STATE OF NEW JERSEY v. IBN F. BAILEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5806-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBN F. BAILEY, a/k/a

FAQUAN BAILEY, a/k/a

ISHINE,

Defendant-Appellant.

_______________________________________

November 28, 2011

Submitted October 12, 2011 Decided

Before Judges Messano and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 07-09-1548 and 08-07-0960.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising AssistantProsecutor, of counsel; Robert J. Cassidy, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ibn F. Bailey was tried before a jury and found guilty of possession of controlled dangerous substances (CDS) with intent to distribute and other offenses. Defendant appeals from the judgment of conviction entered on January 30, 2009. We affirm.

I.

Defendant was charged with third-degree possession of a CDS (phencyclidine or PCP), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a CDS (PCP) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count four); and third-degree hindering his apprehension or prosecution, N.J.S.A. 2C:29-3(b) (count five).

Defendant thereafter filed a motion to suppress the evidence obtained by the police after an investigatory stop and subsequent pat-down. The trial court conducted a hearing on the motion and on March 10, 2008, placed a decision on the record finding that that the police had lawfully obtained the evidence. The court entered an order on March 11, 2008, denying the motion to suppress.

At the trial, the State presented evidenced that on June 10, 2007, Michael Newman (Newman) was approached by three African-American men on a street corner in Seaside Heights. One of the men asked Newman if he wanted to buy "crack" or "dust." Newman told the man that he did not want to purchase the drugs. Newman reported the incident to Officer Richard Roemmele (Roemmele) of the Seaside Heights Police Department (SHPD), who was nearby.

Roemmele approached the three men. When they saw Roemmele, they started to walk away. Roemmele ordered the men to stop and they complied. Defendant was identified as one of the men. He was found in possession of a plastic bag containing seventeen smaller bags of cocaine, and another bag containing eight tinfoil packets of phencyclidine (PCP). Shantilal Patel, a chemist, testified that the bags seized from defendant contained 1.6 grams of cocaine and 1.4 grams of PCP.

Lieutenant Joseph Vitiello (Vitiello) of the SHPD was qualified as an expert in the field of narcotics. In response to a hypothetical question, Vitiello testified that a person with 1.6 grams of cocaine in seventeen individual baggies was possessing the drugs for distribution. Vitiello provided the same opinion about a person with 1.4 grams of PCP in eight individually-wrapped packages.

Defendant did not testify on his own behalf. The jury found him guilty on all counts. He was sentenced to an aggregate term of eight years of incarceration. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS SHOULD BE REVERSED.

(A) THE POLICE OFFICER DID NOT POSSESS THE REQUIRED LEVEL OF SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF THE DEFENDANT.

(B) THE POLICE OFFICER DID NOT HAVE A SPECIFIC AND ARTICULABLE BASIS TO CONDUCT A PAT-DOWN SEARCH OF THE DEFENDANT.

(C) THE INEVITABLE DISCOVERY DOCTRINE WAS NOT APPLICABLE.

(D) THE TRIAL COURT'S CONCLUSIONS OF LAW WERE PERFUNCTORY AND INADEQUATE.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO BAR EXPERT TESTIMONY BECAUSE THE PROBATIVE VALUE OF THE TESTIMONY WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.

POINT III

THE DEFENDANT'S FIFTH AMENDMENT RIGHT NOT TO TESTIFY WAS UNDERMINED IN THE TRIAL COURT'S ELECTION CHARGE AND IN THE PROSECUTOR'S SUMMATION (NOT RAISED BELOW).

POINT IV

THE CUSTODIAL BASE SENTENCE OF [EIGHT] YEARS IMPOSED ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF PHENCYCLIDINE WITH THE INTENT TO DISTRIBUTE ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.

II.

We turn first to defendant's contention that the trial court erred by denying his motion to suppress. Defendant argues that Roemmele lacked probable cause or reasonable suspicion necessary to conduct an investigative stop of defendant. He maintains that the information provided by Newman lacked the reliability and corroboration necessary to justify the stop. In addition, defendant argues that the officer did not have reasonable grounds to pat him down. We are convinced that these arguments are without merit.

A field inquiry "is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted 'without grounds for suspicion.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). An encounter between a law enforcement officer and a citizen escalates from a field inquiry to an investigative stop "when an objectively reasonable person feels that his or her right to move has been restricted." Ibid.

A warrant is not required for an investigative stop "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." Ibid. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). The reasonable suspicion standard is lower than the standard of probable cause. State v. Stovall, 170 N.J. 346, 356 (2002). As indicated in State v. Davis, 104 N.J. 490, 504 (1986), "[t]he 'articulable reasons' or 'particularized suspicion' of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced."

Here, Newman told Roemmele that he had been approached by three men and one of the men, later identified as defendant, offered to sell him "crack" or "dust." Newman pointed to defendant, who was talking to his companions. Roemmele observed defendant engage in brief conversations with two other individuals. He approached defendant and his companions and, when they saw him, they started to walk away. Roemmele ordered the three men to stop. Based on these facts, the trial court found that Roemmele had reasonable suspicion to believe defendant was engaged in criminal activity. The record supports that finding.

Defendant argues, however, that the information Newman provided to Roemmele did not justify an investigative stop. Defendant contends that Roemmele was required to corroborate the information before undertaking an investigative stop. We do not agree.

When the police rely on an "anonymous tip," the value of that information must be assessed on the basis of the tipster's "veracity, reliability, and basis of knowledge . . . ." State v. Privott, 203 N.J. 16, 26 (2010). In such situations, the police must verify the tip. Ibid. However, when the information is provided by a "non-anonymous ordinary citizen," it "may be regarded as trustworthy and information imparted . . . concerning a criminal event would not especially entail further exploration or verification . . . ." Davis, supra, 104 N.J. at 506.

Newman was a "non-anonymous ordinary citizen" who reported that defendant had offered to sell him drugs. Roemmele was not required to corroborate that information before making the investigative stop. While defendant asserts that Roemmele only saw him engage in actions that were innocuous, those actions, along with the information that Newman provided to him, gave Roemmele reasonable suspicion that defendant was engaged in unlawful conduct and justified the investigatory stop.

Defendant additionally argues that his motion to suppress should have been granted because Roemmele did not have a basis to pat him down and seize the contraband in his pockets. Defendant contends that Newman's tip did not justify the pat-down because Newman did not suggest that defendant was carrying a weapon and Roemmele only observed defendant engage in allegedly innocuous behavior. Again, we disagree.

A police officer may undertake a protective search of a person after conducting an investigative stop if "a reasonably prudent officer would be justified in the belief, based on 'specific and articulable facts[,]' and not 'his inchoate and unparticularized suspicions or hunch,' that the person is armed and dangerous." Privott, supra, 203 N.J. at 29-30 (quoting Terry, supra, 392 U.S. at 21, 27, 88 S. Ct. at 1880, 1883, 20 L. Ed. 2d at 906, 909).

Here, Roemmele testified that when he questioned defendant, defendant became nervous and looked several times at his companions. According to Roemmele, defendant repeatedly placed his hands into and out of his pockets. Roemmele testified that based on his training and experience, he knew that a suspected drug dealer could possess a weapon such as a knife, syringe, brass knuckles or razor. The trial court found that, based on these facts, Roemmele was justified in undertaking the pat-down. The record supports that finding.

Accordingly, we affirm the order of March 11, 2008 denying defendant's motion to suppress.

III.

Next, defendant argues that the trial court erred by permitting Vitiello to present expert testimony at trial about the possession and distribution of CDS. In our view, this argument is without merit.

"Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)). The State may ask an expert in the field of narcotics possession and distribution "a hypothetical question mirroring the facts of the case, even though" the question may be framed "'in terms of ultimate issues of fact.'" Ibid. (quoting Odom, supra, 116 N.J. at 81).

"'The hypothetical question should clearly indicate that it is the witness' opinion that is being sought and that that opinion was formed assuming the facts and circumstances adduced only at trial.'" Id. at 513 (quoting Odom, supra, 116 N.J. at 81). The trial court must instruct the jurors on the proper weight to be given to the expert testimony, and that the ultimate decision as to defendant's guilt rests with them. Ibid.

Defendant maintains that the jury in this case did not require expert testimony in order to determine whether he possessed the drugs for distribution. We disagree. It is well established that "the nature and purpose of the possession of illegal drugs is a subject within the specialized knowledge of experts and not something generally known by persons of ordinary understanding." Odom, supra, 116 N.J. at 73. Here, the jurors would not be expected to know whether defendant possessed the drugs for personal use or distribution, and Vitiello's testimony was reasonably required in order to assist the jury in making that determination.

Defendant also contends that the trial court erred by admitting Vitiello's testimony because the jury could have inferred that Vitiello believed defendant was guilty. However, an expert's opinion that drugs were held for distribution "does not rise to the level of an assertion that the defendant committed the crime charged . . . ." Odom, supra, 116 N.J. at 81. Indeed, Vitiello never stated that he believed defendant committed the charged offenses.

We therefore conclude that the trial court did not err by permitting Vitiello to provide expert testimony about the possession and distribution of CDS.

IV.

Defendant also contends that the trial court erred in its charge to the jury on his decision not to testify at trial. Here, the court told the jury that defendant had elected not to testify and that this was defendant's constitutional right. The court added:

You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant . . . did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. [Defendant] is entitled to have the jury consider all the evidence presented at trial, he is presumed innocent even if he chose, and he did choose, not to testify.

Defendant's argument focuses on the phrase "even if he chose" in the instruction.

In State v. Miller, 205 N.J. 109 (2011), the trial court provided the jury with the same instruction provided here. Id. at 126. In Miller, the defendant argued that the use of word "even" in the instruction suggested that he had an obligation to testify. Ibid. The Court held that "'a jury hearing this clear description could not be confused by the use of the word "even" and led to conclude that defendant had an obligation to testify.'" Id. at 127 (quoting State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010)).

Defendant nevertheless argues that the instruction given here denied him of his right to a fair trial because "just moments" before the instruction, the assistant prosecutor had purportedly "cast aspersions" on defendant's failure to testify by stating in his closing argument that "we can't get into the defendant's mind." We note that defense counsel did not object to this statement. Therefore, we must assume that defense counsel did not believe the remark was prejudicial at the time it was made. State v. Echols, 199 N.J. 344, 360 (2009).

In any event, we are satisfied that the assistant prosecutor's remark was not a comment upon defendant's decision not to testify. Furthermore, even if the assistant prosecutor's remark could be interpreted as a comment on defendant's exercise of his right not to testify, it was sufficiently addressed by the court's instruction to the jury.

The court instructed the jurors that they could not consider the fact that defendant did not testify in their deliberations or discussions "in any manner[,] at any time." We must assume that the jury followed the court's instruction. State v. Burns, 192 N.J. 312, 335 (2007).

V.

Defendant also challenges his sentence. The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.

After merging counts one (third-degree possession of PCP) with count two (second-degree possession of PCP with intent to distribute), and count three (third-degree possession of cocaine) with count four (third-degree possession of cocaine with intent to distribute), the court sentenced defendant to eight years of incarceration on count two; four years on count four, concurrent to the sentences on count two and five; and four years on count five (third-degree hindering apprehension or prosecution), concurrent to the sentences on count two and four. The court also ordered a six-year suspension of defendant's driving privileges and imposed appropriate fines and penalties.

Defendant argues that the imposition of an eight-year term on count two is excessive. Defendant maintains that the court should have found mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm); mitigating factor two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). We do not agree. See State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994) (holding that possession of CDS with intent to distribute "can be readily perceived to constitute conduct which causes and threatens serious harm.").

We are therefore satisfied that the sentences imposed here are not manifestly excessive or unduly punitive, do not represent an abuse of the court's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.