STATE OF NEW JERSEY v. JAMES C. MARRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4466-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES C. MARRERO,

Defendant-Appellant.

___________________________

Submitted May 4, 2011 Decided May 26, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1381.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS); third-degree possession of CDS with intent to distribute; third-degree possession of CDS with intent to distribute within 1000 feet of a school, and fourth-degree resisting arrest. Defendant argues that the assistant prosecutor made improper comments in her opening statement, there was no basis for either the investigatory stop or the claim that he abandoned the drugs, the judge erred by denying his motion for acquittal, and his sentence was excessive. We disagree and affirm.

On December 20, 2007, at approximately 7:00 p.m., Trooper Gregory Austin and three other officers were in an unmarked police car patrolling a known "drug area" of Camden. While at an intersection, Trooper Austin observed defendant receive money from Tonya Homan in a nearby empty parking lot. After accepting the money, defendant turned around, walked a few steps away, and picked up a small bag.

The troopers exited their vehicle, approached defendant, and announced their presence. Defendant dropped the bag and fled, but was quickly apprehended. The troopers arrested defendant, searched him, and recovered $324 from his pocket. Trooper Austin retrieved the bag and found that it contained twelve individual ziploc bags each holding a substance subsequently determined to be heroin.

Defendant moved to suppress the heroin and argued that the investigatory stop was unjustified because the officers had no reasonable articulable suspicion to believe a drug transaction had occurred. Trooper Austin testified at the hearing and the judge found his testimony to be credible. The judge concluded that the officers had probable cause to arrest defendant "based on the observation of an apparent CDS transaction" and denied the motion.

At trial, the assistant prosecutor described the location of defendant's arrest as an area known for drug crimes. She stated:

around a little after 7:00 in the evening, four state troopers were on patrol in Camden. They were approaching an intersection at Fourth and York [s]treets.

And you will hear from a witness that that's a high crime area and it's known for drug distribution. And the four troopers were driving up towards the intersection and you will hear from a trooper that he observed what he believed to be a drug transaction. Because he used circumstantial evidence, he put two and two together to make four.

Both Trooper Austin and Investigator Mark English testified that the location of defendant's arrest was known for drug trafficking. Investigator English also explained that it is typical for drug sellers to stash drugs in a bag away from their person. At the conclusion of the State's case, Judge Wells denied defendant's motion for a judgment of acquittal.

Homan testified at trial on behalf of defendant and admitted that she was attempting to purchase drugs on December 20, 2007, but not from defendant. She claimed that ten to fifteen other people were in the area that night.

A jury found defendant guilty of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Four). The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f because defendant had a prior 1000-foot conviction, and the judge granted the motion. He merged Counts One and Two into Count Three and sentenced defendant to a term of nine years in prison, with four and one-half years of parole ineligibility. On Count Four, the judge imposed a concurrent term of eighteen months in prison.

On appeal, defendant raises the following points:

Point I

THE PROSECUTOR'S OPENING STATEMENT THAT THE AREA IN WHICH THE CRIME OCCURRED WAS A "HIGH CRIME AREA" AND KNOWN FOR "DRUG DISTRIBUTION" AND AUSTIN'S TESTIMONY THAT IT WAS A "DRUG AREA," WERE IRRELEVANT AND UNDULY PREJUDICIAL "GUILT BY ASSOCIATION" EVIDENCE REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL

(not raised below).

Point II

THE COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE POLICE CONDUCTED AN INVESTIGATORY STOP WITHOUT REASONABLE AND ARTICULABLE GROUNDS FOR SUSPICION, AND THE EVIDENCE DOES NOT SUPPORT THE CLAIM THAT DEFENDANT "ABANDONED" THE BAG OF DRUGS FOUND IN THE PARKING LOT.

Point III

BECAUSE THE STATE FAILED TO PROVE THE OFFENSE OF POSSESSION WITH INTENT TO DISTRIBUTE BEYOND A REASONABLE DOUBT, THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. U.S. CONST. AMEND XIV; N.J. CONST. ART. I, PARS. 1, 9, 10.

Point IV

THE NINE-YEAR BASE SENTENCE WAS EXCESSIVE SINCE IT WAS BASED ON MISAPPLICATION OF AGGRAVATING FACTORS, AND THE COURT APPLIED AN AGGRAVATING FACTOR THAT AMOUNTED TO DOUBLE-COUNTING.

We begin by addressing defendant's argument that the assistant prosecutor made improper comments during her opening statement. Prosecutors "'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). However, prosecutors should limit comments in the opening to facts they believe in good faith to be supported by sufficient, credible evidence. Id. at 360. Thus, prosecutors "'should not make inaccurate legal or factual assertions during a trial[,] and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Ibid. (quoting State v. Reddish, 181 N.J. 553, 641 (2004)); accord State v. Smith, 167 N.J. 158, 178 (2001).

Reversal will be warranted when the prosecutor's conduct is so egregious that it deprives defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Ibid. (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).

Defendant did not object to the assistant prosecutor's opening statement at trial, and thus our standard of review of defendant s claim is plain error. R. 2:10-2; State v. Green, 86 N.J. 281, 289 (1981). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

Here, the assistant prosecutor's comments that the area in question was a high crime area known for drug trafficking properly referenced "evidence [to be] revealed during the trial." Echols, supra, 199 N.J. at 360 (internal quotations omitted). Both Trooper Austin and Investigator English testified that the location of defendant's arrest was a known drug area. The assistant prosecutor's comments were not error, let alone plain error.

Defendant argues that Trooper Austin's testimony that the parking lot was in a "high drug" area was inadmissible because it was irrelevant, extremely prejudicial, and analogous to improper other crimes evidence. We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Bd. of Educ., supra, 409 N.J. Super. at 430; Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Generally, all relevant evidence is admissible. N.J.R.E. 402. Relevant evidence "may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." N.J.R.E. 403. In addition, N.J.R.E. 404(b) provides, with exceptions, that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Defendant did not object to Trooper Austin's testimony at trial and thus, our standard of review is plain error. R. 2:10-2.

Trooper Austin's testimony that the area was known for drug trafficking was relevant because that knowledge, combined with his observation of defendant receiving money from Homan and picking up a small bag, provided him with reasonable and articulable suspicion that a drug transaction was occurring. Trooper Austin's characterization of the neighborhood was permissible because it was "rationally based on [his] perception . . . and . . . assist[ed] [the jury] in understanding the witness' testimony or in understanding a fact in issue." N.J.R.E. 701. Furthermore, Trooper Austin's testimony was not unduly prejudicial and his description of the neighborhood did not constitute other crimes evidence. Thus, no plain error existed.

Next, defendant argues that the cash found after Trooper Austin searched defendant and the bag containing heroin should have been suppressed. At the suppression hearing, the judge found that Trooper Austin had probable cause to arrest defendant and thus, Trooper Austin's search of defendant was performed incident to a valid arrest. On appeal, defendant does not challenge the judge's finding of probable cause to arrest. Defendant argues instead that the evidence obtained from the search was improper "fruit of the poisonous tree" because the police's initial investigatory stop was an unconstitutional search and seizure. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963); State v. James, 346 N.J. Super. 441, 453 (App. Div.), certif. denied, 174 N.J. 193 (2002). Defendant also maintains that he did not abandon the bag containing heroin and therefore held a privacy interest in the bag.

In reviewing an order disposing of a motion to suppress evidence we must defer to the trial court's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 244. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding "[i]f the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also Robinson, supra, 200 N.J. at 3 ("[t]he warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects"). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

An investigatory stop is valid "'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Pineiro, supra, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510-11 (2003)). "[T]he level of reasonable suspicion necessary to justify an investigatory stop is 'something less than the probable cause standard needed to support an arrest.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)). We must look to the totality of the circumstances in determining whether the police had a reasonable suspicion of criminal activity. Arthur, supra, 149 N.J. at 8 (citing State v. Valentine, 134 N.J. 536 (1994)).

"[I]f the State can show that property was abandoned, a defendant will have no right to challenge the search or seizure of that property. Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property." State v. Johnson, 193 N.J. 528, 548-49 (2006) (internal footnote omitted). "[P]roperty is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property." Id. at 549 (internal footnote omitted). In other words, an individual abandons property when he "voluntarily discards, leaves behind[,] or otherwise relinquishes his interest in the property" such that he lacks any "expectation of privacy at the time of the search." State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (citation and internal quotations omitted).

Here, Trooper Austin's initial investigatory stop was valid and therefore his search of defendant was not derived from the "fruit of the poisonous tree." His "reasonable suspicion of criminal activity" was based on the facts that he was in a high drug area and no one was present in the parking lot besides defendant and Homan. Moreover, Trooper Austin observed defendant receive money from Homan and saw defendant pick up a small bag after receiving the money. These facts are not only sufficient to support a finding of reasonable and articuable suspicion, but are also adequate to support a finding of the more stringent standard of probable cause to arrest defendant, which the motion judge found.

Furthermore, defendant does not have standing to challenge the introduction of the heroin into evidence. Trooper Austin observed defendant toss the bag to the ground before he attempted to flee. Thus, defendant abandoned the property and relinquished any expectation of privacy that he once had.

Next, defendant contends his motion for acquittal should have been granted. At the close of the State's case or after the presentation of all evidence, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences . . . a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). We use the same standard as the trial court in reviewing a motion for judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). If insufficient evidence is found, then an acquittal is required. Applying that standard, we conclude that the trial judge properly denied the motion.

To prove possession with intent to distribute CDS near or on school property, the State must prove that: (1) the substance in evidence is heroin; (2) defendant possessed or had the heroin under his control; (3) defendant had the intent to distribute the heroin when he possessed it or had it under his control; (4) defendant acted knowingly or purposely in so doing; and (5) the act occurred on or within 1000 feet of any school property. Model Jury Charge (Criminal), "Possession with Intent to Distribute Controlled Dangerous Substances Near Or On School Property Used for School Purposes (2C:35-7)" (2008).

Here, the State satisfied each element with sufficient evidence. The State established that the substance in the small bag was heroin. The jury could infer defendant maintained constructive possession of the heroin when it was on the ground based on Trooper Austin's and Investigator English's testimony, and that defendant had actual possession when Trooper Austin observed defendant pick up the bag. Defendant intended to distribute the heroin and did so knowingly when he accepted $324 from Homan and then retrieved the bag containing twelve smaller bags of heroin packaged in a manner that Investigator English testified was typical of drug sellers. The parties stipulated that defendant's arrest was situated within 1000 feet of school property. Thus, a reasonable jury could find defendant guilty of violating N.J.S.A. 2C:35-7.

Finally, defendant argues that he received an excessive sentence.1 Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Id. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 5; O'Donnell, supra, 117 N.J. at 215.

Applying these standards, we discern no reason to disturb the sentence. Defendant argues that the judge impermissibly double-counted when he found that aggravating factor eight applied (offense against a police or other law enforcement officer) because he was convicted of resisting arrest. N.J.S.A. 2C:44-1a(8); see State v. Kromphold, 162 N.J. 345, 353 (2000) (holding elements of crime cannot be used to satisfy aggravating factors otherwise the crime itself would eliminate "the distinction between elements and aggravating factors"). While we acknowledge that aggravating factor (8) is not applicable, defendant's sentence was still appropriate. The trial judge followed the sentencing guidelines and the record supports the judge's findings of aggravating factors pursuant to N.J.S.A. 2C:44-1a(3), (6), and (9) substantially outweighing the non-existent mitigating factors. Thus, the sentence is not "clearly

mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Affirmed.

1 Defendant does not appear to challenge his mandatory extended term sentence because of his prior conviction for possession of CDS with intent to distribute within 1000 feet of a school. Rather, he contends he should receive a lesser sentence within the extended sentence range because of the judge's misapplication of aggravating factors.