STATE OF NEW JERSEY v. RONALD B. GREENE

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD B. GREENE a/k/a

RONALD B. GREEN,

Defendant-Appellant.

__________________________________

November 9, 2016

Submitted October 13, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-02-0302.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief).

GurbirS. Grewal,Acting BergenCounty Prosecutor,attorney forrespondent (Catherine A.Foddai, SpecialDeputy Attorney General/ Acting Senior Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Ronald B. Greene a/k/a Ronald B. Green, appeals from his conviction and sentence after trial by jury. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm defendant's conviction, but remand for resentencing.

We discern the following facts taken from the trial evidence. In October 2011, the Bergen County Prosecutor's Office, Narcotics Task Force (NTF), received and acted upon information that Jose B. Rodriguez was involved with heroin distribution. Detective Michael Perez of the NTF contacted Rodriguez and posed as an interested buyer. Perez and Rodriguez had numerous conversations which resulted in an agreement whereby Rodriguez would sell Perez two kilos of heroin for $100,000. A meeting was set for the transaction on October 18, 2011, at the Hampton Inn in Ridgefield Park.

The NTF held a briefing on the morning of the planned transaction. Perez was equipped with a recording device and transmitter so that backup officers could monitor the conversation between Perez and Rodriguez. Perez prearranged a distress signal should he require assistance from the backup officers.

At approximately 11:45 a.m., other backup officers arrived at the Hampton Inn to secure a vantage point. Perez spoke to Rodriguez indicating he was en route. Rodriguez advised Perez that he was also en route. At this time, backup officers observed a silver Chevrolet Malibu with New Jersey license plates and a silver Toyota Camry with New York license plates enter the parking lot. The backup officers observed Rodriguez exit the Camry, walk to the hotel's front entrance, and sit on a bench. The driver of the Camry was Yohan Balcacer. The other occupants were Brandon Segar and defendant. The backup officers advised Perez that Rodriguez arrived.

Perez arrived at the location approximately twenty-five minutes later, parked his car in the center of the lot, and phoned Rodriguez to coordinate a meeting place. Rodriguez walked to Perez's car, entered using the passenger-side door, and handed Perez a sample of a tan, powdery substance. Perez suggested he leave with the sample to test the quality and then would meet with Rodriguez in an hour to pay for the heroin. Rodriguez agreed with the suggestion and exited the vehicle. Perez then drove to a pre-determined location where he met with Sergeant Anthony Martino of the NTF. A field test was conducted which confirmed the substance to be heroin. Perez advised Rodriguez by phone that he would return at 1:00 p.m. with the $100,000.

While this was occurring, the Malibu left the Hampton Inn and proceeded to an Exxon gas station. Defendant exited the Malibu and entered the station's convenience store. The Camry remained at the Hampton Inn. Rodriguez exited the Camry holding a package that he placed in bushes near the hotel. Shortly thereafter, Segar and defendant returned to the Hampton Inn, parking the Malibu in the rear lot.

Perez returned to the Hampton Inn and approached Rodriguez, who was sitting on a bench near the main entrance. Rodriguez and Perez walked to the bushes where the plastic bag was located. Perez opened the bag and observed a tan, powdery substance similar to the sample. Rodriguez then inquired about the money. Perez responded that it was in his car. As Rodriguez and Perez walked toward the car, the Malibu approached from the rear of the hotel moving slowly past Perez, with both Segar and defendant staring at him. The Malibu parked next to Perez's car. Perez was approached by defendant who racked the slide on a handgun and, from two feet away, pointed it at Perez's head. Perez ran toward the rear of the hotel yelling "gun." Perez remained at that location until he was met by a backup officer.

Defendant tried to open Perez's car when members of the Bergen County Sheriff's Department, Criminal Investigation Unit, converged on the scene. Defendant threw the gun under Perez's car and attempted, without success, to enter the Camry as it sped away. Defendant ran toward Route 46, ignoring police officers' commands to stop, but was eventually apprehended and handcuffed.

The officers located and seized a handgun from under the driver's side of Perez's car. A second handgun, located in the center console of the Malibu, was also seized. Both handguns were operable and loaded with metal jacketed, hollow-point bullets.

The drug sample Rodriguez provided to Perez was again analyzed and determined to be .67 grams of heroin. However, when the larger quantity of suspected heroin from the bag was analyzed, it was determined not to be a controlled dangerous substance.

A Bergen County grand jury returned a twenty-four count indictment against defendant, Rodriguez, Segar and Balcacer. Defendant was charged in the indictment with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (count two); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2c:35-5b(3) (count three); second-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count four); third-degree possession with intent to distribute an imitation drug, N.J.S.A. 2C:35-11 (count five); first-degree armed robbery, N.J.S.A. 2C:15-1 (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2c:39-4a (counts seven and sixteen); second-degree possession of a handgun with the requisite permit, N.J.S.A. 2C:39-5b (counts eight and seventeen); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count nine); second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1(a) (counts ten and eighteen); first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1 (count eleven); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count twelve); third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1) (count thirteen); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count fourteen); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count twenty-three).

Defendant filed a motion to dismiss the indictment. The motion was heard and denied.

A bifurcated jury trial involving only defendant commenced on November 7, 2013, and ended on December 4, 2013. Defendant did not testify and did not produce any witnesses. Defendant was acquitted of attempted murder and resisting arrest. He was convicted on all other charges. On December 5, 2013, defendant was tried and convicted before the same jury for the certain persons charge.

On the return date of the sentence, defendant's motion for a new trial was denied. The State's motion for an extended term on the first-degree robbery conviction was granted. The court merged counts two, seven and sixteen with count six and sentenced defendant to a twenty-five-year term of imprisonment with eighty-five percent minimum parole ineligibility subject to the No Early Release Act (NERA), and a five-year period of parole supervision. Defendant was sentenced to a consecutive ten-year term of imprisonment with a parole ineligibility period of five years for the certain persons conviction. On the remaining charges, defendant was sentenced to concurrent terms to the robbery conviction.

The trial court resentenced defendant on April 11, 2014, to clarify the applicability of the Graves Act to certain aspects of the sentence. Upon resentence, counts ten and eighteen were to run consecutive to the sentences imposed on counts three, four and five, but remained concurrent to the sentence imposed on count six. On count fourteen, defendant was sentenced to an eighteen-month term of imprisonment without parole. The sentence on count eight was unchanged. In the aggregate, defendant was sentenced to a thirty-five-year term of imprisonment with twenty-one-years-and-three-months without parole. Applicable fines and fees were imposed.

Defendant raises the following points on appeal

POINT I

THE PROSECUTOR COMMITTED MISCONDUCT BY IMPROPERLY GLORIFYING DETECTIVE PEREZ AND HIS ROLE AS AN UNDERCOVER OFFICER. (PARTIALLY RAISED BELOW)

POINT II

BECAUSE IT DID NOT INCLUDE A DEFINITION OF ATTEMPTED THEFT, THE JURY INSTRUCTION ON ROBBERY WAS FATALLY DEFECTIVE. (NOT RAISED BELOW)

POINT III

THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE SECOND-DEGREE CHARGE OF CONSPIRACY TO DISTRIBUTE A FIRST-DEGREE AMOUNT OF HEROIN AT THE CLOSE OF THE STATE'S CASE.

POINT IV

THE AGGREGATE [THIRTY-FIVE] YEAR SENTENCE IMPOSED SUBJECT TO THE PROVISIONS OF NERA WAS MANIFESTLY EXCESSIVE.

A. BALANCING OF AGGRAVATING AND MITIGATING FACTORS.

B. IMPOSITION OF CONSECUTIVE SENTENCE.

Additionally, defendant raises the following points in a pro se supplemental brief

POINT I

PROSECUTORIAL MISCONDUCT DURING GRAND JURY PROCEEDINGS WHICH WAS GROSSLY VIOLATIVE OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS.

A. THE PROSECUTOR LIED TO THE GRAND JURY ABOUT THE CONTENT OF THE VIDEO EVIDENCE, IMPROPERLY BOLSTERING THE CREDIBILITY OF THE STATE'S WITNESS AND THAT VIDEO EVIDENCE.

B. PROSECUTOR INTERFERED WITH THE GRAND JURY'S DECISION MAKING PROCESS BY FAILING TO PRESENT CLEARLY EXCULPATORY EVIDENCE WHICH NEGATES DEFENDANT'S GUILT.

POINT II

THE STATE FAILED TO PRESENT EVIDENCE FROM WHICH THE JURY COULD DRAW INFERENCE TO CONCLUDE BEYOND A REASONABLE DOUBT THAT DEFENDANT CONSPIRED TO COMMIT ROBBERY AND POSSESSED CDS [WITH] INTENT TO DISRIBUTE.

POINT III

DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON AN ESSENTIAL ELEMENT OF THE OFFENSE.

POINT IV

THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE FROM WHICH THE JURY COULD CONCLUDE FIRST DEGREE BEYOND A REASONABLE DOUBT.

POINT V

THERE WAS INSUFFICIENT EVIDENCE OF THE EXISTENCE FOR HEROIN OR ITS ANALOG PRESENTED TO HAVE THE JURY SUSTAIN A CONVICTION UNDER ANY PROVISION OF N.J.S.A. 2C:35-5.

I.

We first address defendant's prosecutorial misconduct argument. Defendant argues that the State improperly attempted to bolster Perez's credibility by focusing on the dangers of working undercover. Specifically, defendant points to the State's opening statement, to which there was no objection, wherein the prosecutor explained how the jury will hear about "the brave men and women of the Bergen County [NTF]" and portrayed Perez in heroic terms. Defendant argues, as well, that the State improperly elicited testimony from Perez describing the dangers he faced when orchestrating a drug deal worth $100,000. Defendant's counsel objected to this line of inquiry, but the objection was overruled. During summation, defendant's counsel argued that Perez lacked credibility and lied when testifying about defendant pointing a loaded gun at his head. Defendant's counsel argued that it was illogical for defendant to draw a weapon on Perez since the transaction was about to be completed. In response, during the State's summation the prosecutor addressed Perez's credibility

[Perez] testified right in front of you, you have to judge his credibility, you heard it from the stand right there, he took the stand and looked you in the eye and told you that it was something that was hard to contemplate, that the guy took a gun at him, pointed it directly at him. Everybody has a right after work to go home safe and sound.

But he's one of the people, he's one of the people that puts his life on the line to perform his duty as a sworn police officer. He's the one who goes into the area of danger, just to do his job. Was there a gun or was there not a gun?

Prosecutors primary role in society is to seek justice, however, they are also expected to prosecute crimes. State v. Marshall I, 123 N.J. 1, 152 (1991). The prosecutor is allowed to aggressively sum up the State's case, and may discuss facts shown or reasonably inferred by the evidence. State v. R.B., 183 N.J. 308, 330 (2005). A prosecutor is generally limited to commenting on the evidence and to "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). This does not prevent a prosecutor from making "a vigorous and forceful presentation of the State's case." Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). A prosecutor is given "considerable leeway in closing arguments as long as the comments are reasonably related to the scope of the evidence presented." State v. R.B., 183 N.J. 308, 332 (2005). To reverse a conviction based on prosecutorial misconduct, the conduct must be so egregious that it deprived a defendant the right to a fair trial. State v. Wakefield, 190 N.J. 397, 457 (2007). Additionally, the error must have led the jury to a result it otherwise might not have reached. State v. Taffaro, 195 N.J. 442, 454 (2008).

Applying these legal principles, we conclude that in the application of these legal principles that the State's conduct during the opening statement, the elicitation of Perez's testimony about the dangers of being an undercover officer, and the summation did not constitute prosecutorial misconduct. The prosecutor's opening referring to members of the NTF as "brave" was arguably a form of bolstering but not to the point of misconduct. We hold a similar position on defendant's misconduct argument regarding the testimony of Perez. Even in the absence of this testimony, we find the dangers associated with being an undercover officer would be evident to a reasonable and fair-minded juror. Concerning the prosecutor's summation, defendant's counsel argued during his summation that Perez lied during his testimony regarding the gun being pointed at his head. It was fair comment for the prosecutor to argue in rebuttal that Perez was telling the truth and was a credible witness. The prosecutor did not vouch for Perez's veracity, but called upon the jury to engage in that task by assessing his testimony.

II.

Defendant also argues that the State's conduct during Perez's grand jury testimony constituted prosecutorial misconduct. During the grand jury proceeding, the prosecutor was asked by a juror if the surveillance video from the Hampton Inn showed defendant pointing a gun at Perez. The prosecutor noted that he had not viewed the surveillance video. However, he added that while the events from that day were captured, with some issues as to clarity, "you could see Mr. Greene exiting the car and holding the gun up toward Detective Perez." This statement was incorrect as the video did not depict defendant with a gun or pointing a gun at Perez.1

In defendant's motion to dismiss the indictment he argues that the prosecutor lied to the grand jury, and therefore, the indictment should have been dismissed. The motion judge held the prosecutor's exchange with the juror did not infringe on the grand jury's decision making function and that there was sufficient probable cause to support an indictment.

A grand jury must determine if the State has established the prima facie elements of a crime in order to issue an indictment. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984). An indictment should only be dismissed when it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). This occurs when the grand jury's decision clearly rests on an impermissible basis. Flagg v. Essex County Prosecutor's Office, 171 N.J. 561, 571 (2002).

After reviewing the record of the grand jury proceedings, we conclude that, despite the inaccurate and ill-chosen words of the prosecutor about the video, the remaining "no-video" testimony of Perez established a prima facie basis for the return of the charges contained in the indictment. As such, we further conclude that the indictment was neither manifestly deficient nor based on an impermissible basis. Even had we determined that an accurate reply by the prosecutor regarding the video would have been "exculpatory," failure to present that testimony was rendered harmless given that the petit jurors viewed the video during trial and presumably considered it in reaching its verdict. See State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000).2

III.

Defendant next argues that because the trial court's jury instructions did not include a definition of attempted theft, the charge on robbery was defective. When an appellant raises error on a jury charge, the charge must be read as a whole; not just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). A jury instruction should explain the law to the jury in the context of the material facts of the case. State v. Koskovich, 168 N.J. 448, 506 (2001). Because defendant failed to object to the charge, a showing of plain error must be made when the defendant claims error on appeal. R. 1:7-2; R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions . . . are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). If an instruction for a charge does not include an instruction on attempt, there is no error if there is an instruction on attempt elsewhere in the charge. State v. Smith, 322 N.J. Super 385, 399-400 (App. Div.) certif. denied, 162 N.J. 489 (1999).

Defendant urges the court plainly erred because it charged the jury on first-degree robbery without including an instruction on attempted theft. During the charge, the court provided instruction on attempt relative to the attempted murder charge and the lesser-included offense of attempted aggravated assault. Given this instruction, albeit on other charges, the charge taken as a whole was not erroneous to the extent that it brought about an unjust result. Ibid.

IV.

Defendant further argues that the trial court erred in refusing to dismiss the second-degree conspiracy charge to distribute a first-degree amount of heroin. At the conclusion of the State's case, defendant moved for a judgment of acquittal of that charge. Defendant claimed that the State failed to present sufficient evidence showing that a conspiracy existed to distribute heroin. Defendant argued the evidence demonstrated that he, along with Rodriguez, Segar, and Balcacer, intended to distribute imitation drugs to Perez. In opposition, the State argued that the conspiracy charge was strongly supported in that Perez negotiated with Rodriguez for weeks prior to the transaction to purchase two kilos of heroin. While, in fact, an imitation drug was distributed to Perez, the "agreement" was to distribute heroin. The court, in adopting the State's argument, denied the motion.

A judgment of acquittal may be granted if, giving the State the benefit of all favorable inferences which could be drawn from the evidence, a reasonable jury could not find the defendant guilty of the charge beyond a reasonable doubt. State v. Kittrell, 145 N.J. 112, 130 (1996). The motion must be granted if the State failed to offer evidence on any element of the offense. State v. Samuels, 189 N.J. 236, 245 (2007).

Conspiracy requires an agreement between one or more persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt or solicitation to commit the crime. N.J.S.A. 2C:5-2. The agreement itself is the crime. Samuels, supra, 189 N.J. at 245. There must be evidence of a firm intent to commit the crime provided by the agreement, and it may be proven by circumstantial evidence. Ibid. The inquiry is one of "common-sense." Id. at 246.

Here, there was ample evidence whereby a reasonable jury could find defendant guilty of conspiracy to distribute heroin. Perez testified that Rodriguez assured him that he could secure two kilos of heroin. Defendant's role in the conspiracy was to accompany Rodriguez to the Hampton Inn in furtherance of the transaction. It is of no consequence that the distributed substance was not heroin as the agreement which formed the predicate for the conspiracy was for the sale of a first-degree quantity of heroin. As such, the court properly denied the motion to dismiss the second-degree conspiracy charge.

V.

Defendant argues as well that his thirty-five-year term is manifestly excessive because the trial court failed to conduct the requisite aggravating and mitigating factor analysis. The court found aggravating factors (3), (6) and (9) applied. No mitigating factors were found. From our review of the record, we conclude that the sentencing factors identified by the trial are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). We are satisfied that the sentence was not manifestly excessive or unduly punitive and does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Bieniek, 200 N.J. 601, 608-09 (2010).

Our inquiry in reference to the sentence does not end there. Defendant argues that the court erred in imposing a consecutive term on a certain persons conviction without addressing the appropriate factors. We agree. When a defendant is sentenced for two or more crimes, the sentences shall run concurrently or consecutively "as the court determines at the time of sentence." N.J.A.C. 2C:44-5a. The Supreme Court outlined in State v. Yarbough, 100 N.J. 627 (1985), the following criteria when a defendant is sentenced for multiple offenses at the same time

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) [Eliminated by amendment to N.J.S.A. 2C:44-5a(2)].

[Id. 643-44.]

Here, the court did not provide its reasons for imposing a consecutive term through application of the Yarbough factors. We are therefore constrained to remand for resentencing on that issue.

Defendant's remaining arguments not specifically addressed herein lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed as to the conviction. Reversed and remanded for resentencing. We do not retain jurisdiction.

1 Notably, Perez, subsequent to the prosecutor's comment, testified before the grand jury that the video depicted everything that he referenced in his testimony, including that defendant had a gun. This testimony became a focal point in the cross-examination of Perez at trial.

2 Had defendant challenged the sufficiency of the evidence before the grand jury, once convicted, a challenge on appeal on this ground must present an issue of public importance. State v. Simon, 421 N.J. Super. 547, 551-52 (App. Div. 2011). If we were called upon to decide the issue, we would conclude that the issue would not constitute one of public importance.