STATE OF NEW JERSEY v. BRYON O. WRIGHT

NOT FOR PUBLICATION WITHOUT THE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.

BRYON O. WRIGHT, a/k/a OMAR

WRIGHT, ROGER WRIGHT,

Defendant-Appellant.

__________________________________________________

January 16, 2014

 

Argued September 17, 2013 Decided

 

Before Judges Messano, Sabatino, and Hayden.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-01-0022.

 

Shera T. Friedman argued the cause for appellant (Feinberg and Feinberg, attorneys; Paul H. Feinberg and Ms. Friedman, on the brief).

 

John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief).

 

PER CURIAM

Following a jury trial, defendant Bryon Wright was convicted of distribution of cocaine, N.J.S.A. 2C:35-5(a); distribution of cocaine within 1000 feet of a school zone, N.J.S.A. 2C:35-7; distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1; eluding, N.J.S.A. 2C:29-2(b); and resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The trial judge sentenced defendant to an aggregate term of sixteen years.

Before us, defendant raises the following arguments for our consideration.

POINT I: THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS AND REFUSING TO HEAR EVIDENCE ON ALL ISSUES.

 

POINT II: THE COURT ERRED IN NOT RECORDING ALL SIDEBAR CONVERSATION AND PRESERVING THE RECORD OR, ALTERNATIVELY, THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE FAILURE OF DEFENSE COUNSEL TO [E]NSURE THAT ALL SIDEBAR CONVERSATIONS WERE RECORDED. (NOT RAISED BELOW).

 

POINT III: THE COURT ERRED IN NOT CHARGING CROSS RACIAL IDENTIFICATION OR, ALTERNATIVELY, THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AS DEFENSE COUNSEL DID NOT RAISE THE ISSUE OF CROSS RACIAL IDENTIFICATION UNTIL SUMMATIONS.

 

POINT IV: THE COURT ERRED IN NOT GRANTING A MISTRIAL FOLLOWING TWO HUNG JURY VOTES.

 

POINT V: THE PROSECUTOR'S MISCONDUCT IN SUMMATIONS RENDERED THE TRIAL UNFAIR. (NOT RAISED BELOW).

 

POINT VI: THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR. (NOT RAISED BELOW).

 

POINT VII: THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).

 

POINT VIII: VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND INCONSISTENT.

 

POINT IX: THE SENTENCE WAS MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The record reveals the following facts. On December 16, 2009, Joseph Plum, a member of a band playing at a tavern in West Orange, phoned a man called "Scoop" to arrange to buy cocaine, as he had done several times in the past month. At the time of the arranged sale, Detective Michael Watts of the West Orange Police Department was conducting surveillance near the tavern.

Watts watched Plum arrive and park his pickup truck on Franklin Avenue before entering the tavern. About twenty minutes later, Watts saw a black Dodge Challenger park nearby. A man, later identified as defendant, exited the Dodge carrying a cigarette box. He got into Plum's truck for a minute, then got out and walked back toward his Dodge. Watts, wearing plain clothes, exited his car and followed defendant to obtain an accurate description. Defendant appeared to be sending a text message on his cell phone. A nearby street light and defendant's cell phone illuminated defendant's face. Watts did not detain defendant at the time because he believed he had insufficient information to do so. Nonetheless, Watts recorded defendant's license plate number before he drove away.

When defendant left, Plum came out of the tavern and retrieved something from his truck. Two police officers, alerted by Watts, immediately detained Plum and retrieved a cigarette box containing two bags of what was later determined to be cocaine. The police then arrested Plum and took him to police headquarters. Plum gave a statement to Detective Watts, explaining that he regularly bought cocaine from Scoop,1 whom he knew how to contact by cell phone, but had never met.

Watts investigated the license plate of the Dodge and learned that it was a rental car. The car rental records showed that defendant had rented the Dodge, and his contact number was listed as the cell phone number Plum used to call Scoop. Watts also checked defendant's driver's license and, after viewing defendant's license photo, recognized him as the person driving the Dodge near the tavern.

On February 8, 2010, Watts, driving in an unmarked vehicle with another officer, encountered a black Dodge Challenger, which appeared to be the same vehicle involved in the December 2009 tavern drug transaction. Since the transaction was still an ongoing investigation, the officers followed the Dodge and soon saw it pull into a driveway. When defendant exited the car, Watts recognized him as the previous driver of the Dodge. Defendant entered a building for a few minutes, then got back into the car. The police decided to make a traffic stop to ask defendant about the December 2009 tavern incident.

Pulling behind defendant's vehicle, the police activated their vehicle's emergency lights and sirens. Although defendant slowed down immediately, he did not stop. With the police following closely, defendant drove for several blocks, traveling between thirty to forty miles per hour, and finally entered a diner parking lot.

The officers followed defendant into the lot and parked by the driver's side door of the Dodge, leaving their emergency lights on. With their badges displayed around their necks, the officers approached defendant's vehicle. Watts announced himself as a police officer and addressed defendant by his first name. Defendant looked directly at Watts and told the detective he was on the phone with his lawyer. Watts ordered defendant to get out of the car. Around this time, other police vehicles from nearby towns began to arrive and surround defendant's vehicle.

Watts used his flashlight to see inside the interior of the car and saw an open eight-inch folding knife on the floor of the passenger side. Defendant looked toward the knife a few times. Watts continued to advise defendant that he must exit willingly or else he would be removed from the car. Watts tapped on the window with his flashlight and told him they were going to break the car window and arrest him. Although requested repeatedly, defendant refused to leave his car.

Eventually, Watts broke through the window, unlocked the door, and with the aid of several other officers, pulled defendant from the vehicle. Defendant physically resisted the officers and was subdued with mace spray before being handcuffed. Watts then removed the knife from the vehicle. After arresting defendant, the officers found $989 on his person.

The Dodge was secured and towed to the police garage. A K-9 unit police dog sniffed the exterior and gave a reaction indicating the presence of illegal drugs. Watts obtained a search warrant and examined the interior of the car. Inside the false bottom of a can, he found two clear plastic bags containing a total of forty bags of cocaine.

In January 2010, the police obtained two communication data warrants for Plum's and defendant's cell phone records, which demonstrated that the cell phones of Plum and defendant engaged in a fifty-five-second telephone conversation on December 16, 2009, around 8:00 p.m., the date and time of the drug transaction. Another conversation between the two phone numbers occurred roughly twenty-five minutes later, around the time Watts observed defendant using his cell phone in the tavern parking lot.2

On January 5, 2011, a grand jury indicted defendant with third-degree distribution of cocaine (count one), N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(1); third-degree distribution of cocaine within 1000 feet of a school zone (count two), N.J.S.A. 2C:35-7; second-degree distribution of cocaine within 500 feet of a public park (count three), N.J.S.A. 2C:35-7.1; third-degree possession of cocaine (count four), N.J.S.A. 2C:35-10(a)(1); second-degree possession of cocaine with intent to distribute (count five), N.J.S.A. 2C:35-5(b)(2); third-degree possession of cocaine with intent to distribute within 1000 feet of a school zone (count six), N.J.S.A. 2C:35-7; fourth-degree unlawful possession of a knife (count seven), N.J.S.A. 2C:39-5(d); third-degree eluding (count eight), N.J.S.A. 2C:29-2(b); third-degree resisting arrest by force (count nine), N.J.S.A. 2C:29-2(a)(3)(a); and second-degree possession of a knife during the commission of an offense related to distribution of narcotics (count ten), N.J.S.A. 2C:39-4.1(c). Counts one through three related to the events of December 16, 2009, while counts four through ten concerned the events of February 8, 2010.

Defendant filed a motion to suppress evidence of the knife and the cocaine recovered from his vehicle. Defendant argued that the warrantless seizure of the knife was unconstitutional and the warrant to search the vehicle was obtained by false or uncorroborated evidence. The motion judge, in his oral decision, denied defendant's motion to suppress. He found Watts' testimony that he saw the knife when he was outside the vehicle endeavoring to get defendant to exit the vehicle to be credible. The judge further found that, even if the initial attempt to stop defendant was not lawful, defendant "was under the obligation to comply with the law enforcement officer's requests" once they had signaled him to stop. Further, he found the affidavit used to obtain the search warrant was sufficient to establish probable cause.

The jury trial on the indictment began on April 24, 2012. On April 30, 2012, the first day of jury deliberations, the judge instructed the jury, which then deliberated with no questions. The next day, the jury continued its deliberation with three requests for readbacks of the testimony. On May 2, 2012, at 9:45 a.m., the jury reported that they agreed on two of the counts but were "convinced that [they would] never be able to come to agreement on the remaining ones." The judge gave the parties the option of reading a modified Allen3 charge to the jury at this time, and both parties declined. The judge instructed the jury as follows:

Well, by my calculations, you've probably spent more time waiting and not deliberating than deliberating. Between the Court preparing for readbacks and you folks waiting in the hall, at which time you're not deliberating, you've spent more time waiting than you have deliberating. Please return to the jury room and continue working.

 

At 3:40 p.m. that day, the jury informed the court that they were "still deadlocked on eight counts." The judge gave the parties the option of taking a partial verdict or giving the jury a modified Allen charge. Both parties opted for the modified Allen charge. The judge called the jury in and gave the following instruction:4

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.

 

In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

 

You are not partisans, you are judges, judges of the facts.

 

Return to work now please.

 

The jury continued to deliberate with additional readbacks requested. On Friday, May 4, 2012, after several requests for readbacks and a clarification of the definition of reasonable doubt, the jury had not reach a decision by the end of the day. Defendant moved for a mistrial due to the jury's two previous reports that they were deadlocked. Defense counsel noted that she planned to leave for vacation the following week, and could not be present. The judge denied the motion, noting that the jury seemed eager to continue deliberations.

The jury reached a verdict on Monday, May 7, 2012, finding defendant guilty of counts one through three, the drug charges for December 16, 2009; and counts eight and nine, eluding and the lesser included offense of resisting arrest on February 8, 2010. Defendant was acquitted of the remaining charges.

The judge sentenced defendant on June 26, 2012. The State moved for an extended term on count three, distribution of cocaine within 500 feet of a public park, pursuant to N.J.S.A. 2C:43-6f. The judge granted the State's motion.

In considering the aggravating and mitigating factors, the judge found aggravating factors three, the risk of re-offense; six, the extent of his criminal record; and nine, the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6), and (9). In addition to the three prior drug-related convictions that made defendant eligible for an extended term, the judge considered defendant's criminal record, including a prior conviction for eluding, three disorderly persons convictions, his arrest for attempted assault and burglary, his extensive juvenile record, a parole violation, and his continued criminal activity despite attending numerous drug and alcohol programs. The judge commented that defendant's risk for re-offense was further supported by his lack of remorse for his crimes. The judge also found the need for both specific deterrence of defendant and also general deterrence of others, because distribution of drugs has an impact on local communities.

The judge considered mitigating factor eleven, that prolonged imprisonment would impose an excessive hardship on defendant's family, N.J.S.A. 2C:44-1(b)(11), because defendant had a disabled brother and provided emotional support to him. The judge noted that defendant's brother was being looked after at a boarding house, and observed that defendant's criminal activity and lack of rehabilitation did not set a good example for his brother. Although noting evidence of "positive societal and influential forces" in defendant's life, including gainful employment and support of his family, the judge determined that the aggravating factors outweighed this mitigating factor.

The judge merged counts one and two with count three and sentenced defendant to twelve years imprisonment on count three. On the eluding charge, the judge sentenced defendant to four years imprisonment to run consecutively to the count three sentence. The judge sentenced defendant to eighteen months in prison on the fourth-degree resisting arrest charge to run concurrently with the other counts. Defendant's aggregate sentence totaled sixteen years imprisonment.

This appeal followed.

II.

Defendant argues that the motion judge erred in denying his motion to suppress, claiming that the decision was against the weight of the evidence and was based on Watts' incredible testimony. He submits that Watts performed an improper warrantless search of his vehicle without any exigent circumstances or need for a protective sweep. He rejects the State's "plain view" argument, noting that "Detective Watts' testimony was so contradictory . . . that his testimony should have been discredited by the Court." Defendant also claims that nothing he did justified the stop.

The State counters that the judge appropriately determined, based on Watts' credible testimony, that the detective was lawfully outside defendant's car speaking to defendant when he saw the open knife in plain view. The State asserts that, even if there was insufficient probable cause to stop defendant outside the house he briefly visited, defendant's failure to pull over after Watts activated his vehicle's emergency lights and siren constituted the crime of eluding, and the officer had probable cause to detain and arrest defendant for this crime. In any event, the State contends, even if the seizure of the knife was illegal, any error that resulted was harmless, as defendant was acquitted on the charge of unlawful possession of the knife.

In reviewing a motion to suppress, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "defer to the trial court's findings that are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case," and may make our own factual findings only if the trial court's findings "are so clearly mistaken that the interests of justice demand intervention and correction . . . ." Id. at 336-37 (internal quotation marks and citations omitted). We owe no deference to the trial court's legal conclusions and apply the law as we understand it. Id. at 337.

A warrantless seizure is "presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). The State has the burden of showing, by a preponderance of the evidence, that a warrantless search or seizure fell within an exception to the warrant requirement. Elders, supra, 192 N.J. at 246.

One such exception is the "plain view" exception. State v. Perry, 124 N.J. 128, 148 (1991). "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980). In order to satisfy the plain view doctrine, the State must prove three criteria: (1) the officer was lawfully in the viewing area; (2) the officer did not know of the evidence, but discovered it inadvertently;5 and (3) the criminal nature of the evidence must have been "immediately apparent" to the officer. State v. Johnson, 171 N.J. 192, 206-07 (2002). We perceive no reason to overturn the motion judge's denial of defendant's motion to suppress as the necessary plain view elements are present here.

The judge's determination that Watts' testimony was credible is amply supported by the record and entitled to our deference. See Mann, supra, 203 N.J. at 336-37. According to Watts, he turned on his vehicle's sirens and emergency lights to signal defendant to stop, but defendant ignored the officer's signal and continued driving for several blocks with Watts following closely behind. N.J.S.A. 2C:29-2(b) provides:

Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree . . . .

 

From the fact that the police vehicle closely followed defendant's car for several blocks with the lights flashing and the sirens on, the police had probable cause to believe that defendant received, yet knowingly ignored a visible police signal to pull over, and continued driving in violation of N.J.S.A. 2C:29-2(b). Thus, even if his original reason for stopping defendant did not amount to probable cause, Watts had the right to make an arrest for the crime of eluding. State v. Seymour, 289 N.J. Super. 80, 87 (App. Div. 1996). As the Supreme Court observed in State v. Crawley:

[A] defendant has no right to commit the crime of resisting arrest, eluding, or escape in response to an unconstitutional stop or detention. For compelling public safety reasons, the resisting arrest, eluding, and escape statutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court.

 

[ 187 N.J. 440, 455, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)).]

Accordingly, Watts had a legitimate reason for approaching defendant's car after he eluded the police. When Watts shone his flashlight into defendant's car window in the diner parking lot to speak to him, Watts was lawfully within the viewing area to see the knife. The discovery of the knife appeared to be inadvertent as the record does not suggest that Watts approached the Dodge to look for a weapon. Moreover, the open blade of the knife, in light of the evidence of defendant's prior drug trafficking, rendered its criminal nature "immediately apparent" and made its seizure lawful. Johnson, supra, 171 N.J. at 206-07.

In sum, the seizure of the weapon was not an infringement on defendant's Fourth Amendment rights as it came within the plain view exception.

III.

Defendant also argues that the court erred in not recording the sidebar conferences or in providing defendant with headphones to listen to the sidebar discussions and that his attorney erred by failing to ensure that all conferences were recorded. Defendant claims this persistent error warrants reversal or, at least, a remand for reconstruction of the record. There was no objection on this issue at trial. Defendant does not identify any specific instances where he was prejudiced by an unrecorded decision. Hence, we find no merit in this argument.

"[A]ll proceedings in court shall be recorded verbatim . . . ." R. 1:2-2. However, not "every failure to comply with [Rule 1:2-2] constitutes a per se basis for reversal." State v. Paduani, 307 N.J. Super. 134, 141 (App. Div.), certif. denied, 153 N.J. 216 (1998). Rather, such omissions do not mandate reversal "'unless the defendant can demonstrate specific prejudice.'" Id. at 142 (quoting State v. Bates, 933 P.2d 48, 54 (Haw. 1997)).

It is undisputed that the record on appeal contains thirty-three sidebar conferences between the judge and both counsel that were unrecorded. We have carefully reviewed the transcript of the proceedings before and following the unrecorded sidebars. About ten of the rulings concern administrative issues of scheduling or courtroom decorum. Three sidebars appear to discuss administrative and evidentiary issues, and the remaining twenty appear to concern evidentiary rulings or clarifications. We are readily able to discern the general subject discussed and the judge's ruling based upon counsel's conduct immediately following the sidebar.

Defendant does not point to any specific unrecorded ruling by which he was prejudiced. Nor has he identified how the absence of any recorded sidebar conference has impeded the review of any issue on appeal. We reject defendant's vague contention of undetermined prejudice as insufficient to warrant reversal. Based upon our review of the record, we conclude that, although the judge erred by failing to record sidebar conversations as required by Rule 1:2-2, defendant has not demonstrated the error was "clearly capable of producing an unjust result[.]" R. 2:10-2.

IV.

In addition, defendant challenges the judge's failure to give a cross-racial identification jury charge concerning Watts' identification of defendant. Alternatively, defendant claims his trial counsel was ineffective for not requesting a cross-racial identification charge until summation. We disagree.

Defendant is African-American and Watts is Caucasian. As the Supreme Court recently remarked, racial bias during identification sometimes occurs "'when an eyewitness is asked to identify a person of another race,'" and that this affects the reliability of such identifications. State v. Henderson, 208 N.J. 208, 267 (2011) (quoting State v. Cromedy, 158 N.J. 112, 120 (1999)). In Henderson, decided on August 24, 2011, prior to the trial in the case at bar, the Supreme Court mandated that "[a]s to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 302. As the State correctly noted, at the time of defendant's trial, the new model jury charges were not yet in effect6 and had not yet been released in final form.

Consequently, the requirement in Henderson for a relevant jury charge in most cross-racial identification cases does not govern here. The controlling principle before Henderson required that cross-racial identification jury instructions be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Cromedy, supra, 158 N.J. at 132.

The State maintains that identification was not a core issue and that there was a substantial amount of independent supporting evidence. The State emphasizes that Watts had ample time and opportunity to view defendant, defendant had rented the Dodge using the same cell phone number as Plum used to contact him, Watts recognized the person in the Dodge as identical to defendant's driver's license photo, and Plum admitted buying cocaine from "Scoops." The State further notes that defendant's cell phone records showed two phone calls between defendant and Plum around the time of the drug transaction.

We agree that cross-racial identification was not a crucial issue in this case as there was a substantial amount of evidence that independently corroborated Watts' identification of defendant and supported its trustworthiness. In addition, the reliability of the identification was considerably increased because Watts was a trained law enforcement officer who had an opportunity to view defendant for several minutes and subsequently identified him from his driver's license photo. See State v. Murray, 338 N.J. Super. 80, 89-90 (App. Div.) (holding there is a significant difference between an identification made by a trained police officer and one made by the victim of a crime), certif. denied, 169 N.J. 608 (2001). Thus, the judge did not err in failing to give a cross-racial identification instruction to the jury.

Moreover, defendant's trial counsel was not deficient for failing to request this instruction,7 since there was no requirement to do so under the Cromedy standard in light of the substantial corroborating evidence supporting Watts' identification. See State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("[A]s there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied effective assistance of counsel."), certif. denied, 197 N.J. 477 (2009).

V.

Defendant also asserts that the trial judge's failure to grant his motion for a mistrial, after the jury twice reported it was unable to reach a verdict, was harmful error capable of producing an unjust result. Defendant further contends that the judge erred in not giving a modified Allen charge after the jury first reported it was deadlocked and failing to take a partial verdict. We do not agree.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed 2d 683 (2000). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. We will not disturb a trial judge's ruling on a motion for a mistrial unless it presents an abuse of discretion resulting in "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969).

Similarly, the decision to use a modified Allen charge is within the trial court's sound discretion. State v. Czachor, 82 N.J. 392, 406-07 (1980). The court's decision must be guided by "the length and complexity of trial and the quality and duration of the jury's deliberations." Id. at 407. The charge must not be given to the jury in order to coerce them to reach a verdict. State v. DiFerdinando, 345 N.J. Super. 382, 397 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

We find no abuse of discretion here. The judge reasonably determined after the first jury report of deadlock that the jury had "spent more time waiting and not deliberating than deliberating," and he merely asked them to continue deliberations. Significantly, both parties consented to the decision not to give a modified Allen charge at this time. Then, after the jury reported that they were deadlocked for the second time, the judge, with the consent of both parties, gave a modified Allen charge.

The judge's decision to wait until the second hung jury note, especially in light of the fact that the jury had not deliberated for a lengthy period of time, was well within his discretion. After the instruction was given, the jury deliberated for three more days, actively requesting readbacks and clarifications, and never indicating again that it was unable to reach a verdict. Thus, the verdict was evidently the product of diligent deliberation, which demonstrates a lack of coercion. In denying defendant's motion for a mistrial, the trial judge perceived no manifest injustice warranting a mistrial, nor do we.

VI.

Defendant also contends several statements made during the State's summation were grossly prejudicial and so egregious as to render the trial unfair. Viewing the prosecutor's remarks in the context of his entire summation, we are not persuaded.

During the State's summation, the prosecutor argued that defendant was very "crafty" in setting up the cocaine sale at the tavern parking lot.

There's a phrase you may or may not be familiar with, "dead drop." It's it comes from espionage. The CIA and KGB used to do this. And if you've seen a lot of spy movies or read spy mystery books, you may have heard the term. . . .

 

It's a way of transferring something from one person to another where you don't want the two people to ever be seen together, and in fact, you would really rather person two not even ever see person one. That's what Mr. Wright set up, and that is incredibly clever.

 

Defendant did not object to this statement.

Later in his summation, the prosecutor discussed Watts' testimony about defendant briefly stopping his car and going into a house on February 8, 2010. He suggested that defendant's brief stop was "another indication that the cocaine was ultimately found in Mr. Wright's car was possessed with the intent to distribute because I would submit that that was another dead drop."

Defendant objected and a sidebar conference was conducted off the record. The prosecutor then clarified his previous remarks:

Now, in case anybody misunderstood or in case anybody was confused, I am not saying that Mr. Wright is charged with distributing cocaine and we've got proof that he distributed cocaine on that occasion going into Summer Avenue. I am saying his conduct in going quickly up to a location and then returning a moment later, while it could [have] many genuine, perfectly lawful explanations[, it] was also consistent with his modus operandi as a drug dealer as demonstrated on December 16th.

 

The trial judge then gave a curative instruction:

I need to stress to the jury, though, that there is no evidence in the case that Mr. Plum, I'm sorry, Mr. Wright went into that house or made a drug deal. There's no evidence in this case that that's what he did. And I do understand the prosecutor to be saying to you in his argument he's not saying that that's what happened just so to re-emphasize that there's no evidence that that's what Mr. Wright did there.

 

The prosecutor also discussed the evidence that defendant rented a car for $880 every month. He suggested this was part of defendant's "modus operandi" to prevent him from easily being identified as a drug dealer and to inhibit immediate detection. Defendant argues that this amounted to impermissible speculation with no foundation in the record.

Lastly, defendant challenges as erroneous the prosecutor's comment on defendant's behavior when the police removed him from the Dodge. He noted that defendant was "flailing on the ground" like a child throwing a tantrum, either because he had completely lost control or he was trying to bait the officers. The prosecutor remarked, "It doesn't matter why he's doing it. That has no bearing on his guilt." Defendant did not object to the comment on defendant's motivations. Defendant argues that this statement amounted to the prosecutor instructing the jury that defendant's mental state need not be considered in determining eluding or resisting arrest.

Prosecutors are afforded wide latitude in presenting summations. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Yet, a prosecutor is obligated "not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Further, it is as much the prosecutor's "'duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). The prosecutor must ensure the comments in summation "are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Prosecutors should not make inaccurate legal or factual assertions and must confine their comments "to evidence revealed during trial, and reasonable inferences to be drawn" therefrom. State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

In evaluating whether prosecutorial misconduct requires reversal, we must determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Usually, if no objection is made during summation, then the remarks will not be considered prejudicial. Ramseur, supra, 106 N.J. at 323; State v. Ingram, 196 N.J. 23, 42 (2008). However, in particularly egregious circumstances, the prosecutor's comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J. Super. 85, 89-92 (App. Div. 1994). Improper comments by a prosecutor require reversal "when they 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).

None of the challenged comments, alone or together, deprived defendant of a fair trial. The prosecutor's remarks about defendant's brief stop at a residence possibly being another drug transaction were clearly improper. Timely objection was made and sustained by the judge. The State sought to clarify its statement to the jury and the judge immediately gave a curative instruction.

In addition, we agree that the prosecutor's remark likening defendant's method of transferring the drugs as similar to the KGB or the CIA was not a fair inference from the evidence and was potentially inflammatory. On the other hand, we do not agree that suggesting to the jury that the defendant renting a car was part of his drug dealing was improper. Regardless, neither remark was particularly egregious and certainly the remarks were not harmful to defendant's case.

Finally, the record does not support defendant's claim that the State's summation attempted to convince the jury that mens rea was not an element of eluding or resisting arrest. The possibility that defendant was throwing a "tantrum" or "trying to bait the officers" implied that defendant knew what he was doing. In other words, the prosecutor was positing that defendant had the mental state for knowingly resisting arrest and that, as such, his particular reasons for doing so were of no concern. In addition, the judge properly instructed the jury on the requisite mental state for resisting arrest and eluding.

Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 186 L. Ed. 2d 558 (2013); see also State v. Loftin, 146 N.J. 295, 390 (1996) (accepting the presumption that juries follow a court's instructions). Here, the judge appropriately provided this instruction to the jury.

In reviewing a challenge to the prosecutor's remarks in summation, "[o]ur task is to consider the 'fair import' of the State's summation in its entirety." Jackson, supra, 211 N.J. at 409 (citations omitted). In the context of the entire summation, the prosecutor's remarks about which defendant complains were not clearly capable of producing an unjust result. Moreover, any prejudice that arose was cured by the trial court's clear instructions to the jury that the attorneys' remarks made in summation were not to be considered as evidence. See Smith, supra, 212 N.J. at 409.

VII.

Next, defendant claims, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that his trial counsel made "significant and substantial errors throughout the pretrial and trial." He alleges specifically that his counsel provided ineffective assistance by

not conferring with the client, not raising issues regarding inconsistent testimony, not pursuing the Motion to Suppress issues with Judge Cronin or, alternatively appealing the Motion to Suppress prior to trial, not being there for the last day of jury deliberations or verdict, not raising cell tower reliability issues, not pursuing potential witnesses at the Motion to Suppress and trial, not pursuing the admission of the statement of Joseph Plum, not making a motion for a Wade[8] hearing, and not protecting the record in any meaningful way.

 

To prove ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's error so prejudiced defendant that he was deprived of a fair trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate procedure for their resolution commonly is not direct appeal, but rather a post-conviction relief (PCR) application attended by a hearing if a prima facie showing of remediable ineffectiveness is shown. Id. at 460, 463. Where defendant's claim of ineffectiveness relates solely to his allegation of a substantive legal error contained completely within the trial record, however, we can consider it. See Quezada, supra, 402 N.J. Super. at 280.

Defendant's claims are better suited for a PCR proceeding, rather than this appeal, as they appear to concern issues of out-of-court statements and possible trial strategy decisions. State v. McDonald, 211 N.J. 4, 30 (2012). The record, of course, cannot reveal what occurred during off-the-record interactions, and making an adequate judgment "would require information outside of the record [to be] before the Court." Ibid. Thus, we decline to consider this point. Our determination is without prejudice to defendant raising it in an appropriate and timely PCR petition.

 

 

VIII.

Further, defendant argues that his sentence was manifestly excessive and an abuse of judicial discretion. He claims that in considering the aggravating and mitigating factors, the trial judge did not take into account defendant's character and the character references by his family and friends. He also claims that it was improper for the judge to consider lack of remorse solely because defendant maintained his innocence at trial.

We review a trial court's sentencing decisions under an abuse of discretion standard. State v. Kirk, 145 N.J. 159, 175 (1996) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). On appeal, we must exercise our power of review sparingly and not simply substitute our own judgment for that of the sentencing court. State v. Fuentes, ___ N.J. ___, ___ (2014) (slip op. at 13) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We may modify the sentence only if the application of the law to the facts reveals such a clear error of judgment that it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

In determining the proper sentence, the trial court must consider any aggravating and mitigating factors, as listed in N.J.S.A. 2C:44-1. Here, the trial judge gave an extremely detailed analysis of the aggravating and mitigating factors before rendering defendant's sentence. Contrary to defendant's contentions, the judge did consider the potential hardship to his family and defendant's character references. The judge found that the mitigating factor of hardship to defendant's family was outweighed by defendant's risk of re-offense and the need for deterrence, noting that defendant's character references did not sufficiently outweigh his extensive criminal record and inability to rehabilitate himself.

Under the circumstances of this case, defendant's sentence of sixteen years follows the sentencing guidelines, is reasonable, and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Defendant's remaining contentions are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

 

 

1 The parties stipulated at trial that defendant had the word Scoop tattooed on his arm and went by that name.

2 This information was not immediately available to the investigating officers and, as such, did not factor into their initial decision to stop defendant on February 8, 2010.

3 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

4 This charge substantially complied with the Model Jury Charge.

5 We recognize that the United States Supreme Court has indicated that the inadvertence element is not required under the Fourth Amendment, although that element may still be required under the New Jersey Constitution. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Cf. State v. Johnson, 171 N.J. 192, 222-23 (2002) (Long, J., dissenting). We shall assume for our analysis that the element still applies.

6 The Supreme Court released the revised jury instructions on July 19 2012, announcing that they would become effective on September 4, 2012. See Press Release, New Jersey Courts, Supreme Court Releases Eyewitness Identification Criteria for Criminal Cases, (July 19, 2012), http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm.

7 We will consider this ineffective-assistance-of-counsel claim as it does not rely on information outside the record. See State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008).

8 Unites States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).