STATE OF NEW JERSEY v. EMAN AMIR HASSENBEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3073-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMAN AMIR HASSENBEY, a/k/a

EMOND HASSENBAY,

Defendant-Appellant.

________________________________________________________________

May 6, 2011

Submitted April 12, 2011 - Decided

Before Judges Carchman and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1069.

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

Paula T. Dow, Attorney General, attorney for respondent (Emily R. Anderson, Special Deputy Attorney General, on the brief).

PER CURIAM

Following a jury trial, defendant Eman Hassenbey was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); second-degree possession of cocaine and heroin with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1); and second-degree distribution of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1.1 After appropriate mergers, the judge sentenced defendant to an aggregate sentence of eight-years imprisonment with a three-year period of parole ineligibility. Defendant appeals, and we affirm.

These are the facts adduced at trial. On the afternoon of September 15, 2007, Detective Daniel Statin of the Plainfield Police Department was conducting surveillance at Elmwood Gardens, a public housing complex. At approximately 2:00 p.m., he observed a female, later identified as Monique Harris, approaching various individuals in the area. Statin also saw defendant sitting on a nearby bench. Statin's reconnaissance revealed a pattern: Harris would briefly speak with different individuals, then remove and distribute a small item secreted within her bra, collecting currency in exchange. The purchaser would depart and Harris would hand defendant her receipts.

Statin suspected that Harris was dealing drugs for defendant, and observed the duo depart in a Mazda. Statin advised a back-up officer, Detective Michael Black, to intercept the vehicle. Black stopped the Mazda and arrested both occupants. Harris turned over "a quantity of drugs" and the police recovered $14 from Harris and two stacks of money from defendant totaling $420.

At a separate hearing, Harris pled guilty and indicated that she was selling drugs with defendant. Later, at defendant's trial, Harris confirmed that she was dealing drugs, and had pled guilty to possession and distribution of controlled substances. However, Harris also recanted, indicating that she had lied under oath at her plea hearing, and defendant was not involved.

At the close of trial, several exhibits were admitted as evidence, including a lab report, which detailed the substances recovered when defendant was arrested. The report was admitted into evidence, and the jurors were given the report to aid them in their deliberations. Apparently unbeknownst to the parties and the court, the report was double-sided, and the reverse side indicated that several new, unused plastic baggies were also found on defendant's person.

After commencing their deliberations, the jury returned with the following question: "Numerous new and unused plastic bags. Can we consider this in our deliberations? How come not . . . presented or discussed as evidence?" Recognizing the error, the trial judge conferred with counsel. Defense counsel suggested that a corrected version of the exhibit could be substituted. Both the prosecutor and judge agreed, and the exhibit was substituted with the following instructions:

That additional item that was attached to the lab report should not have been included because there was no testimony about it and therefore, you cannot consider that aspect of it. We're going to resubmit the lab report to you in the way it should have been. So you will only consider what is currently on the lab report. And the lab report is submitted to you as an aid to assist you in making your determination as to whether the items that were marked as S-5 are cocaine or heroin.

At sentencing, defendant moved for a new trial based upon the substitution. The trial court denied the motion. This appeal followed.

On appeal, defendant raises the following issues:

POINT ONE

COUNSEL FOR THE STATE IMPROPERLY COMMENTED UPON FACTS NOT IN EVIDENCE AND IMPROPERLY IMPLIED THAT THE CODEFENDANT'S TESTIMONY WAS UNRELIABLE, BASED UPON HIS ASSERTION THAT THE WITNESS WAS INTIMIDATED BY THE DEFENDANT AND WOULD BE AFRAID TO RETURN TO HER HOME HAVING TESTIFIED FOR THE STATE

POINT TWO

THE DEFENDANT'S CONVICTION MUST BE REVERSED AS THE JURY WAS IMPROPERLY SHOWN EVIDENCE NOT ADMITTED AT TRIAL AND PREJUDICIAL TO THE DEFENDANT

POINT THREE

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

Defendant first argues that the prosecutor's closing argument improperly "cast negative aspersions" on Harris's testimony. While summarizing Harris's testimony, the prosecutor made the following comments:

For the first time when she came in here, and she told you she doesn't want to be here, and I understand she doesn't want to be here. And I think everybody can understand she wouldn't want to be here. She sat in court and looked at him. And think about what someone has to go through when they sit here and they look at a defendant in the eye and have to point him out knowing there's consequences to that.

It's probably not easy and it's understandable. I'm not saying it's the right thing to do, but it's understandable. You've got to sit and point a finger and accuse somebody of something in front of them. Because when she pled she said he wasn't here. It was just her, the Judge, the Prosecutor. It had nothing to do with him at that time, he wasn't around.

Think about some day she's got to go back to Plainfield, okay. Does a person want to go back to Plainfield in their home known as a rat or a snitch? Think about it in common sense. I'm not saying there's anything to do with this man would do anything to her. There's no way, shape or form am I saying that. But she's got to go back with a label. She's got that in her mind. Think about that in common realistic practice in your life.

Generally, "[p]rosecutors are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor." State v. Jenewicz, 193 N.J. 440, 471 (2008) (citations and internal quotation marks omitted). "Nevertheless, there is a fine line that separates forceful from impermissible closing argument. Thus, a prosecutor must refrain from improper methods that result in wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." Ibid.

When defendant fails "to make any contemporaneous objection to th[e] summation argument," such failure "render[s] it 'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002) (internal quotations omitted)). A failure to object to the "remarks now claimed to constitute prosecutorial misconduct" requires that "defendant must demonstrate plain error to prevail." State v. Papasavvas, 163 N.J. 565, 626 (2000).

"To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Harris, 181 N.J. 391, 495 (2004) (citation, internal quotation marks and editing marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Here, the prosecutor's comments did not substantially prejudice defendant's fundamental rights. Defendant argues that the comments had a "clear implication" which caused the jury to improperly speculate that defendant had intimidated Harris. Considering the totality of the circumstances, the prosecutor's comments are more concerned with "snitching" and the stigma attached to identifying a fellow drug dealer in court. The witness recanted and admitted to lying under oath. The prosecutor's attempt to explain that inconsistency, especially with regard to a State witness, is not "clearly and unmistakably improper." We find no error here.

Additionally, even supposing the comments were made in error, the overwhelming proof of defendant's guilt precludes any finding of plain error. A plain error is one which is "clearly capable of producing an unjust result," R. 2:10-2, and in this case, defendant has failed to "raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached," State v. Barden, 195 N.J. 375, 394 (2008) (internal quotation marks omitted).

Defendant also argues that the inadvertent disclosure of the reverse side of the lab report to the jury was prejudicial, and warrants a new trial. We disagree.

At the outset, we note that the jury was attentive and understood concepts such as admissibility and relevance of evidence. The jury recognized that the reverse side of the exhibit had not been introduced into evidence, and promptly inquired as to its admissibility. Considering the jury's place as a cornerstone of our system of justice, their actions here bespeak a diligence that must be acknowledged.

As to the merits of defendant's arguments, we note that defendant's counsel proposed the curative instruction that the judge gave to the jury. In addition, we presume that the jury heeded the judge's instruction that the "report should not have been included because there was no testimony about it and therefore, you cannot consider that aspect of it." "One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999)).

Upon a motion for a new trial under Rule 3:20-1, the trial court "shall not . . . set aside the verdict of the jury as a against the weight of the evidence unless . . . it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In this case, the trial judge correctly denied the motion because the jury "dutifully indicated they could follow th[e] instruction" and found that "the jury properly used the lab report in the redacted form to make its decision."

Finally, defendant asserts that the sentence imposed was manifestly excessive and unjust. We disagree.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" State v. Blackmon, 202 N.J. 283, 296 (2010) (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Our review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. Blackmon, supra, 202 N.J. at 297 (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). In conducting the review of any sentence, we consider whether the trial judge has made findings of fact that are grounded in competent, reasonably credible evidence and whether "the factfinder [has] appl[ied] correct legal principles in exercising its discretion." Ibid. (alteration in original) (citing State v. Roth, 95 N.J. 334, 363 (1984)).

The traditional articulation of this standard limits our exercise of authority to those situations in which the application of the facts to law has resulted in a clear error of judgment or a sentence that "shocks the judicial conscience." State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65). If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, we will not substitute our judgment for that of the trial court. Ibid.

Here, defendant argues that the trial court should not have found aggravating factors six and nine. See N.J.S.A. 2C:44-1(a) ("(6) The extent of the defendant's prior criminal record and the seriousness of the offenses . . . ; (9) The need for deterring the defendant and others from violating the law . . . ."). However, there is credible evidence in the record that defendant had been convicted of, among other things, distribution of drugs, possession of drugs, rioting, eluding police, receiving stolen property and illegal weapon possession. We accept the trial court's conclusion that defendant's criminal history supported the application of factor six and that deterrence via factor nine was appropriate. We find no basis for our intervention as to the imposed sentence.

Affirmed and remanded for the entry of a corrected judgment.

1 We note that defendant's judgment of conviction mistakenly listed the sixth count as violating N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:35-5(a)(1). The record reveals that defendant was actually convicted of violating N.J.S.A. 2C:35-7.1. We remand for the limited purpose of the entry of a corrected judgment.