STATE OF NEW JERSEY v. DORIAN PRESSLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01044-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DORIAN PRESSLEY, a/k/a

JUSTIN BELTON,

Defendant-Appellant.

__________________________

December 15, 2016

Submitted November 1, 2016 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-05-0808.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erica M. Bertuzzi, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Dorian Pressley appeals from his convictions after a jury trial of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree distribution of cocaine, N.J.S.A. 2C:35-(a)(1) and (b)(3); and third-degree distribution of cocaine within 1,000 feet of a school zone, N.J.S.A. 2C:35-7. He was sentenced to an aggregate sentence of an extended term of ten years with a five-year parole disqualifier. He argues on appeal that he should have been afforded a Wade1 hearing and the State's summation deprived him of a fair trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On April 30, 2013 at about seven in the evening, undercover police officer Romano testified that she approached a street corner where defendant, wearing a red Adidas jacket, red baseball-style hat and khaki pants, came up to her and asked her what she was looking for. She said she was looking for "bottles." Defendant then sold her two glass vials of cocaine for twenty dollars. He also gave her his cell phone number, telling her to store it under the name D-O-R. Officer Romano radioed a description of defendant to other officers stationed nearby. One of the officers, Finn, had been watching the transaction through binoculars and could see the way defendant was dressed. Finn radioed the description of defendant's clothes to Officer Scanlon, who stopped defendant to talk to him and later pulled up a photo of defendant at the police station. Scanlon handed the photo to Officer Lugo, who gave the picture to Officer Romano no more than sixty minutes after the drug sale. Officer Romano identified defendant from the single photograph as the man who had earlier sold her cocaine.

Four months later, defendant was arrested. He had a small amount of heroin on his person at the time of his arrest.

Defendant raises the following issues on appeal

POINT I: THE TRIAL COURT'S DECISION NOT TO GRANT A WADE HEARING WAS ERRONEOUS BECAUSE DEFENDANT MADE A SUFFICIENT SHOWING OF IMPERMISSIBLE SUGGESTIVENESS.

POINT II: THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY THAT THE RELIABILITY OF ROMANO'S IDENTIFICATION OF DEFENDANT WAS NOT SUBJECT TO THE VARIABLES WITH THE POTENTIAL TO CAUSE MISIDENTIFICATION MERELY BECAUSE SHE WAS A POLICE OFFICER. (NOT RAISED BELOW)

Defendant argues that Officer Romano's identification of defendant from a single photograph was impermissibly suggestive and necessitated a Wade hearing. See State v. Henderson, 208 N.J. 208, 222-25 (2011). The photograph shown to Officer Romano within a short time of the undercover transaction does not constitute "some evidence of suggestiveness that could lead to a mistaken identification." Henderson, supra, 208 N.J. at 288. Unlike a crime victim, Officer Romano was performing her job when buying drugs from defendant, and was paying particular attention to his identity. Although she was only shown one photograph, a show-up within one hour is not in itself impermissibly suggestive. See State v. Herrera, 187 N.J. 493, 504 (2006). The cross-racial nature of the identification, however, does add to its lack of reliability. Henderson, supra, 208 N.J. at 240. Defendant thus does have a colorable argument that a pretrial Wade hearing was required.

Although the trial judge denied the defense request for such a hearing, Officer Romano testified at another Rule 104 hearing requested by defendant, at which time she also testified in detail as to the identification procedures employed. The judge stated

I gave the defense wide liberty in questioning her about the identification procedure over no objection from the State. So in essence there was an identification hearing, because at that time I also concluded without placing it on the record but I was firmly convinced that there was no suggestiveness necessary to suppress the identification.

Defendant received a sufficient pre-trial review of the identification procedures employed.

In Point II, defendant argues for the first time on appeal that comments made during the prosecutor's summation deprived him of his right to a fair trial. We disagree.

Prosecutors are "entitled to sum up the State's case graphically and forcefully." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). However, a prosecutor's comments must be "reasonably related to the scope of the evidence presented." State v. R.B., 183 N.J. 308, 332 (2005) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). This means the prosecutor may comment on the evidence revealed at trial, "drawing any reasonable inferences supported by the proofs." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Prosecutors are also permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996); see State v. Timmendequas, 161 N.J. 515, 588 (1999). To warrant reversal of a conviction on appeal, it must be evident that the prosecutor's conduct was "clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

In determining whether the prosecutor exceeded these bounds, "an appellate court must consider: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Echols, 199 N.J. 344, 360 (2009) (quoting Timmendequas, supra, 161 N.J. at 576).

Defense counsel argued in summation that Officer Romano misidentified defendant, and that the officers intentionally lied about defendant's involvement based on a prior grudge against him. Defense counsel also discussed at length the Attorney General Guidelines for identification procedures that were not followed. In response, the State argued without objection that the Guidelines "for the most part" deal with lay witnesses, while Officer Romano, as a trained law enforcement officer, had made a "confirmatory identification." These comments by the State were in response to the defense argument and did not deprive defendant of a fair trial.

Affirmed.

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