STATE OF NEW JERSEY v. EUGENE DOSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6336-06T46336-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE DOSS,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 4, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1396.

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

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

PER CURIAM

Defendant appeals from his sentence and convictions for possession of a controlled dangerous substance with intent to distribute within a school zone and within five hundred feet of a public park and hindering apprehension and prosecution. We affirm.

Defendant caught the attention of police officers when they observed what they believed to be a robbery in progress. Officers Robert Cifrodelli and Michael Kurinzi of the Elizabeth Police Department were on patrol, in plain clothes and an unmarked vehicle, when they saw Myriam Figueroa, sitting astride a bicycle, with her hands up and shaking her head, as if signifying, "No." Defendant was standing directly in front of her with his hands in front of him, holding a dark object in his hand. Officer Cifrodelli drove right at defendant and both officers jumped out. At that point, Officer Cifrodelli saw that the object in defendant's hand was a gray cloth bag and observed him hand the bag to Figueroa.

Officer Cifrodelli took defendant, who was acting extremely nervous, away from Figueroa. Defendant was unable to produce any identification and gave the officers several false names: Eugene Julian, Julian Doss and Eugene Dobb. Officer Cifrodelli placed him in the patrol car for security reasons until he could verify his identity through the computer.

Figueroa approached the passenger side front window of the police vehicle. Officer Cifrodelli described her as nervous and fidgety. He asked her where the gray bag was. Figueroa denied having any bag. However, Officer Cifrodelli then observed her reaching up into her armpit area, turning her body away from the officers. Officer Cifrodelli heard the sound of glass hitting and scraping the ground as Figueroa attempted to kick the items under the police vehicle. Not wishing to alert Figueroa to their observations, the officers told her to get her bicycle. As she did, the officers got out of the car and retrieved the gray cloth pouch and twenty-six vials of cocaine on the ground under their car.

Defendant and Figueroa were arrested and taken to police headquarters. Defendant had $118 in his possession and Figueroa had a makeshift crack pipe.

Defendant was indicted on charges of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); possession of a controlled dangerous substance within 1,000 feet of a school zone with intent to distribute, N.J.S.A. 2C:35-7 (count three); possession of a controlled dangerous substance within five hundred feet of a public park with intent to distribute, N.J.S.A. 2C:35-7.1 (count four); two counts of hindering apprehension or prosecution by giving false information to a law enforcement officer, N.J.S.A. 2C:29-3(b)(4) (counts five and six); and witness tampering, N.J.S.A. 2C:28-5 (count seven).

Defendant's motion to suppress the controlled dangerous substance seized was denied.

Figueroa pled guilty to a charge of possession of controlled dangerous substance pursuant to a plea agreement in which she agreed to cooperate and testify at defendant's trial and, in exchange, received a sentence of three years' probation.

At trial, Figueroa testified that on the day of their arrest defendant called to her and offered her some vials of cocaine to sell. Figueroa acknowledged that she was addicted to drugs at the time and had sold drugs for others in the past. As she was considering his proposal, defendant took a bag from his waistband and offered to let her check the drugs. She was holding the drugs in her hands when defendant told her to put the drugs away because the "street is hot." She understood this to mean that there were police officers present on the street. She concealed the drugs in her bra and, immediately thereafter, saw defendant's eyes widen as the police arrived. Figueroa testified that she was scared and, when she saw defendant in the police car, she dropped the bag containing the drugs to the ground and kicked them under the car, where they were later recovered by the police.

Figueroa also testified that when she was placed in the patrol vehicle with defendant, he repeated to her in a low voice, "that's yours, that's yours." Approximately two weeks after she was released from jail, defendant's brother came to Figueroa and said that defendant wanted to meet with her. At the instruction of the assistant prosecutor, she did not meet with defendant. However, defendant later approached her on the street and offered to pay her $1000 if she changed her testimony. She asked him to leave her alone. Defendant then called to her boyfriend and spoke with him privately. After their conversation, her boyfriend asked Figueroa if she was going to change her testimony. Defendant then said to her, "[I]f you don't change your testimony, something is gonna happen to you or your boyfriend. So be careful."

Defendant testified that he did not know Figueroa prior to the day they were arrested. He said that he stopped on the street in response to her request for a cigarette. According to defendant, when the police arrived at the area, there were a number of people in the vicinity and the police stated that everyone could leave except him and Figueroa. He testified that he gave his correct name to the officer upon request. Defendant denied having any drugs in his possession or handing anything to Figueroa. He testified that the vials of cocaine fell to the ground from Figueroa's person as the officers placed her against a car prior to her arrest. Defendant denied speaking to Figueroa after the day of their arrest. Defendant's brother, Andre Doss, also denied ever attempting to set up a meeting between Figueroa and defendant.

Detective Justin Marranca of the Union County Prosecutor's Office testified as an expert on narcotics and narcotics distribution. After being provided with a hypothetical that reflected facts in evidence in the case, Detective Marranca provided the following testimony without objection:

Q. . . . Based upon those facts in the hypothetical that I just gave you do you have an opinion as to whether the drugs, the 26 vials of cocaine, are possessed for personal use or possessed with the intent to distribute?

A. Possessed with the intent to distribute.

Detective Marranca then testified that his opinion was based upon the geographical area, the quantity of the drugs, the manner in which they were packaged, the location of the possession and the quantity of money found on defendant.

Defendant was convicted on all counts except count seven, which charged him with witness tampering. At sentencing, the trial court merged the drug offenses in counts one, two and three into count four and merged the two counts for hindering apprehension and prosecution into count five. Defendant was sentenced to a custodial term of seven years with a three year period of parole ineligibility on count four and a concurrent term of four years on count five. The court recommended that the defendant serve his sentence at the youth correctional facility pursuant to State v. McBride, 66 N.J. 577 (1975). In addition, defendant was ordered to pay the appropriate penalties and fees and to forfeit $115.

Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED BY FAILING TO APPROPRIATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF THE CO-DEFENDANT'S GUILTY PLEA. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

A. FACTUAL INTRODUCTION.

B. ONCE THE POLICE LEARNED THE REASON FOR THEIR INITIAL INVESTIGATIVE DETENTION OF THE DEFENDANT AND CO-DEFENDANT INVOLVING A POSSIBLE ROBBERY IN PROGRESS WAS NOT ACCURATE, NO LEGITIMATE BASIS EXISTED TO CONTINUE WITH THEIR INVESTIGATIVE DETENTION OF EITHER INDIVIDUAL, RENDERING THE FRUITS OF THEIR CONTINUING DETENTION AND THE ENSUING QUESTIONING OF THEM SUBJECT TO BE SUPPRESSED.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE EXPERT TESTIMONY ELICITED FROM DETECTIVE JUSTIN MARRANCA WHO TESTIFIED TO THE ULTIMATE ISSUE OF THE DEFENDANT'S GUILT REGARDING THE CHARGES OF POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS, POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN A SCHOOL ZONE AND POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN 500 FEET OF A PUBLIC PARK, THEREBY INTRUDING UPON THE JURY'S EXCLUSIVE PROVINCE TO DETERMINE GUILT OR INNOCENCE. (NOT RAISED BELOW).

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

After carefully considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the brief comments that follow.

Defendant argues that it was plain error for the trial court to fail to give a limiting instruction that advised the jury that Figueroa's guilty plea was only admissible for purposes of assessing her credibility. The trial court did not give such a limiting instruction but did charge the jury that Figueroa's prior conviction was admissible for that limited purpose and gave the general charge on credibility. Pursuant to Rule 1:7-2, defendant's failure to object constitutes a waiver of his right to challenge that instruction on appeal. However, mindful of the principles that "appropriate and proper jury charges are essential to a fair trial," State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J. 409, 422 (1997), we review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

The danger posed by failing to give such an instruction is that the jury will consider a co-defendant's admission of guilt as substantive evidence of the defendant's guilt. "Although a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt." State v. Adams, 194 N.J. 186, 208 (2008). However, the failure to give such an instruction does not necessarily equate with plain error. See ibid. The circumstances deemed relevant by the Supreme Court in finding no plain error are strikingly similar to the facts here. As in Adams, defense counsel thoroughly cross-examined Figueroa and vigorously argued in summation that the jury should reject her testimony as not credible. Figueroa's actual guilt was a major theme in the defense argument that the drugs were hers to sell and that she had attempted to sell drugs to defendant before their arrest. As in Adams, Figueroa's testimony "independently established [her] guilt of the crime and, therefore, [her] guilty plea added little weight to that testimony." Id. at 209. In both cases, the trial court gave the standard charge on credibility. See ibid. Under these circumstances, we, too, are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." Ibid. (citation omitted).

Defendant argues that it was plain error for Detective Marranca to give his opinion that the drugs here were possessed with the intent to distribute. An expert is permitted to give an opinion as to intent or purpose regarding drug evidence "as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge[.]" State v. Reeds, 197 N.J. 280, 291 (2009) (quoting State v. Odom, 116 N.J. 65, 78-79 (1989)). Detective Marranca's opinion fell within permissible bounds because it was confined to an opinion regarding the conduct of possessing these drugs under these circumstances and did not contain any opinion regarding defendant's guilt. Even if improper expert testimony is elicited, a reversal of defendant's conviction is warranted only if that testimony was sufficiently prejudicial to have the capacity to bring about an unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006); State v. Thompson, 405 N.J. Super. 76, 81 (App. Div.), certif. denied, 199 N.J. 133 (2009). Such capacity was plainly lacking here since the defense was not that defendant lacked an intent to distribute but rather, that he never possessed the drugs.

Based upon the factual findings made by the motion judge, State v. Elders, 192 N.J. 224, 243 (2007), we conclude that the motion to suppress was properly denied for the reasons set forth by the motion judge. We also find no error in the sentence that was imposed.

 
Affirmed.

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A-6336-06T4

January 19, 2010