).

Defendant next argues that the trial judge erred in denying his motion to suppress evidence of pills found in his possession, as well as in the possession of Meghan Sweeney. Again, we find this argument to be without merit and affirm substantially for the reasons stated by the trial judge in his decision from the bench at the conclusion of the hearing on defendant's motion.

Suffice it to say, the record contained the eyewitness testimony of an experienced police officer, Wittevrongel, that a narcotics transaction had occurred between defendant and Sweeney. Based upon that observation, Wittevrongel radioed descriptions of defendant and Sweeney to his back-up officers, along with a description of the transaction he had witnessed. Officers Stinner and Boll detained and searched defendant and Sweeney based upon Wittevrongel's information.

In light of this record, we concur with the trial judge's findings and conclusions in denying defendant's motion to suppress:

Thus, based on the officer's experience . . . with such drug transactions and the fact that the area was a known narcotics distribution area, the police had probable cause to arrest the defendant, at the very least the officers had probable cause to order the detention and search of both . . . people, including Ms. Sweeney. Thus, the officers had probable cause to arrest [defendant] and search his person, this was lawfully conducted incident to a legal arrest. . . .

[D]efendant . . . has standing to challenge the legality of the searches conducted of both people[,] however, in my view the officers not only had exigent circumstances but had sufficient probable cause based upon their experience to justify the [warrantless] search . . . .

Defendant concedes that the police "may have had a reasonable and articulable suspicion" to justify stopping both Sweeney and defendant, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He argues, however, that "there was no basis to conclude the existence of probable cause to arrest either individual or to conduct a search and seizure of any evidence." We disagree.

In State v. Moore, 181 N.J. 40, 45 (2004), the Supreme Court revisited the "standards for determining probable cause to arrest and probable cause to search . . . ." The Court held:

In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." The factors to be considered in applying that test include a police officer's "common and specialized experience," and evidence concerning the high-crime reputation of an area[.] Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause."

[Id. at 46 (citations omitted).]

Applying these principles to the present case, we conclude that Officer Wittevrongel, an experienced narcotics officer familiar with the neighborhood and its reputation for heavy drug trafficking, observed what in his experience appeared to be a narcotics-related transaction in front of the methadone clinic. Thus, as in Moore,

[b]ased on his experience and those factors, it was reasonable for [Officer Wittevrongel] to conclude that the totality of the circumstances supported a well-grounded suspicion that he had witnessed a drug transaction. Therefore, the trial [judge] properly determined that there was probable cause for [the police officers] to arrest defendant [and Sweeney].

[Id. at 47.]

Regarding the evidence seized from Sweeney, defendant's assertion that "the State did not present any testimony with regard with the stop, arrest and search of Ms. Sweeney[,]" is simply erroneous. Officer Boll, part of the "arrest team" in the surveillance operation, received a description of Sweeney from Wittevrongel, and stopped Sweeney shortly after receiving that transmission. Boll placed Sweeney under arrest, searched her incident to that arrest and recovered several pills from her purse, including the two brown pills that he identified at trial.

Even assuming, as the trial judge found, that defendant had standing "to contest the seizure[]" from Sweeney, we conclude that the judge properly framed "the inquiry as to whether those seizures were legal [as] hing[ing] on whether the officers had probable cause to arrest . . . both Ms. Sweeney and [defendant]. Regardless of which evidence the defendant is challenging, the probable cause inquiry must be the same. . . ."

Throughout his argument on this point, defendant reiterates that there was no "testimony to what transpired between the officers and Ms. Sweeney," and, therefore, "the record does not reveal whether the officers established probable cause before arresting her or merely arrested and searched her person and pocketbook for the evidence seized." Based on the evidence of record, particularly Officer Boll's testimony, we find this argument to be wholly without merit. R. 2:11-3(e)(2).

Similarly, defendant's next argument, that Boll's testimony regarding his arrest and search of Sweeney constituted hearsay evidence in violation of State v. Bankston, 63 N.J. 263, 268-69 (1973), is without merit. As noted, Boll testified as to the arrest and search of Sweeney that he personally conducted and what he found as a result of the search; his testimony was not based upon any statements made by Sweeney. Under these circumstances, defendant did not suffer the prejudice identified in Bankston that arises "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt . . . ." Id. at 271.

Defendant's argument that the "'logical implication to be drawn from the testimony' is that Ms. Sweeney told the arresting officers that she purchased the two pills from the defendant thereby allowing the jury to believe that this non-testifying witness had given the police evidence of the defendant's guilt[,]" is baseless. The nexus between Boll's search of Sweeney and his seizure of the pills found in her purse was the information conveyed to him by Wittevrongel. We conclude that, under these circumstances, defendant's rights to confrontation of witnesses and to a fair trial were not violated by the admission of this evidence.

Defendant's remaining claims of trial errors are "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, since Sweeney was a fugitive at the time of defendant's trial, the State was unable to compel her appearance at that trial. Therefore, the judge properly determined that her absence was excusable, and committed no error in instructing the jury to draw no adverse inference from Sweeney's absence against either party.

Defendant's contention that Wittevrongel should not have been permitted to testify that the conduct he observed is "always . . . a drug deal" is raised as plain error, as no objection to this testimony was lodged at trial. Given the officer's entire testimony, including his description of his thirteen-year experience as a narcotics officer, we are satisfied that this passing comment in the context of his testimony was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.

In considering defendant's motion for a judgment of acquittal, we concur with the trial judge's decision that there was sufficient evidence to warrant submission of the case to the jury.

When deciding such a motion,

the question the trial judge must determine is whether, viewing the State's 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 guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

Given the evidence, we conclude the trial judge properly answered this "question" in the affirmative.

Finally, defendant challenges his sentence as excessive. His first argument is that the "State submitted an affidavit in support of its motion but did not elaborate what specific reasons it was relying upon to justify its decision to seek a mandatory extended term sentence . . . ." This contention is without merit.

N.J.S.A. 2C:43-6(f) provides that a

person convicted of . . . distributing . . . any dangerous substance . . . under N.J.S. 2C:35-5, . . . who has been previously convicted of . . . distributing . . . or possessing with intent to distribute a controlled dangerous substance . . ., shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7 . . . .

Defendant's extensive prior record includes a 1996 conviction for third-degree possession of a controlled dangerous substance with intent to distribute. Thus, defendant was clearly extended-term eligible under N.J.S.A. 2C:43-6(f).

In fact, at sentencing, defense counsel acknowledged that, under the statute, defendant was subject to a "mandatory extended term[] for drug related activity . . . ." Contrary to defendant's assertion, the prosecutor did state on the record her reasons for seeking an extended term, as follows:

Apparently, in light of the defendant's record, it doesn't appear that the defendant was in any way dissuaded by his prior convictions for similar offenses. . . . He is extended . . . mand[a]torily, because it's one of multiple drug offenses he's been convicted of and he has prior involvement with drugs and distribution and intent.

We do find merit, however, in defendant's second sentencing argument relating to the manner in which the trial judge arrived at the term of seven years with a forty-two-month parole ineligibility period. Initially, the judge imposed a sentence of six years with a three-year parole ineligibility period. This led to the following colloquy between the prosecutor and the judge:

[PROSECUTOR]: Can I place on the record that that is, pretty much, exactly the same offer that we offered the defendant prior to going to trial. So, in a sense, he played with house money. There was no incentive for him not to go to trial because the same offer he had, the 36-month stip, prior to going to trial and I would think that - -

THE COURT: Is that what the offer was?

[PROSECUTOR]: 5 with a 36.

With all due respect, I think, if anything, that would set a negative precedent that, in a sense, any defendant would say, "Let's throw the dice and go to trial.["] He used up the [c]ourt's resources, State's resources, [to] go to trial and get convicted and get the same sentence. I don't think it gives any incentive for any defendants - -

THE COURT: You wish there [to] be a higher sentence?

[PROSECUTOR]: A much higher sentence.

. . . .

THE COURT: Well, in light of the fact that I was unaware of what the original offer was I think that the [p]rosecut[or] is correct. If he is only going to get the same thing he would have got[ten] had he gotten it in the first place then there is no incentive to enter a plea of guilty to the charge and also, you know, the maximum sentence on this case would be 10 years.

So what I'm going to do is I'll amend my original decision, sentence the defendant to 7 years with a 42-month stip.

Appellate review of sentencing encompasses three distinct determinations:

first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

We conclude that by taking the pre-trial plea offer into consideration at sentencing, the trial judge did not follow "the correct sentencing guidelines," id. at 365; nor did he apply the sentencing guidelines only to "the relevant facts." Id. at 366.

"A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment." N.J.S.A. 2C:44-1(c)(1) (emphasis added). Additionally, "[u]nder the [Criminal] Code, . . . there can be neither punishment nor benefit derived from a rejected negotiated disposition." State v. Pennington, 154 N.J. 344, 363 (1998). When, as occurred here, a defendant rejects the State's plea offer, "the plea negotiations [are] void for all purposes and c[an] be afforded no substantive weight by either the trial or appellate court." Ibid.

Because we conclude the trial judge erred in this respect, we remand for re-sentencing in accordance with the "correct sentencing guidelines." Roth, supra, 95 N.J. at 365. In remanding, we take no position on what term is appropriate, only that the proper guidelines should inform that ultimate decision.

We note further that defendant's judgment of conviction states that adjudication was by a guilty plea. On remand, the judgment shall be amended to reflect that adjudication was by a jury trial.

Defendant's conviction is affirmed. The matter is remanded for re-sentencing in conformance with this decision.

 

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A-3231-05T4

June 16, 2009