STATE OF NEW JERSEY v. EDWIN ARTHUR DRISCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5302-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN ARTHUR DRISCO,1

Defendant-Appellant.

__________________________

February 1, 2013

Argued January 23, 2013 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-02-00132, 09-03-00263 and 10-12-01194.

Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, on the brief).

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Defendant Edwin Arthur Drisco appeals from a March 28, 2011 judgment of conviction (JOC), entered after a jury found him guilty of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and -5a(1), and third-degree CDS possession in a school zone, N.J.S.A. 2C:35-7. He also appeals from the sentence of nine years in prison with a four-year parole bar imposed for this conviction (Indictment No. 09-02-00132). Finally, he appeals from two other judgments of conviction (JOCs), both dated March 28, 2011, which determined the order in which defendant would serve the nine-year sentence and two flat sentences2 arising from guilty pleas in Indictment No. 10-12-01194 and Indictment No. 09-03-00263. He contends that the flat sentences should have been imposed consecutive to the sentence that carried a period of parole ineligibility.

On this appeal, defendant raises the following issues:

POINT I

THE ADMISSION OF "EXPERT" TESTIMONY ON THE ROLE OF A POINTER IN DRUG SALES WAS IMPROPER BECAUSE THE JURORS COULD DECIDE GUILT OR INNOCENCE BASED ON THE STRAIGHTFORWARD FACT TESTIMONY THAT DRISCO RELAYED THE UNDER-COVER'S ORDER TO THE DRUG SELLER.

POINT II

THE MAIN AND SUPPLEMENTAL JURY INSTRUCTIONS MISLEADINGLY HELD OUT THE POSSIBILITY THAT ALLEGED ACCOMPLICE DRISCO COULD BE CONVICTED BASED ON KNOWINGLY AIDING A DRUG DISTRIBUTION, WHEN THE LAW REQUIRED PURPOSEFUL AID.

A. WHERE TRIAL PROCEEDED SOLELY ON THE THEORY THAT DRISCO WAS AN ACCOMPLICE, THE MAIN JURY INSTRUCTIONS NEEDLESSLY ADDED A CHARGE ON PRINCIPAL LIABILITY FOR A KNOWING CONSTRUCTIVE TRANSFER, AND IMPROPERLY FAILED TO DISTINGUISH CONSTRUCTIVE TRANSFER FROM THE AID REQUIRED FOR ACCOMPLICE LIABILITY.

B. RESPONDING TO A JURY NOTE ASKING FOR WRITTEN "ELEMENTS," THE COURT SOLELY PROVIDED THE DISTRIBUTION ELEMENTS, WHICH REQUIRED KNOWLEDGE, AND MISLEADINGLY OMITTED THE ACCOMPLICE LIABILITY ELEMENTS, WHICH REQUIRED PURPOSEFUL AID BY DRISCO.

POINT III

DRISCO'S AGGREGATE SENTENCE WAS IMPROPER BECAUSE HIS PRIOR RECORD WAS DOUBLE-COUNTED, AND THE THREE CONSECUTIVE SENTENCES APPEARED TO BE MIS-ORDERED.

A. THE COURT IMPROPERLY DOUBLE-COUNTED DRISCO'S PRIOR RECORD IN SENTENCING HIM TO AN EXTENDED TERM AND IN USING AGGRAVATING FACTORS THREE, SIX, AND NINE TO SUPPORT A NEAR-MAXIMUM SENTENCE WITHIN THE EXTENDED TERM.

B. THE COURT APPEARED TO INADVERTENTLY MIS-ORDER DRISCO'S CONSECUTIVE SENTENCES BECAUSE IT GAVE NO REASONS FOR RUNNING THE LESS RESTRICTIVE SENTENCES FIRST, WHICH WAS CONTRARY TO A PLEA BARGAIN AND WHICH WILL RESULT IN A LATER PAROLE ELIGIBILITY DATE.

For the reasons that follow, we affirm defendant's conviction and the nine-year term imposed on that conviction. However, we conclude that, perhaps due to clerical errors, the three March 28, 2011 JOCs do not accurately reflect the order in which the judge imposed the sentences at the sentencing hearing on March 18, 2011.

With defendant's agreement, and without objection from the State, we exercise our original jurisdiction to order that the three JOCs be amended to reflect that the sentence of nine years with a four-year parole bar imposed on Indictment No. 09-02-00132 be served first. Accordingly, the three-year flat term imposed in Indictment No. 10-12-01194 shall be concurrent to the four-year flat term imposed in Indictment No. 09-03-00263, and both of those terms (i.e., an aggregate four-year flat term) shall be consecutive to the sentence imposed in Indictment No. 09-02-00132. We remand for the limited purpose of entering amended JOCs consistent with this opinion.

I

Defendant and a co-defendant, Raymond Howard, were tried together on drug charges. In his opening statement, the prosecutor told the jury that the State intended to prove that the co-defendants "worked as a tag team. They worked together with the same purpose and the same intent. . . . and their intent was to distribute drugs and that's what they did."

The trial evidence was brief. Elizabeth Police Officer Gino Quelopana testified that in September 2008, he was working undercover, attempting to purchase illegal drugs on the street. In that assignment, he completed about one hundred undercover "street-level buys." On September 30, 2008, he was dressed in "undercover" clothing and was attempting to purchase drugs on the street, under surveillance by "detectives and fellow officers." On Fifth Street, he saw two men standing together in front of a bodega. The officer exited his unmarked car and walked in their direction. One of the two men, later identified as defendant, approached Quelopana and asked him "[w]hat do you need?" Quelopana replied, "I need two."

According to Quelopana, defendant then "turned to his right" toward the other man, later identified as co-defendant Howard, and told Howard, "get him two." Howard disappeared into an alley behind the bodega for thirty seconds or less. When he re-appeared, he "reached into his waistband and removed an object." Howard then walked over to Quelopana, and the two men engaged in a hand-to-hand drug transaction, in which Quelopana gave Howard twenty dollars and Howard gave him "two glassine envelopes of heroin" stamped with the words "New Arrival."

Immediately after the transaction, Quelopana drove to "an undisclosed meet location" to rendezvous with Detective James J. Malone. At that location, Detective Malone showed him photographs of defendant and Howard, which Quelopana signed and dated to be certain that he could identify the men from whom he had just purchased the drugs. Quelopana identified the photos in court, and testified that he was one hundred percent certain that the men in the photos were the ones involved in selling him the heroin. He also identified the two envelopes of heroin, which were introduced in evidence, together with a lab report identifying the composition of the drugs. Quelopana explained that the police did not arrest the two men on the day of the purchase, in order to avoid "blow[ing] my cover."

On cross-examination, both defense attorneys asked Quelopana questions aimed at demonstrating that their clients had nothing to do with each other. Quelopana was asked whether he saw the two men talking to each other when he first noticed them. He did not recall. Nor did he recall seeing any signals or other form of communication between them at that point. He also admitted "there was no exchange that [he] saw between Mr. Drisco and Mr. Howard," and "there was no exchange between [Quelopana] and Mr. Drisco."

Following a N.J.R.E. 104 hearing, the court permitted the State to present expert testimony from Detective Malone concerning methods of multi-person street level drug dealing and specifically, the role of a "pointer" in those transactions. The judge reasoned that "I don't think all jurors are versed on pointers," just as, in State v. Berry,140 N.J.280 (1995), jurors could not all be expected to understand the role of the "money man" in a drug deal. The judge concluded:

Here, there is no doubt that both defendants will distance themselves from each other. Although they contend that the door was not opened on cross-examination . . . still here the [defense] theory of cross-examination of Officer Quelopana fully demonstrates what's been candidly admitted by both sides; that they are going to distance themselves from each other as is the logical defense here . . . . I think the modus operandi testimony about pointers will . . . enlighten some jurors who, again, although we deal with this every day, they don't.

However the judge strictly limited Malone's testimony to the general issue of modus operandi, and not as to whether these defendants were engaged in drug distribution.

Malone gave brief testimony corroborating Quelopana's description of the drug transaction with defendants, which Malone witnessed from a hidden location. He also confirmed that about fifteen minutes after the transaction took place, he met Quelopana at a secure location, and Quelopana gave Malone the two bags of heroin and identified both defendants' photographs.

Malone then provided equally brief testimony concerning his expertise in the narcotics field and his familiarity with hand-to-hand street level drug sales. He testified that, in his experience, he had seen drug sales where more than one person was "involved in a given sale." He testified that he was familiar with the term "pointer;" Malone explained that "[h]e or she directs a person to someone he or she knows who has drugs for sale."

II

On this appeal, defendant first argues that Malone should not have been permitted to testify as an expert. We reject this argument. This case is virtually indistinguishable from State v. Nesbitt, 185 N.J. 504 (2006), in which the defendant's participation in a drug sale was limited to asking the buyer what he needed and directing a companion to give the buyer what he asked for. Id. at 508. The Court held that expert testimony was admissible to explain "distribution techniques" in multi-person drug deals. Id. at 507.

The Court recently reaffirmed that expert testimony is admissible to explain to lay jurors the role of various participants in multi-person drug sales:

In appropriate cases, experts may also testify about the roles that participants play in street-level drug transactions, such as "why drug dealers use juveniles as 'mules' to carry drugs." State v. Berry, 140 N.J. 280, 301-02 (1995). Similarly, we have admitted expert testimony to explain how a person's actions fit into a drug distribution scheme when the defendant had no personal contact with the drugs or money exchanged. Nesbitt, supra, 185 N.J. at 515. In those and other areas, we recognized that an expert could help the jury assess evidence it was generally unfamiliar with.

[State v. Sowell, ___ N.J. ___ (2013) (slip op. at 13).]

In this case, the expert testimony was extremely limited, addressed only the role of the pointer in a multi-person drug transaction, and did not include an impermissible opinion concerning defendant's guilt. See ibid.; see also State v. McLean, 205 N.J. 438, 453 (2011).

In his Point II, defendant contends that there were errors in the jury instructions. In particular, he contends that, because the State tried the case on a theory of accomplice liability, it was error for the judge to also charge the jury on liability as a principal. However, the evidence would clearly support a finding that defendant was in control of this drug deal and constructively distributed the drugs to Quelopana by giving directions to Howard. See State v. Schmidt, 110 N.J. 258, 272-73 (1988). The judge gave the jury correct instructions concerning both liability as a principal and as an accomplice, including the different mental states (knowing or purposeful) applicable to each. Contrary to defendant's argument, the judge repeatedly reminded the jury that accomplice liability required a finding that defendant acted purposefully. We also find no error in the judge's response to the jury's request for a written list of the elements of the offenses.

To summarize, the case was simple, the evidence of defendant's guilt was overwhelming, and we find no possibility that the court's instructions could have confused the jury or caused a miscarriage of justice. See R. 2:10-2. Defendant's arguments on this point are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant next challenges his sentence, arguing that the court double-counted his record, first to justify an extended term and then to decide the length of the term. We cannot agree. In a detailed statement of reasons, the judge properly considered defendant's four prior convictions for drug distribution or drug possession with intent to distribute, as justifying the mandatory extended term under N.J.S.A. 2C:43-6f. See State v. Thomas, 188 N.J. 137, 150-51 (2006). In determining the length of the sentence, the judge appropriately considered the fact that defendant was on probation when he committed this offense, as well as his lengthy criminal record of CDS and non-CDS offenses, including nine indictable convictions, four non-indictable convictions, and four parole revocations. Id.at 153-54. Despite defendant's record, the judge sentenced him to one year less than the ten years the State requested. We find no error in the sentence. See State v. Bieniek, 200 N.J.601, 611-12 (2010).

Finally, as previously noted, the JOCs must be corrected to reflect that the aggregate four-year flat sentence imposed as a result of defendant's guilty pleas in Indictment No. 10-12-01194 and Indictment No. 09-03-00263 shall run consecutive to the nine-year term with a parole disqualifier imposed on this conviction. We remand only for the limited purpose of entering amended JOCs consistent with this opinion.

Affirmed in part, remanded in part.

1 As his counsel confirmed at oral argument of this appeal, defendant's correct name is Edwin Arthur Drisco. His last name was misspelled as "Driscoll" on his notice of appeal. However, the judgment of conviction and all other pertinent documents in the record spell his last name "Drisco." We have corrected the caption accordingly.

2 A "flat" sentence does not include a period of parole ineligibility.