STATE OF NEW JERSEY v. ANTHONY HUTCHERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY HUTCHERSON, a/k/a ANTHONY

BLACK, ANTHONY E. HUTCHERSON,

ANTHONY P. HUTCHINSON,

Defendant-Appellant.

_____________________________

October 17, 2013

Submitted October 2, 2013 Decided

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-10-2910.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for two counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a; two counts of third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1); and two counts of third-degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7. We affirm.

This case involves two hand-to-hand controlled drug buys in a school zone between defendant and a detective. The judge conducted a jury trial on four days in June 2010. The State produced testimony from Detectives Derwin Beckles and Anthony Ricks, and introduced into evidence a DVD documenting the drug transactions. Defendant did not testify or produce witnesses. We discern the following facts from the evidence adduced at trial.

On July 1, 2009, undercover agent Detective Beckles approached defendant in front of a restaurant while Detective Ricks watched from a nearby location. Defendant removed two green Ziploc bags containing cocaine from his mouth and handed them to Detective Beckles in exchange for twenty dollars. Detective Beckles then turned over the bags to Detective Ricks, who observed the transaction. This controlled drug buy was documented by a recording device worn by Detective Beckles and the recording was shown to the jury.

On July 4, 2009, Detective Beckles, who was driving an unmarked police car, observed defendant walking a dog and pulled over near a parked vehicle. Defendant approached the detective, removed two Ziploc bags containing cocaine from his pocket, and handed them to Detective Beckles in exchange for twenty dollars. Like the previous incident, the camera documented this transaction, which Detective Ricks also observed.

The jury found defendant guilty as charged. The judge granted the State's motion for an extended term and imposed an aggregate eight-year prison term with four years of parole ineligibility.1 This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED BY ALLOWING A FACT WITNESS FOR THE STATE TO IMPERMISSABLY OFFER EXPERT TESTIMONY CONCERNING NARCOTICS DISTRIBUTION (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN PERMITTING A POLICE WITNESS TO TESTIFY THAT HE WAS FAMILIAR WITH MR. HUTCHERSON FROM PRIOR CONTACT IN THE COMMUNITY (NOT RAISED BELOW).

POINT III

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. HUTCHERSON (NOT RAISED BELOW).

Regarding defendant's contentions raised in Points I and II, we apply the plain error standard because defendant did not object at trial. R. 2:10-2. "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) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

We reject defendant's contention that the lay testimony of Detective Ricks amounted to a violation of State v. McLean, 205 N.J. 438 (2011). Defendant argues, for the first time, that the judge erred by allowing into evidence the following testimony from Detective Ricks:

Q: [Y]ou saw [defendant] take something from his mouth?

A: Yes.

Q: In your experience . . . have you ever seen drug dealers take items of CDS from their mouth?

A: Yes, they do it quite often. When police come in the area[,] it's easy for them to swallow it and get rid o[f] it[,] rather than throw it away.

In the context of a drug distribution scheme, the New Jersey Supreme Court acknowledged "the boundary line that separates factual testimony by police officers from permissible expert opinion testimony." Id. at 460. Recognizing certain extant and general principles of law, Justice Hoens stated:

On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag.

On the other side of the line, we have permitted experts, with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. Therefore, an expert may explain the roles played by multiple defendants in a drug distribution scheme and may offer an opinion about the implications of the behavior that was observed by the fact witness.

[Id. at 460-61 (citations omitted).]

Detective Ricks did not overstep this boundary line and therefore we see no McLean violation here.

The testimony from Detective Ricks related to his personal observations and complied with N.J.R.E. 701 (addressing testimony from lay witnesses). His general testimony regarding the removal of CDS from the mouth placed his observation testimony in context. See McLean, supra, 205 N.J. at 458 (stating that "a lay witness [is] permitted to offer an opinion about the meaning of street slang that defendant used during a conversation relating to a crime because it was 'unfamiliar to the average juror, [it] was of assistance in determining the meaning and context of his conversation with defendant[,] and was obviously relevant to the issue of defendant's motive and intention'") (citation omitted).2 Moreover, defense counsel cross-examined Detective Ricks regarding purported reasons for a person to store CDS packets in his mouth, and he used this testimony in his summation in an attempt to undermine the credibility of Detective Ricks.

Finally, the record contains overwhelming evidence that defendant is guilty of these drug offenses. On two separate occasions, defendant sold cocaine to Detective Beckles; Detective Ricks observed both transactions; and each controlled drug buy was captured on tape. Therefore, we see no error, let alone plain error.

We have carefully considered defendant's remaining arguments in light of the record and applicable legal principles and conclude that his arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add the following brief remarks.

We reject defendant's contention, raised for the first time, that the judge erred by allowing Detective Ricks to testify fleetingly that he recognized defendant from "see[ing] him in the area all the time." We conclude that the statement did not have any "capacity to prejudice the defendant by implying that he had committed previous criminal acts or was otherwise disposed toward criminal behavior." State v. Ramos, 217 N.J. Super. 530, 538 (App. Div.), certif. denied, 108 N.J. 677 (1987). Accordingly, the statement was not "'clearly capable of producing an unjust result.'" State v. Macon, 57 N.J. 325, 337 (1971) (quoting R. 2:10-2).

Regarding the sentence, the judge properly granted the State's motion to impose a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-6f, in light of defendant's extensive criminal history. The judge found that aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9) substantially outweighed what he identified as the "practically nonexistent" mitigating factor N.J.S.A. 2C:44-1b(14).3 There is no reason to second-guess the application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). Moreover, in running defendant's prison term consecutive to defendant's pending sentence, the judge followed the guidelines established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied sub nom. Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

1 After the appropriate mergers, the judge imposed an eight-year prison term with four years of parole ineligibility on one school zone conviction, concurrent to a five-year prison term with three years of parole ineligibility on the other school zone conviction. The judge then ran that sentence consecutive to a pending sentence.

2 Detective Beckles also testified, without objection, giving his interpretation of various street terms used in his interactions with defendant. For example, he stated that "any out here got anything" referred to narcotics and the term "cookie" equated with crack cocaine. This testimony, similar to that of Detective Ricks regarding storing CDS in the mouth, placed properly in context the observations of the detectives. McLean, supra, 205 N.J. at 458.

3 There are thirteen mitigating factors listed in N.J.S.A. 2C:44-1b. The parties agree that the judge did find a mitigating factor, and the sentencing transcript bears that out, but the judge misidentified the mitigating factor and the judgment of conviction (JOC) does not list it. Therefore, and without objection, we direct that the judge enter an amended JOC to reflect the correct applicable mitigating factor.