STATE OF NEW JERSEY v. TARIK H. MADISON

NOT FOR PUBLICATION WITHOUT THE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.

TARIK H. MADISON

a/k/a TARIQ MADISON,

Defendant-Appellant.

____________________________

December 19, 2014

Submitted November 18, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-09-00669.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tarik H. Madison appeals from his conviction for fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a); two counts of third-degree cocaine distribution, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); and two counts of second-degree cocaine distribution within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. He also appeals from the aggregate sentence of nine years with a four-year parole bar.

Defendant raises the following appellate issues

POINT I -DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE EVIDENCE OF DEFENDANT'S "CONSCIOUSNESS OF GUILT" THAT THE JURY WAS PERMITTED TO CONSIDER AS A RESULT OF THE PREJUDICIAL JOINDER OF COUNT EIGHT RESULTED IN HARMFUL ERROR.

POINT II -THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT III -THE AGGREGATE 9 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.

(A)

DEFENDANT WAS NOT AFFORDED THE OPPORTUNITY TO ALLOCUTE.

(B)

IMPOSITION OF 8 YEAR BASE CUSTODIAL TERMS ON DEFENDANT'S CONVICTIONS ON COUNTS SIX AND SEVEN WERE MANIFESTLY EXCESSIVE.

(C)

IMPOSITION OF A CONSECUTIVE SENTENCE ON DEFENDANT'S CONVICTION FOR RESISTING ARREST ON COUNT EIGHT WAS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.

We affirm the conviction. However, the State concedes that a remand is required for resentencing, because defendant was denied the opportunity for allocution prior to the imposition of sentence. Therefore, we remand for a new sentencing hearing at which defendant shall be permitted to address the court.

I

The facts relevant to the severance issue can be summarized briefly. On April 2, 2009, Plainfield Police Lieutenant O'Brien observed a man, who from prior interactions in the community he knew to be defendant, engage in two separate illegal drug transactions at a public housing complex. One transaction, with a man O'Brien knew as Geraude Stewart, occurred at around 3:40 p.m. and the other occurred at about 6:10 p.m. In each episode, a police back-up team stopped and arrested the suspected buyer and found illegal drugs in the buyer's possession. However, the police did not arrest defendant until July 25, 2009.

On that day, Officer Sylvester spotted defendant at the public housing complex. Sylvester knew that there were open warrants for defendant's arrest. On cross-examination he admitted that two warrants were for drug distribution, while others were for traffic infractions and a Family Court matter. Sylvester exited his patrol car and told defendant that he was "bringing him in" on some arrest warrants. He did not tell defendant which warrants were the basis for the arrest, nor did he mention that defendant was charged with drug distribution. According to Sylvester, defendant immediately turned and fled, but was quickly apprehended.

Prior to the trial, defendant moved to sever the resisting arrest charge. He contended that due to the length of time between the alleged drug offenses and the arrest, defendant's flight was not probative of consciousness of guilt on the drug charges, and trying the drug and resisting arrest charges together would result in undue prejudice. After engaging in a Cofield analysis, the judge denied the motion. See State v. Cofield, 127 N.J. 328 (1992).1

At the trial, the State presented testimony from the officers who observed the alleged drug transactions. As previously noted, Lieutenant O'Brien testified that he was familiar with defendant and identified him as the seller. O'Brien's partner did not know defendant at the time, but testified that as the two officers were watching the drug deal occur, O'Brien told him that he recognized the seller as Tarik Madison. The officers testified that after each transaction, defendant got into a white minivan with a Pennsylvania registration. The State also presented testimony from one of the arrested buyers, Geraude Stewart, who stated that defendant sold him the drugs. Stewart admitted that he was testifying pursuant to a plea agreement.

Defendant's live-in girlfriend testified that she was with him all day on April 2, 2009, at their apartment in Easton, Pennsylvania, celebrating the news that she was pregnant with twins. She also testified that defendant, who was thirty-one, had two brothers in their thirties, both of whom lived in Plainfield. She did not testify that either brother resembled defendant.

On cross-examination, the girlfriend admitted that she and defendant were originally from Plainfield, and defendant regularly visited Plainfield to visit one of his children who lived there. She testified that she owned a white minivan with a Pennsylvania license plate, which plaintiff sometimes drove. She admitted that on April 2, defendant may have gone by himself to pick up their son from school; she admitted some difficulty remembering specifics. The girlfriend admitted to her criminal record, including a conviction for selling drugs, and testified that she was "locked up" at the time defendant was arrested.

In his testimony, defendant denied being in Plainfield at the time of the alleged drug sales on April 2, 2009, stating he was at his girlfriend's house in Easton. On cross-examination, defendant admitted that although they lived in Easton, his girlfriend worked at a hair salon in Plainfield, a fact neither of them had mentioned in their direct testimony. He also admitted driving a white minivan with a Pennsylvania license plate. According to defendant, his brother lived in Plainfield and had previously been incarcerated on drug charges. Defendant did not testify that his brother resembled him.

On the resisting arrest charge, defendant testified that Officer Sylvester told him that he "thought" there was an outstanding warrant for him, but did not specify the basis for the warrant. Defendant testified that he ran from Sylvester because he was unaware of any warrants for his arrest, believed the police were harassing him, and was afraid Sylvester would "do something" to him.

In their direct testimony, both defendant and the girlfriend stated that as of April 1, 2009, he had just lost his job and was talking about going back to Plainfield and doing something "stupid." The girlfriend testified that she punched him in the mouth to dissuade him from doing so, and the police were called to break up their domestic dispute. Defendant explained that the April 1 argument was over his desire to go out and do "something negative. Thinking I could get some quick money. I don't know. I just wasn't thinking. Going back to my old ways." Asked what he meant, he explained: "Just basically trying to get some quick cash. . . . Selling drugs I guess." Defendant also admitted to having a prior criminal record.

On rebuttal, the State presented testimony from O'Brien, who knew both defendant and his brother. The officer testified that the brother did not look like defendant. However, on cross-examination, he admitted knowing that the brother was a drug dealer.

The prosecutor did not cross-examine defendant about his flight from Officer Sylvester, nor was that issue mentioned in either side's summation. The court did not give a flight charge, and the record does not indicate that either side requested any charge or limiting instruction concerning flight.

II

Pursuant to Rule 3:15-2(b), "[i]f . . . it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment or accusation the court may order an election or separate trials of counts . . . or direct any other appropriate relief." We review the trial court's decision on a severance motion for abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).

Central to the inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." If the evidence would be admissible at both trials, then the trial court may consolidate the charges because "a defendant will not suffer any more prejudice in a joint trial than he would in separate trials."

[Ibid. (alteration in original) (citations omitted)].

The State argues that defendant's flight was evidence of consciousness of his guilt, and he did not need to know he was being arrested for this particular crime in order to be guilty of resisting arrest. See State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003). The latter point is true but irrelevant. The issue is not whether defendant was guilty of resisting arrest, but whether his flight was evidence of consciousness of guilt of the drug crimes involved in this case.

Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt. Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt.

[State v. Mann, 132 N.J. 410, 418 (1993) (citations omitted).]

However, "[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight or escape mandate careful consideration of the nature of the evidence to be admitted and the manner in which it is presented." Id. at 420. When the court gives a flight charge, it must caution the jury that: "Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment." Model Jury Charge (Criminal), Flight (2010) (emphasis added); see Mann, supra, 132 N.J. at 421.

To infer that defendant's flight from the police officer was evidence of his consciousness of guilt of the crimes charged in the indictment, there must be some evidence to support an inference that defendant knew the officer was trying to arrest him for those offenses. In that connection, we note the Model Jury Charge (Criminal), on flight refers to defendant's flight "shortly after the alleged commission of the crime." Model Jury Charge, supra. Here, the arrest came almost four months after the alleged drug sales, and defendant had outstanding warrants for traffic and Family Court matters.

Given the confluence of circumstances here, the alleged evidence of consciousness of guilt was considerably attenuated from the underlying drug offenses. In these unusual circumstances, we are constrained to conclude that defendant's flight was minimally, if at all, probative of his consciousness of guilt of these drug charges; the potential prejudice outweighed any probative value of the evidence of flight; and therefore the resisting arrest charge should have been tried separately. See R. 3:15-2(b).

However, on this record, we also conclude that the failure to sever the charge was harmless error. See R. 2:10-2; State v. Macon, 57 N.J.325, 336 (1971). As previously noted, the prosecutor did not cross-examine defendant about the resisting arrest charge, or argue to the jury that defendant's attempted flight was proof of consciousness of his guilt. Nor did the judge so charge the jury. The jury was also aware that there were non-criminal warrants outstanding, and hence other reasons for defendant to flee from the officer. Viewed in context, the resisting arrest charge was no more than a footnote in the trial.

Moreover, the proof of defendant's guilt on the drug charges was quite strong. He was identified as the seller, both at the scene and at trial, by a police officer who knew him. In fact, when questioned about whether O'Brien knew him, defendant spontaneously remarked that O'Brien knew him because of "narcotics." Stewart testified that defendant sold him drugs.

Defendant and his girlfriend admitted that he drove a white minivan with a Pennsylvania license plate, which was the type of vehicle the police testified defendant was driving at the crime scene. More importantly, defendant admitted he was a former drug dealer, and he and his girlfriend essentially told the jury that he intended to go to Plainfield on April 2 to sell drugs, because he had lost his job. They claimed the girlfriend talked him out of it. That was not a winning strategy. We conclude beyond a reasonable doubt that defendant would have been convicted of the drug charges even if the resisting arrest charge had been tried separately. Accordingly, defendant's points I and II are without merit.

We affirm defendant's conviction, but remand for a new sentencing hearing.

Affirmed in part, reversed in part.

1 Neither party presented us with copies of the motion papers. At the motion argument, the defense did not raise as an issue the existence of open warrants for offenses other than drug distribution.