STATE OF NEW JERSEY v. KYLE P. FRAZIER

NOT FOR PUBLICATION WITHOUT THE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.

KYLE P. FRAZIER, a/k/a

SHAWN C. LAVEN,

Defendant-Appellant.

_____________________________

January 6, 2014

 

Argued December 17, 2013 - Decided

 

Before Judges Messano and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-05-0161.

 

Alan I. Smith, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, on the brief).

 

Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).

 

PER CURIAM

After a 2012 jury trial, defendant Kyle P. Frazier was found guilty of the crimes of third-degree possession of methylenedioxymethamphetamine ("MDMA," commonly known as "ecstasy"), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Count Two); and third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Three). Defendant moved for a new trial, which the court denied. The court sentenced defendant to a five-year mandatory extended term, pursuant to N.J.S.A. 2C:43-6(f), with a three-year parole disqualifier on Count Three, and a four-year concurrent term on Count One. The court merged Count Two with Count Three. In this direct appeal, defendant principally argues that the trial court erred in denying his pretrial motion to suppress the drugs and other incriminating evidence police had obtained without a warrant from the home of a friend with whom defendant had been residing. Defendant also contends that the court erred in declining to charge the jury, as an alternative to the counts presented in the indictment, with the disorderly persons offense of failure to make a proper disposition of drugs, N.J.S.A. 2C:35-10(c). Defendant further asserts that the prosecutor's comments during closing argument deprived him of a fair trial. Lastly, defendant contends that the court improperly sentenced him to an extended prison term. Having considered these contentions in light of the record and the applicable law, we affirm.

 

I.

A.

These are the pertinent facts, most of which bear not only upon defendant's guilt, but also upon the suppression issue.

On July 25, 2010, J.C. and M.C.1 informed police officers that they had discovered a cache of drug paraphernalia within their home in Phillipsburg.2 The paraphernalia consisted of, among other things, 561 folds of heroin, 21 pills of MDMA, a stamp, 2 bags of rubber bands, and about 90 blue druggist folds.

The couple found the objects in their basement guest bedroom. Defendant had been staying in that bedroom for about eight or nine months leading up until that time. According to Mr. C., defendant was his childhood best friend who had recently been released from incarceration. The couple had let defendant stay in their home, where they and their then six-year-old son lived, so that defendant could get back "on his feet." The couple's adolescent niece also at times stayed at their residence.

Mr. C. and defendant had an informal unwritten arrangement, in which defendant agreed to pay Mr. C. $200 per month as rent beginning whenever he was able to afford it. The record indicates that at some point during defendant's stay, he had begun to make such payments.

The guest bedroom where defendant slept was located in the couple's basement, next to an open play area for their son. A staircase led from the basement to the ground floor of the couple's home. According to Mr. C., the couple would often enter the basement, not only to gain access to their son's play room, but also because the house's wood stove furnace was located there. In the wintertime, either Mr. or Mrs. C. would regularly enter the basement to tend to the stove.

The couple did not restrict defendant from any part of the home. In fact, because the basement did not have a separate kitchen, bathroom, or laundry, defendant often needed to go into other parts of the home as part of his daily routine. According to Mr. C., defendant typically would be in the home "pretty much every[ ]day" during his stay. Mr. C. did place a restriction on his young son, whom he instructed to not enter the guest bedroom.

The guest bedroom contained a bed, a dresser, and a table, all of which Mr. C. had furnished for defendant's use. It also had two closets, one of which was a walk-in that did not have a door, and another that was smaller but did have a door. A shelf was attached to the wall on the side of the smaller closet. The bedroom door did not require a key, but it had a mechanism on the doorknob that permitted a guest to lock the door from the inside.

On about July 21, 2010, defendant's girlfriend had gone to the residence. Defendant was not present. The girlfriend informed the couple that defendant had been recently incarcerated again, this time in Pennsylvania. She told the couple that she wanted to retrieve her laptop computer that had been left in defendant's bedroom. Based upon what the girlfriend told her, the couple presumed that defendant would not be returning to the house soon.

Shortly after the girlfriend left with her laptop, the couple went into defendant's bedroom to clean it. They were concerned that food and other trash left there might attract rodents or other pests.

After entering the guest bedroom, Mr. C. peered into the open walk-in closet. He saw inside what appeared to be numerous packets of drugs situated on top of the lid of a laundry hamper. Mr. C. then walked into the closet, and upon closer inspection, he saw about twenty to thirty small bags containing a substance that he believed was narcotics. Although he did not know exactly what the substance was, Mr. C. had a sense that it was likely some form of drugs or paraphernalia because of his familiarity with defendant's prior history.

Mr. C. testified that, after discovering the bags in the closet, he felt concerned about his son's safety. Consequently, he decided to store the items in a secure place. Looking around the room, Mr. C. located a lockbox sitting openly on the shelf adjacent to the smaller closet. He knew the lockbox belonged to defendant. Mr. C. also observed a key to the lockbox hanging on a wall, alongside other keys that apparently belonged to defendant.

Mr. C. used the key to open the lockbox. He then went through its contents and counted, by his estimation, about 625 bags of drugs in total, including the bags he had found on the hamper. In addition, Mr. C. discovered that the lockbox also contained a stamp, heroin bags, rubber bands, pills later determined to be MDMA, and defendant's Social Security card.

Mr. C. put back all of the contents inside the lockbox, including the packets he found in the closet. He locked the box, and removed it from the basement guest bedroom. Mr. C. then stored the box up in the rafters of his detached garage. He kept the key with him. Although Mr. C. discussed what he had discovered with Mrs. C., they apparently did not divulge the presence, or the location, of the lockbox to either their son or niece.

Up to four days3 passed after the couple's discovery of the drug items before they decided to call the police. Mr. C. admitted that he was initially reluctant to contact the police because of his close personal relationship with defendant, whom he described in his testimony as "like [a] brother[]." However, the couple eventually decided to contact the police on July 25, 2010 and inform them of what they had found.

About an hour after receiving the call, three State police officers (Sergeant Michael Tutko, Trooper Cobo,4 and Trooper Keith Pellew) responded to the couple's home. Although the dispatch call had only specified that the couple had found "items" of concern, Trooper Pellew was able to gain access to a computer log in the dispatcher's file from his squad car laptop. The log contained more detail, and indicated that the items found were likely drug paraphernalia.

Sergeant Tutko and Trooper Cobo were the first to arrive on the scene. The sergeant first spoke with Mr. C., who briefly explained what he had found in his home. Standing with the three officers in his detached garage, Mr. C. then reached into the rafters. He brought down the lockbox for the officers to observe. Mr. C. then unlocked the box, opened its lid, and showed Sergeant Tutko and Trooper Cobo what was inside.5

At this point, Trooper Pellew arrived on the scene. Mr. C. then brought the three officers into his home. They walked into the basement guest bedroom, where Mr. C. showed the officers where he had found the items. The officers then asked Mr. C. to sign a written statement and complete an incident report, which he agreed to do.

The officers left the house, taking the lockbox with them. Back at the police barracks, Trooper Pellew inventoried the contents from the box. That inventory revealed, among other things, 561 folds of heroin, 21 MDMA pills, a stamp, 2 bags of rubber bands, and about 90 blue druggist folds.

 

B.

Prior to trial, defendant moved to suppress the contraband that had been removed from his guest bedroom. He argued that the police should not have taken the lockbox and its contents from the premises without a warrant. The State countered that a warrant was not required because the police had no involvement in Mr. C.'s private search of defendant's bedroom, and that once Mr. C. had displayed the contraband to the officers in the garage, they were justified in removing those items under the "community caretaking" exception recognized under the Fourth Amendment.

The trial judge, Ann R. Bartlett, J.S.C., considered these arguments at the one-day suppression hearing, at which Mr. C. and Mrs. C. testified, as well as Trooper Pellew. Defendant did not testify or call any witnesses. After considering the testimony and various exhibits, Judge Bartlett denied the suppression motion in a detailed written opinion and a related order dated January 3, 2012. The judge agreed with the State that the warrantless police seizure of the contraband was justified under the community caretaking doctrine. Among other things, the judge found that the heroin and other contraband were inherently dangerous items that the police had ample reason to confiscate immediately.

The case proceeded to a four-day jury trial in February 2012, during which the drugs and the other contraband were admitted into evidence. Defendant did not testify or present any witnesses. During the charge conference, defense counsel requested that the court instruct the jury on the elements of N.J.S.A. 2C:35-10(c) (failure to make a lawful disposition of a controlled dangerous substance), which counsel characterized as a "lesser-included" offense. Judge Bartlett rejected that request.

As we have already noted, the jury found defendant guilty of all three counts charged in the indictment, and the judge imposed the aforementioned five-year custodial sentence. This appeal ensued, in which defendant presents the following points for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE SEARCH OF THE LOCK BOX IN THE GARAGE INVOLVED STATE ACTION AND BECAUSE THE PURPORTED "COMMUNITY CARE-TAKING" FUNCTION WAS A PRETEXT TO CONDUCT AN UNLAWFUL WARRANTLESS SEARCH.

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO INSTRUCT THE JURY ON "FAILURE TO MAKE [A] LAWFUL DISPOSITION" AS A LESSER INCUDED OFFENSE.

 

 

 

POINT III

 

COMMENTS MADE BY THE PROSECUTOR IN SUMMATION IMPROPERLY DIMINISHED THE STATE'S BURDEN OF PROOF.

 

POINT IV

 

IMPOSITION OF AN EXTENDED TERM SENTENCE ON DEFENDANT'S CONVICTION FOR POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.

 

We address these issues in turn.

II.

A.

The main issue before us concerns the police's warrantless seizure of the drugs and other contraband Mr. C. took out of the guest bedroom. Our analysis of this issue largely focuses upon the community caretaking exception invoked by the State and relied upon by the trial court. We also consider the State's argument raised in a supplemental filing pursuant to Rule 2:6-11(d), asserting that this court's recent opinion in State v. Wright, 431 N.J. Super. 558 (App. Div. 2013), separately justifies the admission of the seized items under what is known as the "third-party intervention" doctrine.6 Our ensuing discussion examines those two separate strands of search and seizure law and the most recent case law that bears significantly upon those subjects.

1.

It is well settled that under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Shaw, 213 N.J. 398, 409 (2013). The State has the burden of proving "by a preponderance of the evidence the validity of a warrantless search." Shaw, supra, 213 N.J. at 409 (quoting State v. Edmonds, 211 N.J. 117, 128 (2012)). We agree with Judge Bartlett that the State met its burden of doing so here.

The community caretaking doctrine relied upon by the trial court is a long-standing exception to the constitutional warrant requirement. The United States Supreme Court first recognized the exception in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). In essence, the exception reflects a notion that police have a legitimate function "to ensure the safety and welfare of the citizenry at large." State v. Diloreto, 180 N.J. 264, 276 (2004) (citation omitted). That police function spans "a wide range of social services, such as aiding those in danger of harm, preserving property, and creat[ing] and maintain[ing] a feeling of security in the community." State v. Bogan, 200 N.J. 61, 73 (2009) (citations and internal quotation marks omitted).

The community caretaking exception has two recognized elements. First, the police officers' actions must be distinct from the investigation of a crime and cannot be a pretext for an investigatory search. See Cady, supra, 413 U.S. at 441, 93 S. Ct. at 2528, 37 L. Ed. 2d at 715; Diloreto, supra, 180 N.J. at 275-76. Second, the officers' actions must be "objectively reasonable under the totality of the circumstances." Diloreto, supra, 180 N.J. at 278; see also Bogan, supra, 200 N.J. at 81.

In finding that both elements of the community caretaking exception were met here, Judge Bartlett substantially relied upon this court's application of the exception in State v. Navarro, 310 N.J. Super. 104 (App. Div.), certif. denied, 156 N.J. 382 (1998). The pertinent facts in Navarro have significant parallels with the case at bar. There, the defendant's landlord came unexpectedly to a local station house and advised the police that she had discovered a gun in the defendant's bedroom. Id. at 106. The bedroom was located within the same apartment that the landlord occupied with her small children. Ibid. Upon learning that defendant had previously shown a gun to her niece, the landlord went into his bedroom to look for the weapon. Id. at 107. She observed a metal box in his closet, pried it open with a screwdriver, and found inside the box the reported gun, along with rounds of ammunition. Ibid. The landlord told the police that she wanted to determine whether the gun was real or a toy, fearful that defendant would soon return from work to the apartment and potentially endanger the children. Id. at 106.

The police in Navarro initially declined the landlord's request, as they were reluctant to enter defendant's apartment. Ibid. In response, the landlord became upset and told the officers that she would retrieve the gun herself. Ibid. At that point, the police agreed to accompany the landlord to the residence because they were concerned that she might endanger herself and others by handling an unfamiliar weapon. Ibid. The landlord then took the police into the defendant's room. Ibid. She opened the closet, pulled out the metal box, placed the box on the bed, and opened it. Ibid. She pointed to a sock in the box, which appeared to have something inside of it. Id. at 106-07. An officer examined the sock and found the gun and eight rounds of ammunition inside. Id. at 107. The officers then confiscated the items. Id. at 108.

We upheld the police officers' actions in Navarro as "a reasonable exercise of their community caretaking responsibilities." Id. at 109. Among other things, we noted that the officers "had a justifiable concern that [the landlord] could [have] injure[d] herself or others if the object turned out to be a gun." Ibid. We recognized the police could have had "a legitimate concern that [the landlord's] discovery of a gun among defendant's personal belongings could [have] precipitate[d] a violent confrontation . . . upon his return from work." Ibid. Finally, we pointed out that the landlord's possession of the gun while removing it from the apartment could have constituted a criminal offense, because she lacked a permit to carry it. Ibid.

Recently in State v. Vargas, 213 N.J. 301 (2013), the Supreme Court announced certain restrictions upon the application of the community caretaking exception in a residential setting.7 Vargas involved the warrantless police entry and search of a tenant's apartment, based upon information received from the landlord that he was late on his rent, had not been recently seen on the premises or moved his car, and that his mailbox was full. Id. at 307. After knocking on defendant's front door and hearing no response, the officers went into the apartment looking for defendant or signs of foul play. Id. at 308. The police searched the apartment in defendant's absence and found marijuana plants. Ibid. They obtained a search warrant and subsequently found other incriminating items in the dwelling, including firearms, other drugs and drug paraphernalia, and substantial cash. Id. at 308, 308 n.4.

The majority in Vargas rejected the State's invocation of the community caretaking exception because the warrantless search had not been justified by either: (1) valid consent or (2) probable cause and exigent circumstances. Id. at 321. Recognizing the heightened privacy expectations that a person generally has in his or her own dwelling, the Court clarified the contours of the community caretaking doctrine. It specifically held that "[w]ithout the presence of consent or some species of exigent circumstances, the community-caretaking doctrine is not a basis for the warrantless entry into and search of a home." Ibid.; see also Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).

Before analyzing the present case under these now-clarified facets of the community caretaking doctrine, we should first note the somewhat related limitations recently placed upon residential searches in Wright, supra, under the third-party intervention doctrine.8 Wright explains that this doctrine, sometimes called the "private search" doctrine, excuses the police from obtaining a warrant in certain circumstances where they have been presented with incriminating evidence as the result of the independent actions of a private citizen.

The third-party intervention doctrine stems from the United States Supreme Court's long-standing recognition that the Fourth Amendment fundamentally protects defendants only from governmental intrusions on their privacy. Absent such sovereign action, the Fourth Amendment and the related search-and-seizure provision of the New Jersey Constitution are generally inapplicable. See, e.g., United States v. Jacobsen, 466 U.S. 109, 114, 104 S. Ct. 1652, 1656-57, 80 L. Ed. 2d 85, 94 (1984); W.W. v. I.M., 231 N.J. Super. 495, 509 (App. Div. 1989); State v. Pohle, 166 N.J. Super. 504, 508-09 (App. Div.), certif. denied, 81 N.J. 328 (1979). The constitutional warrant requirement, however, does apply when a private search is conducted at the behest of police officers. Cf. State v. Scrotsky, 39 N.J. 410, 415-16 (1963).

Although not frequently mentioned in case law, the third-party intervention doctrine has occasionally been applied in this State as a discrete exception to the warrant requirement. See, e.g., State v. Saez, 268 N.J. Super. 250, 270-79 (App. Div. 1993) (D'Annunzio, J.A.D., dissenting), rev'd and adopting the dissent, 139 N.J. 279 (1995); State v. Frank, 112 N.J. Super. 592 (App. Div. 1971). In essence, the doctrine generally signifies that unless a private actor's search has been prompted by law enforcement authorities, a criminal defendant cannot insist that the fruits of that search be suppressed. However, he or she may have recourse against the private actor for trespass or other claims under civil law.

Our decision in Wright imposed a limitation on these private-search principles, predicated upon the decisional law of the Supreme Courts of the United States and New Jersey exalting the heightened privacy of individuals in their personal dwellings. Wright, supra, 431 N.J. Super. at 563-64. Wright factually involved a landlord who had entered a tenant's apartment unit with a plumber at her request in order to repair a sewage leak. Id. at 566. When the landlord and the plumber got inside the unit, they discovered what appeared to be drugs in open view in the tenant's bedroom, which she at times shared with defendant. Id. at 566-67. The landlord notified the police and let them into the apartment to confirm his discovery of the apparent drugs. Id. at 567. The police did not exceed the scope of the landlord's intrusion or observations. Ibid. After the tenant arrived home, the police obtained her consent to a more expansive search of the apartment. Id. at 568. During that more extensive search, they uncovered other contraband. Id. at 569.

We held in Wright that that the third-party intervention exception doctrine does not justify a warrantless search resulting from a landlord or other third party's entry into a private residence if the entry was (1) illegal or unauthorized, or (2) in violation of the resident's property rights or reasonable expectations of privacy. Id. at 588. In addition, even if the private entry is not illegal or unauthorized, the third-party intervention doctrine does not apply if the intrusion by the private actor and law enforcement officials, taken as a whole, is objectively unreasonable.9 Id. at 588.

Applying those principles, we concluded in Wright that the items obtained from the apartment without a warrant did not need to be suppressed in that case because (1) the landlord had not violated the tenant's privacy rights or acted unlawfully by entering the unit and bedroom to repair the leak that she had reported; (2) the landlord further acted reasonably in showing police the apparent contraband that he had seen in the bedroom in open view; and (3) the overall conduct of both the landlord and the police was objectively reasonable. Id. at 588-95.

2.

With this updated case law in mind, we turn to the incriminating items discovered by Mr. C. and turned over to the police in this case. We do so by first analyzing Mr. C.'s initial search and seizure of the items from the guest bedroom closet and then, second, discussing the additional contraband he found in the lockbox. In performing that fact-specific analysis, we must accord considerable deference to Judge Bartlett in her role as fact-finder at the suppression hearing. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

The denial of defendant's motion to suppress the folds of heroin found in the closet was clearly proper under the third-party intervention doctrine. Defendant, having been absent from the residence for several days because of his incarceration out of State, had no legitimate privacy expectation to prevent Mr. C. and Mrs. C. from accessing the closet during his absence. The couple had ample reason to go into the bedroom and closet to clean it and to be sure that no food or trash was left there. The door to the bedroom was unlocked, and the basement was regularly accessed by all persons who were living in the household. Defendant was only a temporary guest in the couple's home, not a formal tenant having an arms-length lease.

When Mr. C. initially went into the closet, he did not rummage through defendant's belongings. Instead, Mr. C. saw the packets in open view on top of the hamper. Once Mr. C. had found the heroin packets in the closet, he acted reasonably in removing them so that they would be safely away from his minor son and his niece. We discern nothing in Wright that would invalidate Mr. C.'s private search, nor in the police involvement that it precipitated. In addition, for the reasons we explain, infra, we also discern no violation of community caretaking principles.

As Judge Bartlett's written opinion recognized, Mr. C.'s subsequent action in opening defendant's lockbox and in searching its contents is, at least at first blush, more problematic. As the judge found, the lockbox was "obviously [defendant's] private personal property." She added that "[i]n unlocking and opening it, [Mr. C.] exceeded the bounds of even friendship and invaded [d]efendant's privacy." Given that unassailable finding, the opening of the lockbox fails Wright's third-party intervention standard, because the private actor, Mr. C., clearly infringed upon defendant's privacy interests.10

Nevertheless, as Judge Bartlett also correctly reasoned, the police's removal of the box and its contents from the residence was constitutionally justified under the community caretaking doctrine. The police did not orchestrate the private search of defendant's quarters or of his lockbox. They were presented by Mr. C. with the box and its displayed contents in the detached garage, not in defendant's bedroom. Having been shown over 500 packets of heroin, bullets, MDMA, and other contraband, the police were justified in removing those items for safekeeping, particularly given the fact that a minor child also lived in the home.

Defendant argues that the circumstances here fail to rise to the level of an "emergency," as that concept was recently elucidated in Vargas. He emphasizes, in particular, the up to four-day delay before Mr. C. called the police and the fact that the lockbox had been placed in the rafters before the police arrived. We need not resolve the emergency question here, however, because we are satisfied that the removal of the box was nevertheless constitutionally permissible, either in the presence or absence of an emergency.

The emergency element of Vargas does not have to be proven by the State here because the police were provided with the contraband in Mr. C.'s detached garage, not in defendant's guest bedroom. Mr. C. surely had the authority to consent to the police entering his own garage. As the trial judge specifically found, the lockbox was reopened by Mr. C., not by the police. Once they were shown the contraband significantly before their own warrantless search of defendant's personal living space the police had a reasonable public-safety basis to confiscate the illegal items for safekeeping and inventorying. We agree with Judge Bartlett that the situation is very much akin to that in Navarro, a precedent that, as defense counsel acknowledged at oral argument before us, was not repudiated by the Court in Vargas.11

For these many reasons, we affirm the denial of the suppression motion.

III.

Defendant next contends that his due process rights were violated by the trial court's failure to instruct the jury on the elements of the disorderly persons offense of failure to make a proper disposition of drugs, N.J.S.A. 2C:35-10(c). We disagree.

Defendant imprecisely characterizes N.J.S.A. 2C:35-10(c) as a "lesser-included" offense of the possessory narcotics offenses charged in the indictment. N.J.S.A. 2C:35-10(c) requires that the State prove that an individual knowingly possessed a CDS, and also that he or she failed to deliver that CDS to authorities. This second element is an additional requirement not present in N.J.S.A. 2C:35-10(a)(1) for the possession of illegal substances. As such, the related supplemental charge does not fall within N.J.S.A. 2C:1-8(d)(3), which would otherwise permit it to be included as a lesser-included offense, as defendant claims. Similarly, the circumstances here do not permit the proposed charge to fall within either subsections (1) or (2) of the same statute. N.J.S.A. 2C:1-8(d)(1) and (2). Consequently, the trial court had no obligation to instruct the jury on this separate offense. Cf. State v. Zelichowski, 52 N.J. 377, 383-85 (1968) (affirming the propriety of the trial judge's determination to include, on the basis of certain supporting evidence, jury instructions for a lesser-included offense).

Moreover, the trial court likewise had no obligation to charge the jury here with N.J.S.A. 2C:35-10(c) as a "related" (rather than "lesser-included") offense. This analysis pertains when the claim is made that the trial court should instruct the jury in respect of an offense that is related to, but not included within, the offenses charged in the grand jury indictment. State v. Thomas, 187 N.J. 119, 132-33 (2006). Case law refers to instances where related offenses share a common factual ground with the crimes charged in the indictment, but not a commonality in statutory elements. Ibid. Moreover, even where a defendant desires the instruction, the charge is inappropriate if there is no clear rational basis in the evidence to suppose that related offense. Id. at 133.

Here, the trial judge justifiably concluded that the proofs lacked a sufficient rational basis to grant defendant's request for the disorderly persons jury charge. The judge fairly concluded that the evidence did not support a reasonable inference that defendant had left the heroin and MDMA in the basement out of some failure to dispose of them lawfully. Quite simply, the gravamen of defendant's wrongdoing here was his illegal possession of the CDS, not his failure to "dispose" of those drugs. See, e.g., State v. Patton, 133 N.J. 389, 401 (1993) ("Despite the absence of a clear indication of its purpose, we are persuaded that in enacting N.J.S.A. 2C:35-10(c) the Legislature intended to . . . creat[e] [an] appropriate disorderly persons offense[] for possession of small quantities of certain drugs . . . to permit the use of prosecutorial discretion in the charging and screening process." (emphasis added) (citation and internal quotation marks omitted)). The present case does not involve "small quantities" of drugs. The trial judge did not err in denying the request to charge.

IV.

Defendant's remaining arguments concerning the prosecutor's remarks during summation and the extended-term sentence lack sufficient merit to warrant discussion. R. 2.11-3(e)(2).

As to the closing argument, the prosecutor's fleeting verbal misstep in commenting upon defendant's inability to discredit the State's proofs did not have the "clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960) (citing State v. Bucanis, 26 N.J. 45, 56 (1958); State v. Corby, 28 N.J. 106, 108 (1958)).

As to the extended-term sentence, the five years imposed were clearly justified under N.J.S.A. 2C:43-6(f), particularly in light of defendant's prior drug offense history. We will not second-guess the judge's sentencing analysis. State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Kirk, 145 N.J. 159, 175 (1996).

Affirmed.

 

1 For privacy reasons, we shall use initials as well as the respective terms "Mr. C." to refer to J.C. and "Mrs. C." to refer to the M.C., neither of whom were charged with any wrongdoing.

2 Title to the home was apparently in the name of Mrs. C.'s parents. According to Mr. C., he and his wife were in the process of buying the house from his in-laws.

3 The testimony in the record varies as to the actual number of days. The trial judge's opinion stated that the time interval was one to four days.

4 The record does not reveal Trooper Cobo's first name.

5 At the suppression hearing, the parties disagreed as to who opened the lockbox. Defendant alleged that it was the police officers who opened the box, while the State maintains that it was Mr. C. In her written opinion denying the suppression motion, the trial judge credited Mr. C.'s version of the events, which attested that he, and not the officers, opened the lockbox. The judge specifically found that "[h]is testimony about who opened the box was the only sure and satisfying testimony on that point. The court finds that it was Mr. [C.] who performed that act [of opening the box]."

6 At our request, defendant submitted a supplemental brief responding to the State's reliance upon Wright, and both counsel discussed the potential impact of Wright at oral argument.

7 The Court's discussion in Vargas, issued on March 18, 2013, post-dates the seizure of the contraband in this case and the trial court's suppression ruling in 2012. We presume, solely for the sake of discussion, that the limiting principles set forth in Vargas apply to this case, which was on direct appeal in March 2013, but was not yet briefed.

8 Like Vargas, the precedential opinion in Wright was issued in 2013, after the police conduct in this case and the trial court's suppression ruling. Again, we make no pronouncement about Wright's potential retroactivity.

9 We also noted that the propriety of the private party's intrusion may be affected by whether the suspect items "lack[ed] a nexus to [the individual's] ownership concerns." Id. at 594.

10 We recognize that the landlord in Navarro went even further and pried open the defendant's box with a screwdriver. Navarro, supra, 310 N.J. Super. at 107. However, as we recognized in Wright, the analysis in Navarro rested upon the community caretaking exception, not the third-party intervention exception. Wright, supra, 431 N.J. Super. at 588 n.14 (citing Navarro, supra, 310 N.J. Super. at 108-10).

11 In fact, the Court's opinion in Vargas cites Navarro in several places, see Vargas, supra, 213 N.J. at 309, 326, although the Court does not explicitly reaffirm that Navarro is good law.