STATE OF NEW JERSEY v. ABDUL J. WEBSTER

NOT FOR PUBLICATION WITHOUT THE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.

ABDUL J. WEBSTER, a/k/a

BUCKY,

Defendant-Appellant.

____________________________

February 23, 2015

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-08-1342.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Abdul J. Webster was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); and third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5-7 (count three).1 The trial judge denied defendant's post-trial motions for judgment of acquittal notwithstanding the verdict (n.o.v.) and a new trial. At sentencing, the judge merged count one into count two and count two into count three and sentenced defendant on count three to a mandatory extended term of ten years imprisonment with a five-year period of parole ineligibility. The judge also imposed the appropriate fees, assessments and penalties.

On appeal, defendant raises the following contentions

POINT I

THE DEFENDANT'S DISTRIBUTION CONVICTIONS MUST BE REVERSED BECAUSE THE STATE DID NOT PROVE THAT THE DEFENDANT HAD CONSTRUCTIVE POSSESSION OF THE HEROIN FOUND IN THE TREE.

POINT II

OFFICER WOJTOWICZ'S AND OFFICER HILBURN'S OPINION TESTIMONY OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN, 205 N.J. 438 (2011), WHEN THEY TESTIFIED ABOUT DRUG STASHES, HEROIN PACKAGING, AND SUSPECTED SALES. [(Not Raised Below.)]

POINT III

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE NO OFFICER OR SURVEILLANCE VIDEO SHOWED THE DEFENDANT POSSESS ANY DRUGS, DISTRIBUTE ANY DRUGS, OR ACCESS ANY DRUG STASH, AND THIS COURT SHOULD REVERSE THE CONVICTIONS TO PREVENT A MISCARRIAGE OF JUSTICE.

POINT IV

THE TRIAL COURT IMPROPERLY DOUBLE COUNTED DEFENDANT'S PRIOR RECORD AND FAILED TO CONSIDER THE NATURE OF HIS OFFENSE OR ANY MITIGATING FACTORS WHEN THE TRIAL COURT IMPOSED AN EXCESSIVE TEN YEAR SENTENCE WITH FIVE YEARS OF PAROLE INELIGIBILITY.

We reject these contentions and affirm.

I.

We derive the following facts from the record. At approximately 4:30 p.m. on April 22, 2011, Police Officers Pawel Wojtowicz and Jessie Hilburn from the Jersey City Police Department were conducting a narcotics investigation in the area of Reed and Bergen Streets in plain clothes and an unmarked patrol car. Officer Wojtowicz testified the area was a "high crime area" where he "personally . . . conducted numerous investigations . . . [and] made numerous arrests that resulted in . . . convictions."

As the officers patrolled the area, they saw a man, later identified as defendant, sitting on a step at the front entrance of a residential apartment building on 100 Reed Street.2 Directly across the street from defendant was a large tree in the front yard of a two-family home at 200 Reed Street (the tree area). After observing defendant, Officer Wojtowicz contacted the Closed Circuit TV Unit (CCTV Unit) of the Jersey City Police Department3 and asked Supervisor Vincent Stepnowski to position a surveillance camera located at the corner of Reed and Bergen Streets in the area where defendant was sitting. The officers remained in the area and waited for Supervisor Stepnowski to advise them of any suspicious activity.

Supervisor Stepnowski positioned the camera on defendant and observed and recorded his actions for approximately two hours. Relevant portions of the videotape recording played to the jury showed the following. Defendant was standing near the tree area speaking to two individuals. The individuals walked away after defendant entered the tree area. A man with a pink backpack then approached 200 Reed Street. Defendant exited the tree area and exchanged something with the man. Defendant then crossed the street and went into an alley near 100 Reed Street (the alley), where he stayed for several minutes. He then exited the alley and sat down on the step at 100 Reed Street. Supervisor Stepnowski reported to Officers Wojtowicz and Hilburn that defendant and a man with a pink backpack made some type of exchange. The officers then established surveillance about a block away from defendant.

A woman then approached defendant and the two engaged in a conversation while walking toward the alley. Defendant then crossed the street, went into the tree area, crossed back over the street, and entered the alley, which the woman had apparently entered. The woman then exited the alley. Defendant exited shortly thereafter, crossed the street, and stood near the tree area.

A few minutes later, another man approached defendant and the two men appeared to exchange something. Both men crossed the street and entered the alley. Defendant exited the alley, crossed the street, and stood near the tree area.

A man wearing sunglasses then approached defendant and the men appeared to exchange something. They crossed the street and entered the alley. The man exited the alley and walked up Reed Street to Bergen Street. Supervisor Stepnowski reported the exchange to Officers Wojtowicz and Hilburn. Officer Wojtowicz testified that he stopped and searched the man because he suspected the man had purchased drugs from defendant; however, no drugs were found in the man's possession.

The videotape showed a man with a "brown hoodie" approach defendant and speak to him, as the two walked toward 100 Reed Street. Defendant crossed the street, went into the tree area, crossed back over the street, and entered the alley. The man, who apparently had entered the alley, exited shortly thereafter. Defendant then exited and sat down on the step at 100 Reed Street.

A man wearing a "red hoodie" approached defendant and the two men entered the alley. After the man exited, Officer Hilburn apprehended and searched him, but no drugs were found in his possession.

Officer Wojtowicz testified that he attempted to apprehend defendant, but defendant resisted. After a brief struggle, defendant was arrested and handcuffed. Officer Wojtowicz searched defendant and found in defendant's possession seven glassine bags of heroin bound by a rubber band and stamped "Elvis" in red lettering and approximately $185 in cash in various small denominations.

Supervisor Stepnowski testified that he directed Officer Wojtowicz to the tree area because that was where defendant "kept on constantly going." Officer Wojtowicz testified that he told other police officers who had arrived at the scene to "keep an eye on the tree . . . [b]ecause [it] was a suspected stash location." He then searched the tree area and found a black plastic bag tied around a branch of the tree. He testified that inside the bag he found two "bundles" of ten bags of heroin stamped "Elvis" in red lettering and bound by a rubber band. He also found "magazine wrap paper," which he testified was commonly used "to package a brick of heroin[.]"

Officer Hilburn testified that Officer Wojtowicz recovered narcotics from defendant and that the tree had more narcotics in it. He also testified that he searched the alley and found six empty glassine bags marked "Elvis" that matched the same bags recovered from defendant.

Supervisor Stepnowski testified that defendant approached the tree area a total of five times over the course of the surveillance and no one other than defendant or Sergeant Wojtowicz entered into the tree area.

The State's narcotics expert, Sergeant Christopher Robateau, reviewed the investigation report, property and evidence report, laboratory analysis, and videotape recording. He testified that the area of Reed and Bergen Streets was "known as a drug location, particularly known for the availability of heroin." He described a "stash" as follows

A stash is basically a hidden supply of narcotics that a dealer would keep at his disposal out on the street a street level dealer. Throughout the course of conducting his business with his narcotics transactions, he will go [to] and from this . . . location of the stash. So it's a hidden location out on the street usually, and where the drugs are not actually on the person of the dealer.

He testified that a dealer would "exercise some type of either visual or physical control of the stash" and "usually try to keep themselves within close proximity of this location . . . where . . . their drugs or the majority of their drugs are actually stored or concealed."

Sergeant Robateau testified that in Jersey City, heroin is packaged in "small glassine envelopes" and "normally have a logo" that is "basically a marketing tool that's used by the dealers out on the street . . . to generate repeat customers." He also testified that twenty-seven bags of heroin were seized in this case. He also noted that a "brick of heroin" is generally "wrapped in magazine paper."

II.

Defendant contends in Point I that the trial judge erred in denying his post-trial motion for judgment of acquittal n.o.v. on count two (possession of a CDS with intent to distribute) and count three (possession of a CDS with intent to distribute within 1000 feet of school property). He argues that because the police never saw him possess or distribute narcotics and no narcotics were found on the two suspected buyers, there was no proof he had constructive possession of the heroin found in the bag tied to the tree.

For the same reasons, and because neither the police nor the surveillance video showed him access any drug stash, defendant contends in Point III that the verdict was against the weight of the evidence. We disagree with both contentions.

The standard for deciding a Rule 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for judgment of acquittal made at the end of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Moreover, the governing standard as set forth in Rule 3:20-1, states, in pertinent part, that

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

Defendant was charged with possession of a CDS with intent to distribute. Criminal possession requires that "the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1(c). We have recognized that "'possession cannot be based on mere presence at the place where contraband is located. There must be other circumstances or statements of defendant permitting the inference of defendant's control of the contraband.'" State v. Scott, 398 N.J. Super. 142, 150 (App. Div. 2006) (quoting State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd, 133 N.J. 481 (1993)), aff'd, 193 N.J. 227 (2008).

Nevertheless, "possession can be constructive rather than actual." State v. Brown, 80 N.J. 587, 597 (1979). "Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Ibid.

Furthermore, "'[p]roof of possession may be by circumstantial evidence as well as direct evidence.'" Scott, supra, 398 N.J. Super. at 151 (quoting State v. Rajnai, 132 N.J. Super. 530, 536 (App. Div. 1975)). Circumstantial evidence may even be "more certain, satisfying and persuasive than direct evidence," State v. Thomas, 256 N.J. Super. 563, 570 (App. Div. 1992), aff'd, 132 N.J. 247 (1993), and it may, by itself, be sufficient to support a guilty verdict. State v. Franklin, 52 N.J. 386, 406 (1968).

We are satisfied that the evidence in this case, viewed in its entirety and giving the State all favorable inferences therefrom, was more than sufficient to allow a reasonable jury to find defendant guilty on counts two and three. We are also satisfied that the evidence amply supported the verdict. During the course of the surveillance, defendant remained in very close proximity to the tree and entered into the tree area several times. Although other individuals were in the area of 200 Reed Street, defendant was the only person who repeatedly entered the tree area. In addition, defendant was found to be in actual possession of seven bags of heroin marked "Elvis," which matched both the stamp on the bags of heroin found in the plastic bag tied to the tree and the empty bags recovered from the alley that defendant repeatedly entered.

Furthermore, Sergeant Robateau testified about how street level drug dealers often maintain a "stash" in a hidden location on the street, rather than actually on their person and that, throughout the course of conducting their drug dealing, they often go to and from this location and maintain control by keeping themselves in close proximity of it. Finally, Sergeant Robateau testified as to how dealers also mark their drugs with a logo that is particular to them in order to encourage repeat business.

From the circumstantial evidence in this case, the jury could reasonably conclude that the defendant was in constructive possession of the heroin recovered from the tree. His behavior was consistent with the expert's testimony about how drug dealers maintain a "stash" on the street. Further, the presence of the same red "Elvis" stamp on the bags recovered from defendant, the plastic bag, and the alley supports the reasonable inference that defendant possessed and distributed heroin. Accordingly, defendant's post-trial motion were properly denied.

III.

Defendant contends for the first time on appeal in Point II that Officers Wojtowicz and Hilburn gave inadmissible opinion testimony about drug stashes, heroin packaging, and suspected drug sales. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

In the context of non-expert police officer testimony, our Supreme Court has held that officers may offer "fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses." State v. McLean, 205 N.J. 438, 460 (2011). Such testimony should be a "ordinary fact-based recitation by a witness with first-hand knowledge," rather than "information about what the officer 'believed,' 'thought' or 'suspected[.]'" Ibid.

Here, the testimony of Officers Wojtowicz and Hilburn, of which defendant complains, was a fact-based recitation based on the officers' personal observations and perceptions of defendant's actions and the actions of those individuals with whom he interacted. Accordingly, there was no error, let alone plain error, in the admission of that testimony.

IV.

Defendant challenges his sentence in Point IV. He argues the judge improperly double-counted his prior criminal record to determine his eligibility for an extended-term sentence and to justify the maximum sentence at the top of the extended-term sentencing range. Defendant also contends the judge failed to consider the nature of his offense or mitigating factors. We reject these contentions.

We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We discern no abuse of discretion in defendant's sentence. Defendant was eligible for a mandatory extended-term sentence based on two prior convictions for possession of a CDS with intent to distribute within 1000 feet of a school. In addition to those convictions, defendant had four other indictable convictions, including one for possession of a CDS. At the time defendant committed the present offenses, he was on probation for a conviction for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). We are satisfied that the judge did not violate the sentencing guidelines, and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

1 The State voluntarily dismissed a charge of second-degree possession of a CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The jury found defendant not guilty of the additional charges of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1, and third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a).

2 The property numbers used in this opinion are fictitious.

3 The CCTV Unit has three operators, one for each district in Jersey City, who operate approximately seventy cameras throughout the City. The CCTV Units monitor the cameras and police radios and respond to officers' requests to look for suspicious activity. The camera operators control the cameras with a joystick, which they can use to zoom the cameras in and out and rotate them 360 degrees.