STATE OF NEW JERSEY v. YASIN SIMMS

NOT FOR PUBLICATION WITHOUT THE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.

YASIN SIMMS,

Defendant-Appellant.

_________________________________________________

February 11, 2014

Submitted February 4, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-02-0378.

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

At trial, the State offered the testimony of Detectives Michael Ruzzo and William Warner that, on September 15, 2009, they were conducting surveillance near a public housing complex in Atlantic City. On that occasion, Detective Ruzzo observed a silver-colored vehicle pull up and park; the driver reclined his seat until he was no longer visible, but he occasionally raised his head to look around. Based on experience, Detective Ruzzo suspected the driver intended to purchase illegal drugs. Before long, Detective Ruzzo observed a red-colored vehicle pull up alongside the curb directly in front of the silver vehicle, so the two vehicles faced each other. The driver of the red vehicle later identified as defendant exited his vehicle, leaned into the silver vehicle and handed the driver later identified as defendant Sean Atkinson an object in exchange for what appeared to be currency. Detective Ruzzo directed other nearby officers to close in and detain defendant and Atkinson.

As Detective Warner arrived, he also observed defendant lean into the silver car and then place an item in his right rear pocket. In addition Detective Warner observed a package, which was later confirmed to contain heroin, on the passenger seat of the silver vehicle. He searched defendant and seized a $100 bill from his right rear pocket.

Meanwhile, Detective Ruzzo entered the area from the opposite direction. Upon approaching the red vehicle, Detective Ruzzo observed, in the front passenger seat, a female later identified as defendant Monae Butcher stuffing an item into the rear of her pants. That package, which was later found to consist of thirteen bags of heroin, was retrieved when Butcher was searched.

The three participants were indicted and charged with various drug offenses. After an unsuccessful motion to suppress evidence obtained from the warrantless search, defendant and Butcher were tried jointly over the course of four days in the fall of 2010. Defendant was convicted of two counts of second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, third-degree CDS possession, N.J.S.A. 2C:35-10(a)(1), two counts of third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(3), and two counts of third-degree CDS possession with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.

The State successfully moved for the imposition of an extended term pursuant to N.J.S.A. 2C:43-7. After appropriate mergers, the judge imposed concurrent ten-year prison terms, subject to five-year periods of parole ineligibility, on two of the CDS distribution convictions.

Defendant appeals, arguing:

I. THE POLICE OFFICER FACT WITNESSES IMPROPERLY OFFERED OPINION TESTIMONY THAT A DRUG TRANSACTION HAD TAKEN PLACE. THE ADMISSION OF SUCH TESTIMONY NOT ONLY DENIED THE JURY THE OPPORTUNITY TO SERVE AS THE JUDGES OF THE FACTS, BUT DENIED MR. SIMMS A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (Partially Raised Below).

II. BY IMPROPERLY INCORPORATING AN ACT OF DISTRIBUTION AS AN ASSUMED "FACT" IN THE HYPOTHETICAL POSED TO ITS DRUG EXPERT, THE STATE ELICITED AN EXPERT OPINION THAT INVADED THE JURY'S EXCLUSIVE PROVINCE AND IMPERMISSIBLY BOLSTERED THE STATE'S FACT EVIDENCE. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9 AND 10) (Not Raised Below).

III. THE SENTENCE IS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING THE MAXIMUM TERM OF TEN YEARS WITH A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I.

In Point I, defendant argues the detectives were erroneously permitted to utter the words "sale," "transaction," and "C.D.S. transaction" in their description of the facts. The one objection asserted at trial, however, did not preserve the argument defendant now poses and, thus, the testimony in question must be viewed in the context of whether it was clearly capable of producing an unjust result. R. 2:10-2. We reject defendant's contention that a new trial is required; indeed, we find no error at all.

State v. McLean, 205 N.J. 438, 460-61 (2011), upon which defendant chiefly relies, did not create a ban on all uses of these words by lay witnesses. Instead, the McLean Court explained it was concerned with a police officer, who, "after giving a factual recitation," testifies "the transaction he or she saw was a narcotics sale." 205 N.J. at 461. That is not what occurred here.

Specifically, defendant refers to the testimony of Detective Ruzzo, from whom the prosecutor elicited information about the location of the events through reference to a map that depicted a line encircling the area where the arrests were made. Detective Ruzzo testified "the transaction took place, well inside that circumference" (emphasis added).1 Defense counsel then objected to the word "transaction," but only because he thought it should be rephrased as "the alleged transaction." Without directly ruling on that objection, the judge rephrased the question, asking Detective Ruzzo whether "[w]here you made the arrest and the observations you described" were within 1000 feet of the school zone, and Detective Ruzzo responded: "yes."

Defendant has also referred to that part of Detective Warner's testimony, when he recounted that he was told when Detective Ruzzo directed him and other officers to close in that "a C.D.S. transaction was taking place" (emphasis added).2 Defense counsel did not object to this testimony.

Defendant now argues, in his misplaced reliance on McLean, that the uttering of "sale," "transaction" and "C.D.S. transaction" constituted improper expert testimony masquerading as lay testimony that these words were suggestive of the nature of the events that transpired and, ultimately, was an attempt to convey the witness's opinion of defendant's guilt. We disagree.

Context is everything. The word "sale" was used but only during Detective Ruzzo's testimony about whether the event occurred within a school or public housing zone. The word "transaction" was uttered in this same context. Moreover, defendant's objection was not that the word "transaction" was offered to convey the detective's belief in defendant's guilt but was based on the detective's failure to preface it with the word "alleged." And Detective Warner only used the phrase "C.D.S. transaction" in responding to questions about what Detective Ruzzo described to him at the time he directed the other officers to move in and detain the participants.

We find no error in the admission of this testimony. And, even if we were to find its admission erroneous, we find the brief utterances of the words in question were not clearly capable of producing an unjust result.

1In earlier testimony along the same lines, the prosecutor asked Detective Ruzzo "whether the sale in the case took place within a zone?" (emphasis added), and Detective Ruzzo responded, "Yes, a school zone and public housing zone."

2Earlier, Detective Warner testified that Detective Ruzzo reported to him "he was possibly observing a C.D.S. transaction."