STATE OF NEW JERSEY v. DUJUAN LITTLEJOHN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2546-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUJUAN LITTLEJOHN,

a/k/a DUJUAN P. LITTLEJOHN,

Defendant-Appellant.

_______________________________________

January 24, 2013

Argued December 18, 2012 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-0199.

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief).

Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosenkrans, of counsel and on the brief).

PER CURIAM

After his motion to suppress was denied, defendant was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance (CDS), specifically cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b) (3) (count two); and third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). The trial judge merged counts one and two with count three and sentenced defendant to an extended term of eight years of imprisonment, with a four-year period of parole ineligibility. The court entered a judgment of conviction dated July 23, 2010.

Defendant appeals and raises the following arguments for our consideration:

POINT I

BECAUSE LAW ENFORCEMENT SEIZED PHYSICAL EVIDENCE AS A RESULT OF APPREHENDING [DEFENDANT] IN A RESIDENCE WITHOUT PROBABLE CAUSE TO BELIEVE THAT HE HAD COMMITTED A SERIOUS CRIME, IN VIOLATION OF THE N.J. CONST. ART. I 7 AND U.S. CONST. AMEND. IV, THE EVIDENCE MUST BE SUPPRESSED (RAISED BELOW).

POINT II

OFFICER ROSA'S OPINION TESTIMONY THAT HE OBSERVED A POSSIBLE NARCOTICS TRANSACTION AND THE OMISSION OF ANY EXPERT INSTRUCTION CONCERNING THAT TESTIMONY DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).

POINT III

THE OMISSION OF A CRITICAL PART OF THE EXPERT INSTRUCTION ON HOW THE OPINION TESTIMONY OF DETECTIVE HOLLOWAY SHOULD BE WEIGHED DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).

POINT IV

THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND APPEARED TO TAKE INTO ACCOUNT IMPROPER, INACCURATE, OR UNSUBSTANTIATED INFORMATION IN SENTENCING [DEFENDANT] TO AN EIGHT YEAR SENTENCE WITH A FOUR YEAR PERIOD OF PAROLE INELIGIBILITY.

For the reasons that follow, we reject these arguments and affirm.

I.

Defendant first argues that the trial court erred by denying his motion to suppress. We do not agree.

The Constitutions of the United States and the State of New Jersey protect our citizens from unreasonable searches and seizures. State v. Mann, 203 N.J. 328, 337 (2010) (citing State v. Amelio, 197 N.J. 207, 211 (2008)). The Federal and State Constitutions provide that warrants to search will not be issued except upon probable cause. U.S. Const. amend. IV; N.J. Const. art. 1, 7. Therefore, warrantless searches and seizures "are 'presumptively unreasonable.'" State v. Johnson, 193 N.J. 528, 552 (2008) (quoting State v. Elders, 192 N.J. 224, 246 (2007)).

A warrantless search or seizure is unconstitutional unless it falls within a recognized "exception[] to the warrant requirement." Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)). A warrantless search or seizure inside a home is presumed to be unreasonable and unconstitutional. State v. Hutchins, 116 N.J. 457, 462-63 (1989) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)).

Hot pursuit of a suspect is an exception to the warrant requirement. Id. at 464; United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305 (1976). A "hot pursuit" may justify a warrantless entry into a home provided the police had sufficient probable cause when they "first sought to arrest [the suspect]. . . in a public place." Id. at 42, 96 S. Ct. at 2409, 49 L. Ed. 2d at 305.

Probable cause is "a reasonable basis for a belief that a crime has been or is being committed." State v. Williams, 117 N.J. Super. 372, 375 (App. Div.) (citing State v. Contursi, 44 N.J. 422, 429 (1965)), aff'd o.b., 59 N.J. 535 (1971). In determining whether there was probable cause, the court considers the totality of circumstances. State v. Basil, 202 N.J. 570, 585 (2010) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).

At the suppression hearing, Officer Jose Rosa (Rosa) of the Newark Police Department testified that on January 19, 2009, he was on patrol in the area of South 18th Street in Newark with his partner, Detective Horatio Lorenzo (Lorenzo). Rosa and Lorenzo were riding in an unmarked car. Rosa said that he and Lorenzo were at that location to address narcotics problems and other issues such as thefts and robberies. He explained that the area was known for certain crimes, such as narcotics, auto thefts, and robberies.

At approximately 10:55 p.m., Rosa and Lorenzo came upon a silver Toyota on South 18th Street. Rosa noticed that the car was double parked, even though the driver could have pulled over and parked in "a big parking spot." The unmarked police vehicle approached at about ten miles per hour. As he approached the parked car, Rosa observed a man, who was later identified as defendant, come out of an alleyway or driveway.

Defendant leaped over a small embankment of snow and had a bag in his right hand. Defendant walked quickly toward the parked car and then noticed Rosa's car. Rosa said that defendant "became extremely startled" and yelled "the boys." Rosa said that this was "street terminology for police." Rosa said that, based on his training and experience, he believed a narcotics transaction had been about to occur.

Defendant started running in the direction of a residence on South 18th Street with the bag in his hand. Rosa and Lorenzo exited their car and pursued defendant. Defendant stumbled and fell. He ran into an apartment on the first floor of a two or three-family home on South 18th Street.

Rosa said he and Lorenzo were close to defendant and they were able to follow him inside the apartment. Defendant ran into the bathroom. He tossed the bag into the toilet and attempted to flush it. Rosa quickly apprehended defendant, and Lorenzo retrieved the bag from the toilet. It was found to contain fifty-nine vials of cocaine.

The trial court found that when Rosa began to pursue defendant, he had probable cause to believe "that a crime was afoot[,]" based on defendant's flight upon seeing the officers, his effort to alert any "fellow cohorts," and his "furtive gestures," including coming out of the alleyway, halting, watching the police, and then calling out "the boys" to others in the area. The court concluded that the actions of the police "were completely justified based upon probable cause and the exigent circumstances" of the situation. The court accordingly denied defendant's motion to suppress.

A trial court's factual findings are binding on appeal when they are supported by sufficient credible evidence in the record. Elders, supra, 192 N.J. at 243 (citing State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to the trial court's factual findings is particularly appropriate where, as here, the findings are "'substantially influenced by [the judge's] opportunity to hear and see the witnesses and have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Defendant argues, however, that the trial court erred by finding the officers had probable cause to arrest him. He contends that the officers did not have sufficient reasons to believe a drug transaction was about to take place. Defendant points out that the officers never made a verbal command telling him to stop. Defendant therefore contends that the officers did not have probable cause to enter the apartment and seize the cocaine.

We do not agree. Here, the trial court noted that defendant had rapidly approached the double-parked car in a high-crime area. Rosa testified that defendant appeared "extremely startled" when he saw the officers' car, and he called out to others on the scene, using street vernacular to identify Rosa and Lorenzo as police officers. Moreover, defendant immediately fled on foot. While the officers did not call out and direct defendant to stop, Rosa's testimony indicates that defendant was well aware he was being pursued by the police and attempted to elude apprehension by running into the apartment.

We are convinced that the evidence presented at the suppression hearing fully supports the trial court's determination that the officers' entry into the residence and seizure of the evidence were justified under the hot pursuit exception to the warrant requirement. We accordingly affirm the denial of defendant's motion to suppress.

II.

Next, defendant argues that, at the trial, Rosa testified as a fact witness but was improperly allowed to express an opinion that, based on his training and experience, he believed a narcotics transaction was about to take place. Defendant contends that Rosa gave expert testimony, although not qualified as an expert, and the trial court erred by failing to instruct the jury on its consideration of such testimony.

This argument was not raised at trial. Therefore, we consider whether the admission of Rosa's opinion testimony and the absence of an instruction identifying Rosa's statement as expert testimony was erroneous and, if so, whether any such error was "clearly capable of producing an unjust result." R. 2:10-2.

Lay opinion testimony may be admitted at trial "if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function." State v. McLean, 205 N.J. 438, 456 (2011) (citing N.J.R.E. 701). Such evidence may not be admitted, however, on a matter "'as to which the jury is as competent'" as the witness "'to form a conclusion[.]'" Id. at 459 (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). See State v. Sowell, N.J. , (2013) (slip op. at 11-18) (discussing the permissible use of expert opinion testimony in cases involving drug offenses).

Furthermore, police officers may provide "an ordinary fact-based recitation" of facts, but such testimony may not include any opinion as to what the officer "believed," "thought" or "suspected." McLean, supra, 205 N.J. at 460. While an expert witness may opine as to the significance of certain conduct that would otherwise fall outside the understanding of persons on the jury, that testimony may not be presented as lay opinion testimony. Id. at 460-62.

We agree that Rosa's testimony as to what he "believed" he had seen when defendant approached the parked car was not proper lay opinion testimony. Nevertheless, we are convinced that the admission of Rosa's testimony did not rise to the level of plain error.

At the trial, the State presented testimony from Detective Reginald Leon Holloway (Holloway) of the Essex County Sheriff's Office, who was qualified by the court to testify as an expert on street-level narcotics distribution. Holloway testified, in response to a hypothetical question, that a person who is about to engage in a narcotics drug transaction, sees the police, flees, attempts to dispose of what he is carrying, and is later found to have been in possession of fifty-nine vials of cocaine, did not possess the cocaine for personal use. Holloway said that such a person possessed the cocaine with intent to distribute the same for monetary gain.

We are satisfied that, in light of Holloway's testimony, Rosa's improper lay opinion testimony was unlikely to have affected the jury's determination and its admission was not plain error. R. 2:10-2.

Defendant also contends that the trial judge erroneously failed to instruct the jury on the manner in which it should evaluate Rosa's testimony. Again we disagree. As we stated previously, Rosa was not qualified as an expert. Furthermore, the judge provided the jury with detailed instructions on the manner in which it should review all of the testimony and assess the credibility of the witnesses. We are satisfied that the court's instructions provided the jury with sufficient guidance for its consideration of Rosa's testimony.

III.

Defendant further argues that the trial judge erred in his instruction to the jury on the manner in which it should consider Holloway's expert testimony. This argument was not raised at trial. Therefore, we consider whether the court's instruction was erroneous and, if so, whether it was plain error. R. 2:10-2.

After Holloway was qualified as an expert, but before he testified, the trial judge read a portion of the model jury charge on expert testimony. Model Jury Charge (Criminal), "Expert Testimony" (2003). The judge told the jurors they could accept or reject the expert's testimony, and give it the weight the jurors believed it was "entitled to." The judge also said the jurors were not bound by an expert's opinion, and they could weigh "the credibility of an opinion witness" as it weighed the credibility of "any other" witness.

The judge failed, however, to read to the jury the following portion of the model charge: "In examining each opinion, you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert." Defendant contends that the omission of this section of the model charge constituted plain error since it "had the ability to affect the jury's verdict." We do not agree.

As we stated previously, the trial judge provided the jury with detailed instructions on the manner in which it should assess the credibility of all of the witnesses. Defendant never questioned Holloway's qualifications and the jury was free to assess the reasons why Holloway had been called to testify as a witness for the State. We conclude that the erroneous omission of the portion of the model jury charge on expert testimony was not an error "clearly capable of producing an unjust result[.]" R. 2:10-2.

IV.

Defendant additionally argues that his sentence is excessive. He contends that the trial judge failed to properly weigh the aggravating and mitigating factors and appeared to take into account inaccurate or unsubstantiated information when sentencing.

Here, the trial judge 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 defendant was convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment of defendant will cause excessive hardship to defendant or his dependents).

The judge also found that the aggravating factors outweighed the mitigating factor "on the qualitative and quantitative basis." The judge merged counts one and two with count three, and imposed an eight-year, extended-term sentence, with a four-year period of parole ineligibility.1

Defendant argues that the judge impermissibly double-counted his prior criminal convictions in finding the aggravating factors because his prior CDS convictions made him eligible for extended-term sentencings. Defendant's record includes two prior convictions involving the distribution of CDS. Only one of those conditions was required to make him eligible for extended-term sentencing under N.J.S.A. 2C:43-6(f). The other CDS conviction could be considered for sentencing purposes.

Defendant also has been arrested seventeen times, and has been convicted on disorderly persons offenses four times. Thus, there was sufficient evidence in the record to support the judge's finding of aggravating factors three, six and nine.

Defendant additionally argues that the judge improperly considered the fact that defendant's mother was addicted to drugs. Defendant says that the judge erroneously suggested that he had something to do with his mother's drug use. However, the judge made the remark in response to defendant's request for leniency, and did not rely on that comment when sentencing defendant.

Defendant further argues that the judge did not give sufficient weight to mitigating factor eleven. Defendant says that this factor should have resulted in the imposition of the minimum extended-term sentence, as well as a shorter period of parole ineligibility. We are convinced that this argument is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does 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.

1 We note that, after the trial in this matter, defendant pled guilty to third-degree possession of CDS with intent to distribute in a school zone, as charged under Essex County Indictment No. 09-11-2952; and fourth-degree trespass, as charged under Essex County Indictment No. 09-07-2014. He was sentenced on all three indictments on July 23, 2010. The judge ordered that the sentences imposed on Indictments No. 09-11-2952 and 09-07-2014 run concurrently with the sentence imposed in this case.