STATE OF NEW JERSEY v. DARRYL E. BROOKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1038-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRYL E. BROOKS,

Defendant-Appellant.

_________________________________

December 12, 2011

Submitted: October 19, 2011 - Decided:

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-09-1316.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Darryl Brooks was convicted of several drug offenses. On appeal, he challenges various aspects of his trial, asserting unduly suggestive identification evidence, inappropriate expert testimony, inadmissible evidence of prior crimes, and incorrect jury instructions. He also challenges his sentence as excessive. We affirm the conviction but remand for resentencing.

On September 6, 2007, a Burlington County Grand Jury indicted defendant (2007-09-1316) on charges of third-degree distribution of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count one); third-degree possession of cocaine, a CDS, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of cocaine, a CDS, N.J.S.A. 2C:35-10(a)(1) (count three).

Following a three-day trial, defendant was convicted by a jury of all counts. Defendant was mandatorily extended term eligible as a repeat drug offender, N.J.S.A. 2C:43-6(f), and in March 2009, received an eight-year custodial term with a four-year period of parole ineligibility.1 The court also suspended defendant's driver's license for six months and imposed mandatory fines and penalties.

I.

The following testimony and evidence was presented at trial. Detective Christy Jarvis of the Burlington County Prosecutor's Office Narcotics Task Force testified she met defendant, who introduced himself as "Dante," while working undercover on September 21, 2006. She related the conversation she had with defendant, in which he gave her a telephone number, advised the detective she could reach him, and he would "hook [her] up." Over defendant's objection, the court permitted the detective to testify as to what she understood defendant to have meant by that expression, which was that defendant "would be able to hook [her] up in the future for future CDS purposes[;] [she] could call [defendant] and he would be able to provide [her] with that."

On September 27, 2006, Detective Jarvis placed a call, which was recorded and played for the jury, to the number defendant had provided her, and arranged to purchase drugs from him. At his request, she met him at a CVS store in Mount Laurel. Defendant got into the front seat of the detective's vehicle, where he sold her four bags, .34 grams, of crack cocaine, which he kept in his right shoe, for forty dollars. The interaction was videotaped and shown to the jury. The bags sold to Detective Jarvis were tested to identify the substance they contained, but were not tested for fingerprints or DNA evidence.

Detective Jarvis further testified that about seven minutes after the transaction, Sergeant Scott Wallace, a Maple Shade detective, who was working on her surveillance team that day, showed her one black and white photograph of a man she immediately recognized as "Darryl Brooks . . . the person that had just sold [her] CDS." Sergeant Wallace testified he procured this photograph from an official government database, having known defendant from prior contacts in the community. He also testified he had the opportunity to observe defendant while conducting stationary surveillance approximately 150 feet from Detective Jarvis and defendant during the transaction. After the photo identification, both detectives signed their names, and placed the date and time on the back of the photograph.

Lieutenant Daniel Leon of the Burlington County Prosecutor's Office Narcotics Task Force, who was part of the surveillance team with Sergeant Wallace during defendant's transaction with Detective Jarvis, also testified regarding his observations of defendant on September 21 and 27, 2006. He additionally knew defendant to go by the name "Dante." All three officers identified defendant in court as the man who interacted with Detective Jarvis on September 27, 2006.

Defendant was arrested in January 2007, four months after the transaction. Detective Jarvis testified the delay was common practice for narcotics investigations because of safety concerns for her as an undercover officer and because of the ongoing nature of the undercover operation. Moreover, she and Lieutenant Leon explained that as a result of defendant traveling to the CVS by bicycle, the surveillance team lost him and was unable to follow him upon his departure from the scene.

Defendant did not testify and presented no witnesses on his behalf. Following his conviction, this appeal ensued.

On appeal, defendant argues:

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. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not raised below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED A HIGHLY PREJUDICIAL EXPERT WITNESS OPINION. (Partially raised below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION.

A. OTHER CRIME EVIDENCE WAS IMPROPERLY ADMITTED. (Partially raised below)

B. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION. (Not raised below)

POINT IV

THE INSTRUCTION O[N] THE LAW OF ATTEMPT WAS INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL. (Not raised below)

A. THE INSTRUCTION LACKED GUIDANCE ON THE LAW OF ATTEMPTED DISTRIBUTION.

B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND THAT THE DEFENDANT ATTEMPTED DISTRIBUTION KNOWINGLY.

POINT V

THE SENTENCE IS EXCESSIVE. (Not raised below)

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

C. THE CONVICTION FOR POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE SHOULD MERGE WITH THE CONVICTION FOR DISTRIBUTION OF CDS.

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments. We affirm defendant's conviction. For the most part, we affirm defendant's sentence; however, we remand for resentencing to delete one of the two mandatory extended terms, though concurrent, and for correction of the judgment of conviction (JOC).

II.

Defendant argues his photographic identification should be suppressed as overly suggestive and violative of his due process rights because Detective Jarvis was only shown one photograph of a suspect a mere seven minutes after the CDS transaction. He claims the obvious purpose of this procedure was to obtain out-of-court identification evidence and emphasizes its unduly suggestive nature as there was no line up and no photographic array. Moreover, defendant urges that there was no fingerprint, DNA or other scientific evidence corroborating the identification to establish its reliability, nobody followed the drug seller home to corroborate his identity, and no records were produced to corroborate that the phone number to which Detective Jarvis called was registered to defendant, so reliability was never established. Accordingly, under these circumstances, defendant contends the identification evidence should be suppressed.

Because this issue is raised for the first time on appeal, we review the evidence under the plain error standard. Reversal is not appropriate unless the error is "clearly capable of producing an unjust result." R. 2:10-2. Such error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We discern no error in this instance and are satisfied that, based on the totality of the circumstances, Detective Jarvis' photographic identification of defendant was properly admitted. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967) ("[A] claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.").

The New Jersey Supreme Court has adopted a two-step analysis for determining a violation of due process of law in the context of unduly suggestive identifications, called the Manson/Madison test.2 The court must first decide if the conduct was impermissibly suggestive, and if so, whether such procedure resulted in a "substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 239 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

The court next focuses on reliability by looking at the totality of the circumstances. Madison, supra, 109 N.J. 258; Stovall, supra, 388 U.S. at 302, 87 S. Ct. at 1972, 18 L. Ed. 2d at 1206. See also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972) ("[T]he central question [is], whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive."). Specifically regarding a claim of overly suggestive identification evidence, the Supreme Court of the United States dictated that courts should consider:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

[Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).]

Although the Court in Madison warned, "the danger [of improper identification] will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw," supra, 109 N.J. at 231 (quoting Simmons, supra, 390 U.S. at 383, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253), this out-of-court identification will not necessarily be excluded. State v. Adams, 194 N.J. 186, 205-06 (2008); State v. Matlack, 49 N.J. 491, 498, certif. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). Rather, it will be considered in terms of its effect on the reliability of the identification. Ibid.

The present case is very similar to the facts in Manson. There, an undercover trooper and an informant went to an apartment to purchase drugs from a known narcotics dealer. Manson, supra, 432 U.S. at 99-100, 97 S. Ct. at 2245, 53 L. Ed. 2d at 145. After purchasing drugs from the defendant, an interaction that lasted less than ten minutes, the trooper described the seller to another officer. Id. at 101, 97 S. Ct. at 2246, 53 L. Ed. 2d at 145-46. Based on this description, the officer obtained one photograph and left it on the trooper's desk, and upon his return two days later, the trooper identified the person in the photograph as the person from whom he had purchased narcotics. Ibid. This photograph was used to identify the defendant at trial and was further admitted into evidence without objection from the defense. Id. at 102, 97 S. Ct. at 2247, 53 L. Ed. 2d at 146.

Considering the above listed factors, the Supreme Court found this identification, while perhaps overly suggestive, did not create a "substantial likelihood of irreparable misidentification." Id. at 116, 97 S. Ct. at 2254, 53 L. Ed. at 155 (quoting Simmons, supra, 390 U.S. at 384, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253). Despite the fact that the trooper was only able to see the defendant for a few minutes from a dark doorway area, the trooper's close proximity to the defendant, his ability to specifically and accurately describe the defendant, his high degree of attention, and his level of certainty demonstrated an ability to make an accurate identification that outweighed any corruption from only viewing a single photograph. Id. at 114-16, 97 S. Ct. at 2253-54, 53 L. Ed. 2d at 154-55.

Similarly, in State v. Adams, the New Jersey Supreme Court held that even though showing Polaroids of only the defendants to victims of a robbery was unduly suggestive, there was sufficient reliability in such identifications to overcome this suggestive nature and outweigh any likelihood of irreparable misrepresentation. Supra, 194 N.J. at 204-06. There, the fact that the defendants were unmasked, viewed by the witnesses from short distances, and were identified by the photographs within two days of the incident, all supported the reliability of the photograph identifications. Ibid.

Thus, standing alone, simply showing one photograph of defendant to Detective Jarvis was likely an unduly suggestive identification. However, applying the Manson/Madison factors to this case, there is not a substantial likelihood of irreparable misidentification. Manson, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155. Detective Jarvis' ability to observe defendant from a close distance, with acute attention, and so close in time to viewing the photograph, weighs heavily in favor of reliability.

First, Jarvis had ample time to view defendant at the time of the crime as she purchased the CDS directly from defendant and engaged in conversation with him on an afternoon she testified to be clear and sunny. Moreover, this was not Detective Jarvis' first encounter with defendant as she had met him six days prior to the transaction when he first offered her his phone number. Detective Jarvis testified she had the opportunity at the earlier date to observe defendant's facial features, clothing, mannerisms, and walk. As a trained narcotics detective who had served as an undercover officer more than 100 times, Detective Jarvis possessed an enhanced ability to pay close attention to details. The detective was also able to clearly describe the clothing defendant wore during their interaction, which was corroborated by the surveillance photographs taken of the incident.

Furthermore, Detective Jarvis was shown the photograph only seven minutes after her interaction with defendant in which she testified she immediately recognized it to be the person who had just sold her drugs. Adding to this reliability is the corroboration from both Sergeant Wallace and Lieutenant Leon who were able to identify defendant in court as the man they observed from their surveillance duty interacting with Detective Jarvis on September 27, 2006.

Defendant next argues the court erred in allowing Detective Jarvis to render an expert witness opinion about narcotics distribution. He claims the detective did not qualify as an expert witness, and disputes her interpretation of the phrase "hook up" as relating to selling drugs, arguing laypersons would understand such language as meaning that defendant wanted to get together with her. We disagree.

First, defendant misstates the expression in his argument, as Detective Jarvis did not testify that defendant told her to call the phone number at any time because he wanted to "hook up" but, rather, so he would "hook me up." (emphasis added). The court overruled defendant's objection, allowing the detective to testify as to what she understood the phrase to mean, but not to speculate as to what defendant actually intended. Accordingly, the detective testified solely as to her personal understanding of the meaning of the statement, rather than her expert opinion concerning the transaction. See N.J.R.E. 701 (stating that a lay witness may testify in the form of opinion provided it is rationally based on his or her perception and will assist the trier of fact in understanding a fact in issue). The testimony was relevant as it was elicited to explain why the detective proceeded to follow up and make a purchase from defendant. As Detective Jarvis personally purchased the CDS from defendant, and it was to her the phrase "hook [her] up" was directed, we discern no abuse of discretion by the court in permitting the detective to testify as to what she understood the phrase to mean. See State v. Marrero, 148 N.J. 469, 504-05 (1997) (recognizing that substantial deference is given to a trial judge's discretion in evidentiary rulings).

Defendant next argues as violative of due process, the admission of other-crimes evidence, specifically that defendant had sold drugs on other occasions, without a proper limiting instruction. The specific testimony now objected to is Detective Jarvis' explanation as to why defendant was not arrested until four months after her interaction with him. The detective explained the custom of the narcotics department in delaying sixty to ninety days after the undercover transaction to arrest the seller as follows:

Q: Explain to the jury why Darryl Brooks [was] not arrested until January 2007?

A: It is common practice for our narcotics investigations that obviously we do not arrest people on site, obviously there's exceptions to that but for the sole purpose before as like I said me being an undercover officer this will not be the first or the last purchase that I will make[.] . . . Typically, we wait approximately I would say anywhere between 60, 90 days before we go ahead and pick them up later down the road. Usually most people as a way to preserve our identity most people can't remember back 60, 90 days ago who specifically they sold an amount of drugs to especially if they're somebody that deals with more than one person on a regular basis, they're not going to be able to pinpoint exactly this specific day, this specific time[.]

She continued by stating the delay helped to preserve undercover office identity and safety.

According to defendant, this testimony created an "unmistakable reasonable inference" that he violated drug laws on numerous occasions. He urges that there could be no other reason why the detective referred to other drug deals when explaining the reason for the delay in making an arrest.

Defendant contends the prejudice was exacerbated when the prosecutor elicited testimony from the two other narcotics officers, Sergeant Wallace and Lieutenant Leon, over his objection, that they had prior contacts with him. He argues this evidence created a high potential for jury prejudice.

We are not persuaded by either of defendant's arguments. Detective Jarvis' testimony was not offered to prove that defendant himself had actually engaged in other drug deals or to create an inference of defendant's previous crimes. To the extent, however, the undercover officer's explanation implied that defendant was engaged in numerous drug transactions between the distribution in this case and the day of arrest, we are not convinced this testimony constituted plain error warranting reversal of defendant's conviction. The comment was general and fleeting and, when taken in context, focused the jury's attention on routine narcotics department customs rather than the activities of defendant.

We also discern no abuse of discretion by the court in overruling defendant's objection to Sergeant Wallace's prior contacts testimony. See State v. Gibson, 92 N.J. Super. 397, 401 (App. Div. 1966) (holding evidence that an undercover agent had previously purchased narcotics from a defendant was admissible to establish identity). The court found the testimony pertinent to the issue of identification but severely restricted it to mitigate potential prejudice to defendant. The court limited the officers' testimony to an acknowledgement of the single general question that they had more than one contact with defendant prior to September 2l, 2006, and required the prosecutor to rephrase the questioning to emphasize Sergeant Wallace's previous ability to observe defendant, noting his facial features, physical characteristics and appearance.

Defendant did not request a limiting instruction regarding any of this evidence. The trial court gave an appropriate, detailed instruction on identification that accorded with the requirements of State v. Green, 86 N.J. 281, 291-93 (1981).

Plain error concerning a jury charge has been defined as "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), certif. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Not any possibility of an unjust result will suffice; rather, the error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Defendant's newly-minted challenges to the court's instruction on the law of attempt set forth in Point IV are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

We turn now to defendant's challenge to his sentence. The court found aggravating factors three, the risk defendant will commit further offenses, six, the extent of defendant's prior criminal record, and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(3), (6), (9), and no mitigating factors, N.J.S.A. 2C:44-1(b). The court merged the third count with the second count and imposed concurrent extended terms of eight years with four years of parole ineligibility on counts one and two.

We are not convinced the court abused its discretion in declining to merge defendant's conviction for possession of CDS with intent to distribute and his conviction for distribution of CDS. Distribution of CDS and possession of CDS with intent to distribute are two distinct crimes. State v. Jester, 68 N.J. 87, 91 (1975). Distribution is instantaneous, beginning and ending at the time of sale, while possession with intent to distribute begins once the defendant obtained the substance and "[c]ould have ended with a transfer to not just [the undercover officer] but to anyone else." Ibid. Here, defendant provided Detective Jarvis with his telephone number and told her he could "hook [her] up." After the transaction occurred, defendant also stated he would be available if she called him again. These aspects of the interaction go beyond defendant simply transferring the CDS to the undercover officer and are what encompass the difference between distribution and possession with intent to distribute.

We also are not persuaded that defendant's sentence was excessive. We discern no error by the court in declining to find mitigating factors two, that defendant did not contemplate that his conduct would cause or threaten serious harm, and eleven, that imprisonment would entail excessive hardship to defendant's dependents. N.J.S.A. 2C:44-1(b)(2), (11). Moreover, the imposition of an extended-term sentence on one of the counts was mandated by N.J.S.A. 2C:43-6(f) as a repeat drug offender, subjecting defendant to potential exposure of up to ten years in prison for that conviction.

However, although not raised by defendant, we note his sentence was illegal because the court imposed two mandatory extended terms, even though they were concurrent. See N.J.S.A. 2C:44-5(a)(2) ("When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . [n]ot more than one sentence for an extended term shall be imposed."). Nevertheless, the court followed the correct statutory sentencing guidelines in imposing an eight-year extended term with a four-year period of parole ineligibility on one of the counts, and that sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). Although the second extended term was concurrent, it must be vacated as illegal and defendant must be resentenced within the third-degree range. Additionally, the JOC must be corrected to reflect that a four-year, not a four-and-one-half-year term of parole ineligibility was imposed on the extended term sentence.

The conviction is affirmed and the matter is remanded for resentencing in accordance with this opinion.

1 The State concedes the judgment of conviction incorrectly reflects a four-and-one-half-year period of parole ineligibility, which should be corrected on remand.

2 The New Jersey Supreme Court has recently created a new four-step framework expanding upon the Manson factors to allow judges to consider all relevant factors that affect credibility. State v. Henderson, 208 N.J. 208, 288-89 (2011). The Henderson case changes the analysis of identification evidence but expressly limits its holding to future cases only, to take effect thirty days from the date of approval of new model jury charges on eyewitness identifications. Id. at 302. Accordingly, we perform the analysis in the present case under the Manson/Madison test.