STATE OF NEW JERSEY v. SCOTT M. CAIN

NOT FOR PUBLICATION WITHOUT THE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.

SCOTT M. CAIN,

Defendant-Appellant.

________________________________________________________________

March 21, 2014

 

Submitted October 1, 2013 Decided

 

Before Judges Espinosa and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-04-0603.

 

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

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from his convictions, following a jury trial, on six counts of a seven-count indictment for distribution of cocaine (count one), distribution of heroin (count two), possession of cocaine with intent to distribute (count four), possession of heroin with intent to distribute (count five), possession of cocaine (count six), and possession of heroin (count seven). After the verdict, defendant entered guilty pleas to three unrelated criminal matters pursuant to an agreement that called for the sentences imposed on those matters to be concurrent with each other and the sentence imposed in this case. Following the State's motion, he was sentenced to an extended term pursuant to N.J.S.A. 2C:43-6(f). He appeals from the sentence imposed as well. We affirm.

The evidence presented by the State was compelling proof of defendant's guilt and need not be described in great detail.

Police officers conducting surveillance of defendant's residence observed a hand to hand transaction between defendant and Donald Hinson on July 16, 2008. Hinson was stopped by police and attempted to discard what proved to be .20 grams of crack cocaine. He testified at trial that he had purchased crack cocaine from defendant that day.

Surveillance was also conducted at defendant's residence on July 28, 2008. Officers observed Jeffrey Beckham, who was known to them, standing in front of the house. Defendant pulled up and engaged in a "handshake" with Beckham. The officers followed Beckham and stopped him. A search of his person produced two glassine envelopes of heroin. Beckham testified at trial that he purchased two bags of heroin from defendant on that date.

A search of defendant's residence was executed pursuant to a search warrant. The items seized included: cocaine in both crack and powder form, some of which was in fourteen plastic baggies; heroin, some of which was in ten glassine envelopes; and a scale.

Among the witnesses who testified, the State presented an expert witness, Detective Brett Matthew Rothenberger of the Bergen County Prosecutor's Office Narcotics Task Force. Detective Rothenberger was asked a hypothetical question based upon the evidence and opined that the drugs found within defendant's residence were possessed with the intent to distribute.

After granting the State's motion for an extended term, the trial court merged counts six and seven with count four; sentenced defendant to sixteen years with eight years parole ineligibility on count four; and to concurrent four-year terms on counts one, two and five.

Defendant presents the following arguments for our consideration in this appeal:

POINT I

 

BY IMPROPERLY INCORPORATING TWO ACTS OF DISTRIBUTION AS ASSUMED "FACTS" IN THE HYPOTHETICAL POSED TO ITS DRUG EXPERT, THE PROSECUTOR 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).

 

POINT II

 

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE JURY HEARD EXTENSIVE EVIDENCE THAT POLICE HAD OBTAINED WARRANTS TO ARREST HIM, AND TO SEARCH HIS AUTOMOBILE AND ALLEGED RESIDENCE, AND THAT A LARGE TEAM OF POLICE OFFICERS EXECUTED THE WARRANTS, TO PREVENT DEFENDANT FROM DESTROYING EVIDENCE. ADMISSION OF THIS EVIDENCE WAS PLAIN ERROR AND REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARAS. 1, 9, AND 10. (NOT RAISED BELOW).

 

POINT III

 

THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.

 

After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Because the issues raised in Points I and II are raised for the first time on appeal, our review is limited to a search for plain error, and we will not reverse unless the alleged error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Robinson, 200 N.J. 1, 19 (2009); State v. Nesbitt, 185 N.J. 504, 516 (2006).

I

In Point I, defendant argues that the hypothetical question posed to the State's expert improperly invaded the jury's province. Although no objection was made at trial, we are mindful of the Supreme Court's direction that "even if a defendant does not object, the trial judge has the responsibility both to exclude unnecessary, inadmissible expert testimony and to monitor the use of hypothetical questions when the testimony is warranted." State v. Sowell, 213 N.J. 89, 104 (2013) (citing Nesbitt, supra, 185 N.J. at 514-15).

Detective Rothenberger was asked for his opinion whether or not narcotics were possessed for personal use in the following hypothetical:

Now, let's assume that there's an individual residing in a home. And on the middle of the month someone approaches that home and engages in what appears to be a hand-to-hand drug transaction. That . . . drug transaction occurs just outside the home as opposed to inside. And the person who approached the house, leaves the house and it is stopped within seconds in a short distance from that house, having met somebody there.

 

After that hand-to-hand drug transaction and that stop, that person is found to be in possession of crack cocaine, in a quantity of -- assuming for this hypothetical .20 grams.

 

Further assume, if you would, stopped by police. Further assume, if you would that approximately two weeks after that first drug buy. A second individual, a different individual approaches that same house, and the same individual in that house. A similar transaction occurs, hand-to-hand drug transaction. . . . That second buyer stopped a short distance away from the home again by law enforcement, who on both occasion are surveilling the residence. That second individual is found to be in possession of heroin. Of the amount of heroin is .02 grams.

 

Assume further in these set of hypothetical facts that roughly a week and a half later or so, the search warrant authorized by the Court is acted upon the same residence where law enforcement has been surveilling and those two purchases were made by those two different people.

 

Assume further that when the search warrant is acted upon the individual observed selling is outside the house. That there are three additional occupants within the house. They are an elderly woman, they are a woman in her later twenties and her young son about eight years old. When they enter the home located within the home, assume further, is first of all at a china hutch near that entrance is in a teacup, a small object, ten glassine envelopes suspected to be heroin, and established to be heroin.

 

Further assume that located in a bedroom upstairs there is found in a dresser a rock of crack cocaine, estimated weight slightly over 3 grams. Assume further that in that same room in a closet within a box, and again within another container within that box is a bag of white powder cocaine. Assume that the weight of that white powder is over half an ounce, 15, slightly over 15 grams. Please assume further that in that same box with that powder cocaine are 100 little baggies, purple in color. Assume further that next to those items in that same container is a digital scale about the size of your hand.

 

Lastly assume, well not lastly, but also assume that in that same room is a box of plastic sandwich bags, and assume, please if you would, that the two drug purchasers surveilling on those two previous occasions have also stated that they in fact made those drug purchases from the individual at that house.

 

Defendant contends that this hypothetical created plain error because it impermissibly included assumptions that two drug transactions had occurred and that these were not facts but rather "ultimate issues" only the jury could resolve. We disagree.

An expert is permitted to give an opinion as to intent or purpose regarding drug evidence "as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge[.]" State v. Reeds, 197 N.J. 280, 291 (2009) (emphasis added) (quoting State v. Odom, 116 N.J. 65, 78-79 (1989)). The evidence in this case included the testimony of Hinson and Beckham, who each testified they had purchased narcotics from defendant. There was no error, let alone error capable of producing an unjust result, in the hypothetical question posed.

II

Defendant also argues that it was plain error to admit evidence that the police had obtained a warrant for his arrest and warrants to search his automobile and residence, and that a large team of officers were used to execute the warrants.

In State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Supreme Court rejected the notion that such evidence was prohibited, stating,

[A] properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.

[Id. at 240.]

 

Although such evidence can be prejudicial when it implies the State presented evidence to the judge that was not introduced at trial, State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.), certif. denied, 169 N.J. 605 (2001), that was not the case here. To the contrary, the State linked the issuance of the warrants here to evidence before the jury such as the two drug transactions testified to by Hinson and Beckham. There was, then, no plain error in the statements complained of here.

III

Finally, defendant challenges his sentence. It was undisputed that defendant has an extensive criminal history. Among his twelve indictable convictions in New Jersey are convictions for distribution of cocaine and distribution of controlled dangerous substance within a school zone. He does not contend he was not eligible to be sentenced to an extended term. Rather, he argues that the sentence must be reversed because the State failed to present its reasons for seeking an extended term and why it did not choose to waive an extended term here. This argument lacks any merit.

Although extended terms are ordinarily discretionary with the court, the sentence here was governed by N.J.S.A. 2C:43-6(f), which states in pertinent part that a person, like defendant, who has been convicted of distribution or possession with intent offenses or who has prior convictions for distribution or possession with intent "shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by" N.J.S.A. 2C:43-7(c). The prosecutor made the requisite application and explained at sentencing why the State was seeking the mandatory extended term. Further, it cannot be disputed that defendant had two prior convictions that made him eligible for an extended term.

Defendant also argues that the court's findings of aggravating factors one, two, three, five, six, and nine, N.J.S.A. 2C:44-1(a)(1), (2), (3), (5), (6), and (9), were based solely on his criminal record and therefore lacked sufficient support in the record. The court found one mitigating factor, N.J.S.A. 2C:44-1(b)(11). Defendant does not argue that the court failed to find any mitigating factor that was supported by the record.

We accord deference to the sentence imposed by the trial court, provided "the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Therefore, we turn to the facts relied upon by the trial court to support its findings.

In stating reasons for finding the aggravating factors here, the trial court stated:

The shear [sic] enormity and the nature of this combination of offenses mandates that there should be more stringent penalties that should attach. Just [the offense alleged in count four] alone this is not some isolated small amount of drugs. As the Prosecutor indicated, 100 bags. I mean this was a business. The defendant is in business and people that are in business distributing drugs should be punished severely.

 

Later, when defense counsel asked for the court's reasons for setting a one-half period of parole ineligibility for defendant, the court stated further:

Well, let me say this. It's within the sound discretion of the Court and the sheer amount, the different types of drugs. This was not an isolated situation and isolated, but this was a business being run and in these types of cases where businesses are being conducted there has to be some additional penalty that's imposed, so part of the Court's reasoning is the fact that this is a business and the Appellate Division should be mindful of that, okay.

 

To summarize, the facts in the record relied upon by the trial court to support its findings of aggravating factors are: the enormity and combination of offenses; different drugs were distributed; the quantity of drugs possessed as charged in count four; and the distributions were not isolated incidents but part of a business conducted from defendant's mother's home.

N.J.S.A. 2C:44-1(a)(2) concerns

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

In State v. Lawless, 214 N.J. 594 (2013), the Court reviewed the inquiry applicable to this factor:

N.J.S.A. 2C:44-1(a)(2) compels "a pragmatic assessment of the totality of harm inflicted by the offender on the victim." Although the Legislature did not define "victim" for purposes of N.J.S.A. 2C:44-1(a)(2), the context in which the word is used is instructive. The statutory language denotes the direct interaction between offender and victim -- the "harm inflicted" by the former upon the latter. N.J.S.A. 2C:44-1(a)(2). It focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime. Accordingly, the "victim," for purposes of aggravating factor two, is the individual against whom the offense is committed.

 

[Id. (internal citations omitted).]

Offenses related to the distribution of controlled dangerous substances are not victimless crimes. However, it is clear that the convictions that are the subject of this appeal did not entail the infliction of harm upon any "victim" particularly "vulnerable or incapable of resistance" within the meaning of aggravating factor two. Therefore, we agree with defendant that the record fails to support the trial court's finding that aggravating factor N.J.S.A. 2C:44-1(a)(2) applies to him.

Defendant's convictions are affirmed. We reverse the sentence imposed and remand for a new sentencing hearing at which the trial court will set forth the aggravating and mitigating factors that are supported by the record and impose sentence. We do not suggest that a different sentence must be imposed upon re-sentencing. However, clearly, the sentence may not exceed that which was previously imposed. We do not retain jurisdiction.