STATE OF NEW JERSEY v. NA'SKI JONES

NOT FOR PUBLICATION WITHOUT THE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.

NA'SKI JONES,

Defendant-Appellant.

November 6, 2013

Argued October 29, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-01448.

Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Naski Jones1 appeals his January 22, 2010 judgment of conviction (JOC) for possession with intent to distribute cocaine and related charges. He argues that improper opinion testimony given by a police officer, that he observed a narcotics transaction in a "high narcotics" area, mandates reversal of his conviction, and furthermore that the trial court erred in failing to replace a sleeping juror. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In May 2009, defendant and co-defendant Cashmere Bush were charged under Indictment No. 08-05-01448 with second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count three); third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four); and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, park, or building, N.J.S.A. 2C:35-7.1 (count five). Following a September 2009 jury trial, defendant was found guilty of all counts, and on January 22, 2010, he was sentenced to an aggregate term of nine years imprisonment with three years of parole ineligibility.

We glean the following facts from the trial record. Around 8 p.m. on January 29, 2008, Sergeant Sean Powell of the Newark Police Department was on a clandestine narcotics patrol in an unmarked mini-van near 18th Street and Clinton Avenue, accompanied by Detective Youletta Rainey and Sergeant Whitaker. Powell knew this to be a "high narcotics area" since he had previously made numerous arrests for drugs and weapons there.

Around 11 p.m., Powell observed a male, later identified as Bush, and an unidentified female engage in a brief conversation. The woman handed Bush what appeared to be currency. Bush then walked to a house on 18th Street, knocked on the door and another male, later identified as defendant, answered. Powell then observed defendant go back inside the house, return, and hand Bush "an object." Bush then gave the object to the female, who walked away. She was not apprehended. Powell testified at trial that he believed he witnessed a narcotics transaction.

Powell observed Bush again return to the house, knock on the door, and engage in another exchange with defendant. Powell exited his surveillance vehicle along with Whitaker and Rainey, and they approached the home in their plain clothes, wearing police badges. When they identified themselves as police officers, Bush dropped three vials of cocaine on the porch and attempted to run into the house. Bush was arrested, and an additional ninety-five vials of cocaine were seized from him. As this occurred, defendant looked to the porch from behind the door. Powell asked defendant to come out from behind the door, but he refused, resulting in Powell pursuing him into the hallway of the three-family residence, where defendant dropped a large plastic bag containing 125 vials of cocaine onto the floor. Defendant was arrested, and transported with Bush to police headquarters for processing. The police found $115 on defendant's person and $25 on Bush. A total of 6.8 grams of cocaine was recovered from both defendants.

The officers then obtained consent to search the first floor apartment from the occupants, Keyonda White and Britany Long. White told police that defendant had been in the apartment. No other drugs were found during the search.

At trial, the circumstances surrounding defendant's arrest, and the subsequent search of the residence, were sharply disputed. The State called Powell and Rainey as witnesses, and both testified to their extensive training and experience while employed by the Newark Police Department as narcotics detectives. Powell had received police academy training, Drug Enforcement Agency (DEA) training, and "HIDTA" training, which he explained involves "high intensive drugs," and training in undercover buys and arrests. Both detectives testified that they had observed hundreds of narcotics transactions in their careers, and made hundreds of arrests in narcotics cases.

Powell explained the events leading to defendant's arrest as follows:

[Prosecutor]: Could you explain and point to the jury where Mr. Bush was when he knocked on the door to get whatever item he was getting and you arrested him?

[Powell]: He would knock on the door, standing right here on the porch, and knock on the door and [then] wait both times []- as we arrived at the house Mr. Bush is actually walking down the stairs I think like three or four stairs he was actually walking down the step[s]. We walked up, and [we] identified ourselves, and he dropped the cocaine here, and attempted to run back inside the door.

[Prosecutor]: What happened next?

[Powell]: He was detained and cocaine was recovered from the floor.

Powell further testified that as he was handcuffing Bush, defendant peeked out from behind the door. There was a brief pursuit into the hallway, and defendant then dropped a large plastic bag containing vials of cocaine on the floor. White thereafter signed a Consent to Search form, which was witnessed by her friend Long.

Rainey's testimony largely mirrored Powell's. She similarly testified that she only recalled two females being present in the apartment at the time of the arrest and subsequent search.

Detective Reginald L. Holloway of the Essex County Sheriff's Department qualified as the State's expert in the field of street level narcotics distribution. In response to a hypothetical question based on facts in accord with the police observations of defendant and Bush, and the quantity of individually wrapped vials of cocaine and currency recovered, he opined that their conduct was consistent with the possession of illegal drugs with the intent to distribute them.

Long was called as a defense witness. She acknowledged that she had known defendant for two years and that she was in a relationship with his brother, Marik. On the night in question, she had been visiting her friend White at White's apartment. Long testified that the police burst into the apartment, where several children were also present. She also stated that the officers wielded their guns and pointed them at the adults in the apartment. She never complained to anyone about the alleged impropriety of the search.

Long further testified that the police found drugs inside a box in the hallway of the apartment building. She admitted she did not see the officer find the drugs. On cross-examination, Long was confronted with the Consent to Search form that she signed as a witness, which stated that no evidence was recovered in the apartment. She said it was not a true statement, even though she had signed it. Long also acknowledged that she had not mentioned in her affidavit that several children were present in the apartment.

Maria Jones, who resided on the second floor and was the building manager, was also called as a defense witness. She testified that she knew who defendant was, saw him frequently, and that the police encountered defendant outside the house and brought him inside on the night in question.

Defendant testified, portraying a much different version of events than the State's witnesses. He testified that as he returned home from doing his taxes, Rainey and Powell walked up, told him and Bush to freeze, and started punching Bush. After being detained, defendant claimed they were handcuffed on the porch on their stomachs, and brought into the front room of the house. The police then searched the apartment. Defendant also claimed that the police told White that if she did not consent to a search of her apartment, the officers would "lock all of the adults up" and "take all the kids to DYFS." Defendant admitted that he had several prior criminal convictions, and that he was on probation at the time of his arrest. He denied possessing any drugs, nor did he observe Bush with any.

Powell was re-called by the State as a rebuttal witness. He clarified that there were no children in White's apartment, contradicting both Long and defendant's testimony.

Defendant raises the following issues on appeal:

I. THE IMPROPER OPINIONS BY THE SURVEILLANCE OFFICER THAT HE SAW A NARCOTICS TRANSACTION IN A "HIGH NARCOTICS" AREA INVOLVING AN UNKNOWN BLACK FEMALE, MANDATES THE REVERSAL OF JONES' CONVICTIONS AND A NEW TRIAL

i. References to a "High Narcotics [Area]" were Improper and Irrelevant

ii. The Surveillance Officer's Lay Opinion that He Observed a Narcotics Transaction, Partially Relied Upon by the Prosecutor in his Summation, was Improper

II. SINCE THE TRIAL JUDGE HIMSELF OBSERVED AND ADMONISHED A SLEEPING JUROR WITHOUT FURTHER INQUIRY OR REPLACEMENT OF THE JUROR, JONES' CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

We first consider defendant's contention that the testimony of Powell and Rainey, that the area of their surveillance was a "high narcotics" area, was irrelevant, prejudicial, and amounted to inadmissible other-crimes evidence under N.J.R.E. 404(b). Because the defense concededly did not object when this testimony was presented, we review this argument under the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).

Under N.J.R.E. 401, relevant evidence is proof "having a tendency to prove or disprove any fact of consequence to the determination of the action." Here, the evidence that the neighborhood was a high-crime area was based on the officers' personal observations and experience in the narcotics division, and was relevant to provide background and context to explain their presence at that location.

N.J.R.E. 403(a) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the risk of [ ] undue prejudice . . . ." Therefore, "evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Whether such evidence is admissible is a decision within the judge's broad discretion. Id. at 568 69.

Defendant relies upon a line of Florida cases as support for his contention that the police testimony about a "high crime area" or "high narcotics area" was unduly prejudicial or constituted inadmissible propensity evidence2. We are not persuaded by the Florida cases cited by the defense that such testimony constitutes plain error. Rather, our courts have long accepted "high crime area" testimony in criminal trials. See State v. Artwell, 177 N.J. 526, 531 (2003); State v. Summers, 176 N.J. 306, 315-17 (2003). Further, in this case the testimony was not prejudicial to the defense, which sought to raise an inference that someone other than defendant had left a box of drugs in the hallway of White's apartment building.

Defendant next argues that Sergeant Powell's testimony that he observed a narcotics transaction was admitted in error, and that the corresponding prejudice was compounded when the prosecutor partially relied on it in his summation.

Powell testified that he viewed Bush speak with a female, and then walk up to the porch of the home.

[Prosecutor]: What did you see next, Sgt. Powell?

[Powell]: After he knocked on the door someone answered the door.

[Prosecutor]: Did you see who that person was?

[Powell]: That time, no.

[Prosecutor]: What did you see that person do?

[Powell]: That person closed the door maybe about 30 seconds, and came right back, and handed Mr. Bush something.

[Prosecutor]: And then what did Mr. Bush do with that something in his hand?

[Powell]: He walked back to the female and handed that to the female.

[Prosecutor]: Okay. At that point what did you believe you observed?

[Powell]: A narcotics transaction.

[Defense Counsel]: I object.

[The Court]: Overruled.

Later, Powell testified that he again saw defendant give Bush another object through the doorway.

On cross-examination, Powell admitted that he could not see the denomination of money handed over from the unidentified female. He testified that from his surveillance, he knows when someone is handed money, and he believes it to be the beginning of a narcotics transaction. Rainey also admitted on cross- examination that she could only observe that "something" was handed to defendant.

To be admissible, lay opinion must be based on the perception of the witness and provide evidence that will assist the fact-finder in performing its function. State v. McLean, 205 N.J.438, 456 (2011). Ultimately, the admissibility of lay opinion rests with the discretion of the trial court. State v. LaBrutto, 114 N.J.187, 197 (1989).

McLeanspecifically "address[ed] the permissible scope of lay opinion testimony in the context of prosecutions involving alleged street-level narcotics transactions[.]" McLean, supra, 205 N.J.at 443. In McLean, a police officer witnessed a defendant engage in behavior the officer believed to be a narcotics transaction, and the officer subsequently testified about this belief. Id.at 443. The Court found that the officer's opinion did not fulfill the necessary requirements to qualify as lay opinion, it invaded the fact-finding province of the jury, and reversal of the defendant's conviction and remand was necessary. Ibid.Similar to the present case, when such testimony was offered, defendant's counsel objected, id.at 446, and the purported buyer in the transaction[s] was never located. Id.at 443-44.

Here, Powell exceeded the bounds as outlined for lay witnesses in McLeanwhen he testified that he "believed" he had observed "a narcotics transaction" between the unidentified woman, Bush, and defendant. Powell testified as a lay witness, and the State never sought to offer him as an expert.

We must next determine whether this error in the admission of Powell's opinion testimony warrants reversal of the jury verdict. As with "plain error," an error will be deemed "harmless" unless there is a reasonable doubt that the error contributed to the verdict. Macon, supra, 57 N.J.at 338; State v. Slobodian, 57 N.J.18, 23 (1970). Harmless error will be disregarded on appeal. SeeMacon, supra, 57 N.J.at 337-38.

In the present case we conclude that although Powell's opinion testimony was improper, its admission does not warrant reversal of defendant's conviction. Here, unlike McLean, the State did not rely solely on Powell's inadmissible lay opinion testimony. Rather, it properly produced a duly-qualified expert witness, Holloway, who when posed a hypothetical question that recited the relevant facts in evidence, opined that the cocaine was possessed with the intent to distribute it. SeeState v. Sowell, 213 N.J.89, 99-103 (2013); State v. Odom, 116 N.J.65, 79-83 (1989). When approached by the officers, Bush dropped three vials of cocaine, and ninety-five vials were seized from him upon arrest. An additional 125 similar vials contained in a large plastic bag were dropped by defendant when the officers pursued him into the hallway of the building. Cash totaling $140 was seized from both men following their arrest. Given the overwhelming evidence in the record demonstrating that defendant possessed cocaine with the intent to distribute it, we find the error to be harmless.

Finally, defendant argues, for the first time on appeal, that the trial judge erred in not replacing, or at least further questioning, a juror whom the judge admonished to stay awake at one point during the proceedings. Since defense counsel did not interpose an objection, we again review this argument under the plain error standard. R.2:10-2.

The incident occurred on the second day of testimony, toward the beginning of defendant's rather lengthy direct examination. At the time, defendant was discussing events preceding his arrest, when he was waiting at the house for his brother, Marik, to visit with his new son. Defendant explained that he bumped into Bush at a store, and the two men walked back to the house. Upon returning, they discovered Marik and the child had not yet arrived. They then went back outside, and Marik pulled up.

It was at this point that the judge interrupted the direct testimony of defendant and admonished the juror:

[The Court]: Excuse me one one second, Mr. Hound [ ], you got to stay awake. All right?

[Juror]: All right. All right.

[The Court]: You want to stand up and stretch for a second?

[Juror]: No, I'll be ok.

No further reference to this juror sleeping appears in the record. Defense counsel did not object to the court's handling of the matter, or ever request any further relief. Defense counsel did not suggest a voir dire examination of the alleged sleeping juror to ascertain if he had indeed been listening to the testimony, and no application was made to replace the juror with an alternate.

We have previously held that a court should take corrective action when counsel brings to its attention the fact of a sleeping juror. See State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986) (holding court should have done something more than dismiss, without any explanation, defense counsel's claim that a juror was sleeping); State v. Reevey, 159 N.J. Super. 130, 133 (App. Div.) certif. denied, 79 N.J. 471 (1978), (remanding to conduct a hearing to determine whether juror was sleeping or merely listening to summation and charges with her eyes closed).

Here, the trial judge did not ignore the situation. Once he observed that the juror might be sleeping, without prompting from either counsel, he immediately addressed the juror. There is no indication in the record that this incident was ever repeated, and the juror appears to have only momentarily nodded off, or appeared to have done so, on a single occasion. While certainly the defendant's testimony was of critical importance, the testimony being offered at that juncture was of an inconsequential nature to the crux of his defense. In the context of the entire trial, in the absence of direct evidence that the juror actually slept through critical portions of it, and the absence of a request by defense counsel to take more affirmative measures to assure that the juror had not missed critical evidence, we discern no error.

Affirmed.

1 Defendant is referenced as Naski Jones throughout the briefs and trial transcripts, but as Na'ski Jones on the Judgment of Conviction.

2 Defendant cites the following Florida cases: Fleurimond v. State, 10 So. 3d 1140, 1145 (Fla. Dist. Ct. App. 2009); Morgan v. State, 15 So. 3d 17 (Fla. Dist. Ct. App. 2009); Wheeler v. State, 690 So. 2d 1369, 1371 (Fla. Dist. Ct. App. 1997).