STATE OF NEW JERSEY v. ABRAHAM BUTLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2835-08T42835-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABRAHAM BUTLER, a/k/a

ABRAHAM BUTTLER, a/k/a

DWAYNE ROBINSON,

Defendant-Appellant.

_______________________________________

 

Submitted May 10, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1852.

Yvonne Smith Segars, Public Defender, attorney for appellant (Carol J. Garcia, Designated Counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Abraham Butler appeals from a judgment of conviction dated February 29, 2008, which was entered by the Law Division after defendant was tried to a jury and found guilty of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); possession of CDS with intent to distribute the same, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(a)(1) (count two); and possession of CDS with intent to distribute the same on school property, N.J.S.A. 2C:35-7 (count three). The court merged counts two and three, and sentenced defendant to an aggregate term of ten years of incarceration, with a five-year period of parole ineligibility.

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

POINT I

[THE] TRIAL COURT FAILED IN ITS GATEKEEPER FUNCTION BY PERMITTING THE EXPERT TO TESTIFY STATE V. NESBITT, 185 N.J. 504, 515 (2006). ALLOWANCE OF THE REPORT INTO THE JURY ROOM COMPOUNDED THE ERROR (plain error)

POINT II

FAILURE TO PROVIDE ADEQUATE JURY CHARGES ON MATTERS OR ISSUES THAT ARE MATERIAL IS PRESUMED TO BE REVERSIBLE ERROR IN CRIMINAL PROSECUTIONS. THE RECORD DOES NOT INDICATE "JURY CHARGE" SUBMISSION AS REFERENCED BY [RULE] 2:6-1(D)

POINT III

DEFENDANT BUTLER IS ENTITLED TO A REMAND FOR RESENTENCING. SENTENCE IMPOSED ON COUNT I SHOULD MERGE WITH COUNT III

In addition, defendant has filed a supplemental pro se brief in which he raises the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY ERRONEOUS, PREJUDICIAL, AND INCOMPLETE INSTRUCTIONS ON THE LAW OF CONTROLLED DANGEROUS SUBSTANCES

POINT II

PETITIONER CONTENDS HIS SIXTH AMENDMENT RIGHTS WERE VIOLATED, AND HE WAS ENTITLED TO CONFRONT THE WITNESS WHO PERFORMED [THE] DRUG ANALYSIS AT TRIAL

POINT III

DEFENDANT ASSERTS THERE WAS SO MUCH PROSECUTORIAL MISCONDUCT AND HIS DISCOVERY RIGHTS WERE VIOLATED AND HE WAS DEPRIVED OF A FAIR TRIAL

POINT [IV]

IMPOSITION OF THE EXTENDED TERM SENTENCE SHOULD BE VACATED OR EITHER MODIFIED, AND DEFENDANT SHOULD BE RESENTENCED IN ACCORDANCE WITH THE NEW LAW.

For the reasons that follow, we affirm defendant's conviction and the sentence imposed on count three but remand for the entry of a corrected judgment of conviction merging counts one and three.

I.

At the trial of this matter, the State presented testimony by Officer Jose Dopazo (Dopazo), of the Newark Police Department, who stated that, at about 9:00 a.m., on March 2, 2007, he and Officer Marquez (Marquez) were on foot patrol in the area of Broad and Market Streets in Newark. The officers were walking westbound on Market Street when Dopazo observed a group of individuals "milling around one individual[,]" inside a pizzeria/donut shop at the corner of Broad and Market Streets.

The group was approximately seven feet from the glass door. Dopazo entered the shop. He testified that previously, there had been numerous arrests for narcotics offenses in the area. When Dopazo walked into the shop, he noticed movements of hands, and persons in the group noticed his presence. They were standing around a person Dopazo identified as defendant.

Dopazo further testified that, when they noticed the police officers, several persons began "to scatter away" and exited from a door at the far side of the shop. According to Dopazo, defendant had just received currency from an individual and had his back to the police officers. Dopazo believed that defendant became aware that police officers were present.

Defendant placed the money in his upper, right-hand pocket, closed a brown paper bag that he had in front of him, looked over his shoulder, and began to walk away from the officers. Dopazo stated that defendant then "crumpled up the brown paper bag and tossed [it] at a garbage can that was probably about" three or four feet away from him. The bag missed the garbage can and landed on an "eating shelf" over the garbage can.

Marquez detained defendant and Dopazo "immediately grabbed" the brown paper bag that defendant had tossed towards the garbage can. He opened the bag, which contained one large, "brick-shaped object" wrapped in paper. The object consisted of five bundles of ten glassine envelopes of heroin, which Dopazo said is known in street slang as a "brick" of heroin. An additional ten glassine envelopes containing heroin were found in the bag. Dopazo confiscated the heroin.

Defendant was arrested, handcuffed and transported to the police station. Defendant was found to be in possession of currency in both of his pants pockets. The currency consisted of bundles of folded bills, totaling $1171. Dopazo testified that the pizzeria/donut shop is within 1000 feet of a functioning school facility.

The State also presented testimony from Detective Reginald Holloway (Holloway), of the Essex County Sheriff's Office, who was qualified as an expert on street-level narcotics. Holloway stated that the packaging of drugs in glassine envelopes is indicative of drug distribution. He said that the area of Broad and Market Streets in Newark is known as "a high narcotic trafficking area" within the city.

Holloway also testified that the going rate for a glassine envelope of heroin is $10. Holloway stated that narcotics can be purchased "around the clock" and it is not uncommon for a person to purchase heroin in the middle of the morning. Holloway's direct testimony continued:

Q Detective, I'm going to present you with a hypothetical situation. And for the purposes of the hypothetical, I'm going to ask you to assume the following.

A Yes, ma'am.

Q Police officers are at a location on patrol. They see an individual, we will refer to as Subject A. Subject A is surrounded by a group of people and is holding a brown bag. Officers approach the group. Subject A is then seen holding the brown bag and putting currency in his pocket. Subject A notices the police officers and is seen throwing the brown bag toward a garbage can and missing it. Officers recover the bag and it contains [sixty] envelopes of heroin. Police also recovered $1100 from Subject A in the following denominations: one [hundred]-dollar bill; three [fifty]-dollar bills; [thirty-six twenty]-dollar bills; [eleven ten]-dollar bills, [thirteen] five-dollar bills; [twenty-six] one-dollar bills. Detective, based on these facts, can you render an opinion as to the recovered narcotics -

A Yes, I can, ma'am.

Q - in that hypothetical situation?

A Yes, I can, ma'am.

Q And what is your opinion?

A Ma'am, it's my opinion that Subject A possessed the recovered [sixty] packages of heroin with the intent to further distribute for monetary gain.

Defendant did not testify but called two witnesses, Lance Pesetsky (Lance) and his wife, Linda Pesetsky (Linda). Lance testified that defendant works for him from time to time. He said that in late February or early March, 2007, defendant asked him to lend him money so that he could buy a car. Lance told defendant that he was not able to lend him the money and he should ask his wife. Linda testified that in late February or early March 2007, she loaned defendant $1,200 in cash to purchase a vehicle. She said that, not long after, defendant repaid the loan.

The jury convicted defendant on all charges. He was sentenced on February 29, 2008. The court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f).

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

The court merged count two with count three and imposed a ten-year term of incarceration on count one, and a concurrent ten year term, with a five-year period of parole ineligibility on count three. The court ordered the suspension of defendant's driving privileges for six months, required defendant to submit a DNA sample and imposed appropriate fees and penalties.

II.

We turn first to defendant's argument that the court erred by permitting the State's expert to testify in this case. We disagree.

Expert testimony is permitted in cases involving drug possession and drug activities because such testimony is "reasonably required to assist the jury" in its consideration of "a subject that [is] within the specialized knowledge of the expert, and thus beyond the understanding of persons of average knowledge, education, and experience[.]" State v. Odom, 116 N.J. 65, 81 (1989). The expert may not express an opinion on defendant's guilt. Ibid.

Moreover, the expert's testimony should be in response to a hypothetical question that is "carefully phrased to refer only to the testimony and evidence adduced" concerning, among other things, the packaging and processing of the drugs, the quantities and concentrations of the narcotics, and the import of the surrounding circumstances. Id. at 181-82. Furthermore, the trial court must instruct the jurors on the weight that may be given to the expert's testimony, in order to emphasize that the ultimate decision as to the defendant's guilt rests with them. Id. at 82.

We are convinced that the trial court did not err by allowing the State to present expert testimony in this case. The record shows that here there was "a reasonable need for an expert's testimony[.]" State v. Nesbitt, 185 N.J. 504, 514 (2006). The matters as to which Holloway testified were "'beyond the ken of the average juror[.]'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).

Jurors are not expected to know about the manner in which heroin is packaged, and whether bundles of glassine envelopes of heroin are packaged for personal use or distribution. They also are not expected to know the street value of glassine envelopes of heroin. The expert's testimony in this case helped the jury "understand how drugs are packaged, priced, concealed, and sold consistent with distribution in high-crime areas." State v. Summers, 176 N.J. 306, 317 (2003).

Defendant additionally argues that the admission of the expert's reports into evidence compounded the error of allowing the expert to testify. Here, Holloway had produced an original report and a corrected report. One report referred to seventy glassine envelopes; the other referred to sixty glassine envelopes. The signature on one report was handwritten; on the other, the signature was typewritten. One document was the original; the other was a faxed copy.

The record shows that defendant's attorney questioned Holloway concerning the differences between the original and the faxed copy of the report. Defense counsel also moved to have both documents admitted into evidence, and the court granted that motion. During his summation, defendant's attorney noted that the jury would have the two reports in the jury room. He pointed out the discrepancies in the documents. He told the jury to consider these "various issues with regard to [the] reports" in determining whether the State had failed to meet its burden of proof.

Defendant asserts that moving the State's reports into evidence was "highly irregular" because the reports were unduly prejudicial. However, as we have explained, defense counsel sought the admission of the two reports in order to undermine the expert's credibility. In our view, the court's admission of the reports was not an error clearly capable of producing an unjust result. R. 2:10-2. Moreover, counsel's decision to seek admission of these documents was a reasonable strategic decision.

Defendant further argues that the court's alleged erroneous admission of the expert's reports into evidence also became evident during the jury's deliberations when the jury asked for a copy of the police report. The court refused the jury's request because the police report had not been admitted into evidence. Defendant contends that the jury was obviously "having problems" assessing the credibility of Officer Dopazo, who testified that he observed defendant receive money but omitted that fact from his report.

We note that, while it did not provide the jury with a copy of the police report, the court had the videotape of Dopazo's testimony played for the jury, thereby providing the jury with sufficient information to allow it to assess Dopazo's credibility. Moreover, the jury had been instructed that "the value or weight" of an expert's opinion "is dependent upon and is no stronger than the facts upon which it is based." The court also told the jury that

the probative value of the opinion will depend on whether from all of the evidence in the case you find that those facts are actually true. You may, in fact, determine from the evidence in the case that the facts that form the basis of the opinion are true or not true, or are true in part only. And in light of such findings, you decide what effect such determination has upon the weight to be given to the opinion of the expert.

Thus, the jury's inquiry concerning the police report does not establish that the court erred by admitting Holloway's reports into evidence. The jury was clearly instructed that it could give Holloway's opinions whatever weight it deemed appropriate and that would depend upon its findings as to the facts upon which those opinions were based.

III.

Next, defendant argues that the court erred by failing to instruct the jury that his "mere presence" on the scene where the narcotics were found was insufficient to sustain the charges in this case. Defense counsel did not seek this instruction.

The Model Jury Instruction on "mere presence" states in pertinent part that:

[m]ere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt, there must exist a community of purpose and actual participation in the crime committed.

[Model Jury Charge, (criminal), "Liability for Another's Conduct" (2009).]

We are convinced that the absence of this charge was not an error, let alone an error clearly capable of producing an unjust result. R. 2:10-2. In this case, defendant was not charged as an accomplice. He was charged with possession of the heroin. Moreover, the court instructed the jury that

[p]ossession cannot be merely passing control, fleeting or uncertain in its nature. In other words, to possess an item, one must knowingly procure or receive an item or be aware of control therefor[e] for a sufficient period of time to have been able to relinquish control of it if [he] chose to do so. The State must prove beyond a reasonable doubt that a possessor [acted] knowingly in possessing the item.

The court also charged the jury that, "[c]onstructive possession means possession in which the possessor does not physically have the item on [his or her] person, but is aware that the item is present and is able to exercise intentional control or dominion over it."

We are satisfied that the instructions were sufficient to guide the jury in determining whether the State had proven, beyond a reasonable doubt, that defendant possessed the heroin in the discarded brown paper bag. Viewed in its entirety, the charge left no doubt that defendant's "mere presence" in the pizzeria/donut shop was not sufficient to find him guilty of possessing the heroin and the jury had to find that defendant either personally possessed or was in constructive possession of the heroin.

IV.

Defendant also challenges his sentence. He argues that count one, which charged possession of CDS, should have merged with count three, which charged possession of CDS with intent to distribute the same within 1000 feet of school property. The State concedes that the court should have merged these two counts. We agree.

In addition, defendant argues that his sentence is excessive. As we pointed out previously, the court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f). Because defendant was convicted of third-degree offenses, he was subject to an extended-term sentence of between five and ten years. N.J.S.A. 2C:43-7(a)(4). The court stated that, in light of defendant's prior criminal record, it was "constrained" to impose the maximum sentence.

The court noted that defendant's criminal conduct began in 1982 when he was eighteen years old and had continued since that time, except for the periods he had been incarcerated. The court pointed out that defendant had been arrested thirty-three times as an adult, and had seven prior indictable convictions, including convictions for robbery and CDS-related offenses. Defendant had served six State prison sentences, and had twice violated parole conditions. Since being paroled in February 2005, defendant had been arrested nine times, all but one for CDS-related offenses. The court found that imposition of the maximum sentence was warranted in fact because defendant's prior sentences failed to deter him from further criminal conduct. The record supports the court's findings.

We are satisfied that the sentence imposed here on count three 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 for entry of a corrected judgment of conviction merging counts one and three.

(continued)

(continued)

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A-2835-08T4

June 10, 2010