STATE OF NEW JERSEY v. SALAH O. ALI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5157-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALAH O. ALI, a/k/a KEVIN

MCDANIELS, TODD O. JOHNSON,

Defendant-Appellant.

__________________________________

June 1, 2011

Submitted May 17, 2011 - Decided

Before Judges Messano and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-0903.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the briefs).

Peter E. Warshaw, Jr., Monmouth County Prosecutor,attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Salah O. Ali appeals his conviction on five counts of violating the laws regarding controlled dangerous substances (CDS), as well as the resulting aggregate sentence of incarceration for ten years with a forty-month period of parole ineligibility. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On November 23, 2008, co-defendant Brian Mignelli contacted Ali to arrange for the purchase of heroin in Asbury Park. Mignelli and his wife then drove to Asbury Park and parked on Church Street, as he had arranged with Ali. When Ali approached the passenger's side window of the car and leaned in, Mignelli gave him $160 in cash. Ali then walked to and entered a house on Pine Street. Shortly thereafter, he exited the house and returned to the Mignelli car. He leaned into the car, took two bundles, with ten bags of heroin in each, out of his pocket, and put the bundles into the car. Mignelli told Ali to keep five bags of heroin, which Ali returned to his pocket. The transaction took place within one thousand feet of a parochial school.

The transaction described above was witnessed by two Asbury Park police officers. They approached Ali while he was still adjacent to the Mignelli car. Ali was ordered to take his hands out of his pockets, at which time he was observed to have four bags of heroin. After Ali was arrested and searched, the fifth bag of heroin was recovered.

Although Mignelli had driven away when the police approached Ali, he and his wife were pursued and eventually stopped. The remaining heroin was found in the Mignelli car, although Mignelli originally told one of the police officers that he had thrown the heroin out of the car window. In fact, he had actually given it to his wife to hide during the police pursuit.

Ali was indicted on the following charges: possession of CDS, contrary to N.J.S.A. 2C:35-10(a)(1) (Count 1); possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (Count 2); distribution of CDS, contrary to N.J.S.A. 2C:35-5(b)(3) (Count 3); possession of CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count 4); distribution of CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count 5); possession of CDS with intent to distribute within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1 (Count 6); and distribution of CDS within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1 (Count 7).1 The State dismissed counts six and seven prior to trial.

Ali was tried before a jury on January 12 and 13, 2010. After presentation of the State's case, Ali moved for acquittal on the distribution counts. He argued that, because he and Mignelli had joint possession of the heroin, he could not be convicted of distributing it to Mignelli. The trial judge denied the motion. The jury convicted Ali on all counts.

Ali was sentenced on April 23, 2010. Because of his extensive prior record, he was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). Consequently, the sentencing range for the third-degree distribution-in-a-school-zone charge was from three to ten years of incarceration. The State recommended a nine-year sentence, with fifty-four months of parole ineligibility. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), with no mitigating factors. He imposed a ten-year sentence, with forty months of parole ineligibility.

This appeal followed.

II.

Ali raises the following issues on appeal:

POINT I: DEFENDANT COULD NOT RECEIVE A FAIR TRIAL BECAUSE THE JUROR PANEL SUMMONED IN THIS CASE DID NOT CONTAIN ONE AFRICAN AMERICAN IN A COUNTY WITH A SUBSTANTIAL AFRICAN AMERICAN POPULATION. (NOT RAISED BELOW).

POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL ON THE DISTRIBUTION COUNTS FOR FAILURE OF THE STATE TO PRESENT A PRIMA FACIE CASE ON DISTRIBUTION.

POINT III: THE TRIAL JUDGE ERRED BY GOING OUTSIDE THE STATUTORY AGGRAVATING AND MITIGATING FACTORS IN IMPOSING A MANIFESTLY EXCESSIVE SENTENCE CONSTITUTING AN ABUSE OF HIS DISCRETION.

A.

For the first time on appeal, Ali challenges the petit jury array from which the trial jury was selected, alleging that there were no African-Americans on the panel. He contends that the absence of African-Americans on the panel "create[d] a suspicion of taint" sufficient to have required the trial judge to hold a hearing on the issue. We disagree.

Ali had the right to challenge the jury array. Rule 1:8-3(b) provides that "[a]ny party may challenge the array in writing on the ground that the jurors were not selected, drawn or summoned according to law." Ali made no such challenge, which must be made and decided "before any individual juror is examined." Ibid.

In State v. Butler, 155 N.J. Super. 270, 271 (App. Div. 1978), we held that the time to make such a challenge can be extended, but "only . . . where a prima facie showing of actual prejudice to the right of a defendant to a fair and impartial jury has been made." No such showing has been made here. Indeed, Ali contends only that there was "a suspicion of taint" due to the absence of African-Americans on the jury panel. "Challenges asserting constitutional rights . . . 'must be shown to rest on fact. Mere conclusions are inadequate.'" State v. Timmendequas, 161 N.J. 515, 603-04 (1999) (quoting State v. Robinson, 128 N.J. Super. 525, 530 (Law Div. 1974)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

While the right to an impartial jury "goes to the very essence of a fair trial," State v. Williams, 93 N.J. 39, 60 (1983), such a right is subject to waiver if not properly and timely raised. State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987). We conclude that Ali's raising of the issue on appeal is both untimely and unsupported, and that there was no basis for the trial judge to have raised the issue sua sponte.

B.

Ali next argues that the trial judge should have granted his motion for a judgment of acquittal on the distribution charges on the grounds that he and Mignelli had joint possession. Again, we disagree.

Entry of a judgment of acquittal at the end of the State's case is appropriate only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (citation and internal quotation marks omitted). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).

Ali's argument is premised on his assertion that he and Mignelli jointly purchased and possessed the heroin, such that he could not have distributed it to Mignelli as a matter of law. The difficulty with Ali's argument lies in the fact that he and Mignelli did not simultaneously acquire the drugs for their own use, as was the case in United States v. Swiderski, 548 F.2d 445, 450-51 (2d Cir. 1977).

In Swiderski, defendant and his fiancée (later, his wife) jointly traveled to a location where they sampled cocaine and Swiderski paid for its purchase, pocketing the drugs. Shortly thereafter, the drugs, along with considerable additional cash, were found by Drug Enforcement Agency officers in the fiancée's purse. Swiderski, supra, 548 F.2d at 448. The court held their "simultaneously acquired" possession to be joint, id. at 451, and that Swiderski had not distributed the drugs to his fiancée. Id. at 450. The court distinguished between joint possession for personal use, such as that between Swiderski and his fiancée, and an agency relationship, such as that between Mignelli and Ali.

The agent who delivers to his principal performs a service in increasing the distribution of narcotics. Without the agent's services the principal might never come into possession of the drug. Purchasers who simultaneously acquire a drug jointly for their own purpose, however, do not perform any service as links in the chain; they are the ultimate users.

[Id. at 451.]

In State v. Lopez, 359 N.J. Super. 222, 229 (App. Div.), certif. granted, sub nom. State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003), the police entered defendants' residence pursuant to a no-knock warrant, finding both to be present, along with small numbers of marijuana cigarettes and small amounts of loose marijuana, lactose, baggies, walkie-talkies, a pipe, and, behind the kitchen wall and molding, a small amount of cocaine. We held as a matter of law in that case that the prosecutor's theory that defendants jointly possessed and shared the drugs could not support charges of possession with the intent to distribute. Lopez, supra, 359 N.J. Super. at 236.

And in State v. Morrison, 188 N.J. 2, 5 (2006), defendant pooled his money with that of a friend, and they jointly drove to a location where they purchased heroin, which they then shared. That joint possession, the Court held, could not provide the foundation for an indictment charging defendant with the distribution of two decks of heroin to his friend, resulting in his death. Id. at 19-20.

We stated in Lopez:

The legal concept of "joint possession" is premised upon a metaphysical event in which two or more persons simultaneously possess an entire object, without leaving any piece of it outside the joint possessors' control. A corollary of this proposition is that one cannot acquire something one already possesses. Having an object with the intent to distribute presumes that the intended recipient does not have possession of it. Therefore, as a matter of law, two or more defendants cannot intend to distribute to each other drugs they jointly possess. Stated differently, the element of "intent to distribute" under either N.J.S.A. 2C:35-5 or N.J.S.A. 2C:35-7 cannot be established on the basis of the sharing of drugs between or among joint possessors.

[Lopez, supra, 359 N.J. Super. at 233-34.]

In this case, there was overwhelming evidence in the record that Ali received money from Mignelli, used it to obtain the heroin, gave the heroin to Mignelli, and received the five bags of heroin, rather than money, as his compensation for brokering the drug transaction. There was no "joint possession" as that concept was applied in the cases cited above, nor was there any pooling of resources for a joint purchase. Mignelli was the only source of the money used to purchase the heroin. Consequently, the trial judge appropriately denied the motion for a judgment of acquittal.

C.

Finally, Ali challenges the sentence, arguing that the trial judge inappropriately relied on the criminal problems in Asbury Park in imposing the maximum term. The State counters that the sentence was supported by the record and well within the judge's discretion.

Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court 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. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

"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.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

We agree with Ali that the judge mentioned Asbury Park several times in connection with his articulation of the aggravating factors.2 Nevertheless, we find no error.

The judge was not, as Ali argues, importing extraneous aggravating factors into the sentencing criteria, see State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002), nor was he holding Ali "vicariously accountable" for the actions of others. See State v. Rogers, 236 N.J. Super. 378, 387 (App. Div. 1989), aff'd, 124 N.J. 113 (1991). He was focusing on Ali's conduct, albeit in the context of the location at which it occurred.

The judge was explaining his reasons for finding aggravating factor nine, the need to deter Ali and others. N.J.S.A. 2C:44-1(a)(9).

I've received letter after letter from Mrs. Ali, all saying that her husband is not a bad guy, but he's just an addict. He's not just an addict. He is [a] bad guy. He's one of the people that's causing the downfall of that city. People come up to Ocean County and they come here to make buys of drugs. It gives a lot, a lot of that money to the people in the gangs, people in the drug business. It is what's ruining the City of Asbury Park.

And the word has to get out that if you are in the business of selling drugs, you are in the business of distributing drugs and you're in the business of making the purchase of drugs easier, if you get caught, you are going to go to jail for a long time.

The city is trying as hard as it possibly can. And people like Salah Ali are pulling it down, grabbing the back of the pants of the city and yanking it down. And for that he and anybody else who does that has to be punished.

. . . .

Number nine, the need to deter you and others from violating the law. As I said before you got to know that if you are out there . . . on the street and people know that Salah Ali is a source of drugs, whether you are getting money in your pocket or your own taste of heroin or whatever the drug is, you are causing those problems out there.

So the world has to know that if you commit these kinds of offenses you are going to be sentenced to jail for a long time, and also to protect the citizens of Asbury Park and the City of Asbury Park from this kind of behavior.

We see no error in the judge's having put his findings in context, as long as he was relating it to Ali's own conduct, which he was.

Finally, we note that, although the judge's sentence was ten years as opposed to the nine recommended by the State, he only imposed a forty-month period of parole ineligibility as opposed to the fifty-four months recommended by the State. Consequently, the judge's sentence requires Ali to serve fourteen fewer months before becoming eligible for parole.

The sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 363-65. We will not interfere with the judge's exercise of his broad discretion in sentencing.

Affirmed.

1 The Mignellis were charged with possession in count one of the indictment. Both of them pled guilty and were placed on probation for a three-year period. Brian Mignelli subsequently testified against Ali at trial.

2 The State is incorrect to the extent it suggests that Asbury Park was not mentioned until after the judge had found the aggravating factors.