STATE OF NEW JERSEY v. LAMAR BROWN

NOT FOR PUBLICATION WITHOUT THE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.

LAMAR BROWN, a/k/a LAMAR BRYANT,

Defendant-Appellant.

_________________________________

January 3, 2014

Submitted June 11, 2013 Decided

Before Judges Fisher and Grall.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-2312.

Joseph E. Krakora, Public Defender,

attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

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

The opinion of the court was delivered by

GRALL, J.A.D.

Defendant Lamar Brown appeals, challenging his convictions and his sentence. Brown and Eric Aikens were tried together on a single indictment charging fifteen crimes involving controlled dangerous substances (CDS) that were committed on May 28 and 30 and June 5 and 6, 2009. Three counts five, seven and nine were dismissed prior to trial. The jury convicted Brown of nine counts and Aikens of seven. This is Brown's appeal, and it was submitted to us with Aikens' separate appeal, also decided today. State v. Aikens, No. A-5568-10 (App. Div. Dec. XX, 2013).

Both Aikens and Brown were charged with and convicted of crimes committed on May 30, 2009: second-degree conspiracy to possess CDS and possess CDS with the intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5a(1), b(3) (count four); and second-degree distribution of CDS, cocaine, within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count six).1

Brown, but not Aikens, was charged with crimes committed on May 28 and June 5. The jury found Brown guilty of two crimes committed on May 28 and four committed on June 5, 2009. The May 28 crimes were third-degree possession of CDS (count one) and third-degree distribution of CDS (count two). The June 5 crimes were possession of CDS (count seven), possession of CDS with intent to distribute (count eight), possession of CDS with intent to distribute within 500 feet of a public park (count ten) and fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count eleven). Brown's aggregate term is ten years.

The judge merged Brown's convictions for the crimes committed on May 28 and sentenced him to a five-year term of imprisonment for third-degree distribution. Additionally, the judge merged Brown's convictions for the crimes committed on May 30 and imposed a ten-year term of imprisonment, five to be served without possibility of parole, for distributing CDS within 500 feet of a public park. Finally, the judge merged Brown's convictions for possession of CDS on June 5 with his sentence for second-degree possession of CDS with intent to distribute on that date. For the crimes committed on June 5, the judge sentenced defendant as follows: third-degree possession of CDS with intent to distribute, five years; second-degree possession of CDS with intent to distribute within 500 feet of a public park, five years, five without parole; and possession of drug paraphernalia with intent to distribute, eighteen months. All of Brown's sentences are concurrent with another. Thus, his aggregate term is ten years, five without possibility of parole.

The trial was brief, and the State's evidence was not complicated. On May 28, Detective Clothy Ortiz, who was working undercover, called Brown and asked to purchase two twenty-dollar bags of cocaine. Brown directed Ortiz to meet him in the area of South Orange Avenue and Arsdale Terrace in East Orange, and she did. Detective Richards drove Ortiz to the meeting and gave her two marked twenty-dollar bills. Ortiz walked to the front of a building on Arsdale Terrace, where she stood until Brown pulled up in a two-door black Pontiac. Ortiz walked to the driver's side of the car and gave Brown the bills in exchange for two plastic bags that held crack cocaine.

The May 30 transaction generally followed the same pattern, but there were some significant differences. This time, Ortiz named the meeting spot an address on Harrison Avenue that is within 500 feet of a public park. Notably, Aikens was with Brown. Brown arrived in a Lexus, and Aikens was driving. Aikens honked the horn, and when Ortiz approached the car, he asked Ortiz how many she needed. Brown, who was sitting in the passenger seat, opened the glove box and retrieved two small plastic bags of cocaine from a larger plastic bag that contained several smaller bags. Aikens gave the CDS to Ortiz and accepted her payment.

Ortiz also called Brown on June 5 and asked him to meet her at the same place on Harrison Avenue. When Brown arrived, he was driving the Pontiac. Pursuant to warrants, Brown was arrested and the Pontiac was searched. As a consequence of the search, seventeen small bags of cocaine and several additional small, but empty, bags were recovered.

Aikens was arrested on June 6 in Newark. The officers also found drugs in his car.

Brown testified at trial, and Aikens did not. According to Brown, he never met Ortiz on Arsdale Avenue and did not even know where Arsdale Avenue was prior to this trial. Brown also gave an account of his meeting with Ortiz on Harrison Avenue that contradicted the testimony given by Ortiz. He said the detective was wearing "scrubs," not jeans as she had said, and that she had gotten into the Lexus, which she denied doing when asked by defense counsel.

During his testimony, Brown acknowledged that he had three or four prior convictions and had served time in prison. But Brown explained that he had moved on since those convictions and now had a family.

Brown raises four issues on appeal.

I. IT WAS AN ABUSE OF DISCRETION BY THE

TRIAL JUDGE TO DENY DEFENDANT'S

APPLICATION TO SEVER THE TWO DEFENDANTS FOR SEPARATE TRIALS. [Unclear Whether Raised Below.]

II. IT WAS ERROR TO DENY DEFENDANT'S MOTION

FOR A JUDGMENT OF ACQUITTAL.

The Standard for a Motion of Acquittal.

The Evidence at Trial.

III. THE CUMULATIVE EFFECT OF THESE ERRORS

WARRANT[S] A REVERSAL AND A NEW TRIAL.

IV. THE SENTENCE WAS MANIFESTLY EXCESSIVE

AND AN ABUSE OF DISCRETION BY THE TRIAL JUDGE.

Having reviewed the record in light of the foregoing issues, we conclude that the arguments have insufficient merit to warrant discussion beyond the brief explanations that follow. R. 2:11-3(e)(2).

I

Although Brown's appellate counsel indicates that it is unclear whether his client sought severance in the trial court, there is nothing in the record provided on appeal that indicates that either Aikens or Brown moved for separate trials, as required by Rules 3:10-2 and 3:15-2. For that reason, relief is not available absent error that is clearly capable of producing an unjust result. R. 2:10-2. There was no error here.

If a severance motion had been filed, it would have been proper to deny it. These codefendants should have been tried together on all of these charges. "Rule 3:7-6 expressly permits joinder when there is some connection between separate counts rendering the evidence probative of a material issue in another charge." State v. Sterling, 215 N.J. 65, 91 (2013). And "Rule 3:7-7 allows for joinder of defendants who are 'alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" State v. Sanchez, 143 N.J. 273, 281 (1996).

The State's proofs included evidence that Aikens and Brown jointly participated in the second transaction with Detective Ortiz. Moreover, that transaction provided context essential to establish that Brown participated in the transaction made from the Lexus as well as the transaction made from the Pontiac, in which the drugs and paraphernalia Brown possessed on June 5 were found.

Joint trials are preferred, and "[t]hat preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability."

State v. Brown, 170 N.J. 138, 160 (2001). Where, as here, joinder is proper, severance is warranted only when necessary to address prejudice. R. 3:15-2(a)-(b). The question depends upon the balance of "the potential prejudice to a defendant against the interest in judicial economy." Brown, supra, 170 N.J. at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990)).

In this case, there was no apparent or actual risk of prejudice from antagonistic or incompatible defenses. Ibid. These codefendants had the same strategy undermining the credibility of the State's witness. Furthermore, because neither defendant gave the police a statement, there was no question of one defendant's out-of-court statement implicating the other. R. 3:15-2(a).

Brown argues prejudice from the fact that Aikens did not testify. As we understand his argument, it is that Aikens' decision not to testify somehow undermined the testimony Brown gave contradicting that given by Detective Ortiz. Even if we were to assume that Aikens' decision possibly could have had such an impact, we could not conclude the possibility was a sufficiently reasonable one.

II

While accurately stating the standard that the trial court and this court must apply in determining whether a judgment of acquittal is warranted, appellate counsel misapplies the standard. The question is whether a reasonable jury, viewing the State's evidence "in its entirety," and with "the benefit of all" inferences that are reasonable and favorable, could find guilt of the charge beyond a reasonable doubt. State v. Josephs, 174 N.J. 44, 80 (2002); State v. Reyes, 50 N.J. 454, 459 (1967); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979) (standard for constitutionally adequate proof of guilt).

Despite appellate counsel's accurate recitation of that standard and an unexplained reference to a reversal on the ground that a verdict is against the weight of the evidence not requiring an acquittal, appellate counsel argues: "The evidence in the case placed the testimony of the police officers in direct conflict with the testimony of Mr. Brown. Accordingly, a reasonable jury could not find defendant Lamar Brown guilty beyond a reasonable doubt." But a reasonable jury giving the State the benefit of all of its favorable testimony could not have returned a verdict of not guilty.

III

Because Brown has not established error on the grounds asserted in Point I or Point II of his brief, there is no reason to address his claim of cumulative error.

IV

As previously noted, the arguments Brown has offered to establish that his sentence is excessive warrant no more than a brief comment. Defendant had three prior convictions for drug crimes entered between 1998 and 2003. Although the judge did not specifically address hardship to Brown's family, the judge did note that defendant has two children. This court must give deference to the judge's findings on the aggravating and mitigating factors, as well as his balancing of them, because they are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Because the question of merger was not raised on appeal, we have not addressed it.

1 Aikens was convicted of four additional counts that charged him, but not Brown, with third-degree crimes committed on June 6: possession of cocaine (count twelve); possession of cocaine with intent to distribute (count thirteen); possession of heroin (count fourteen); and possession of heroin with intent to distribute (count fifteen). Aikens' aggregate term is six years.