STATE OF NEW JERSEY v. KYLE R. BURNETT

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1738-04T41738-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE R. BURNETT,

Defendant-Appellant.

________________________________________________________

 

Submitted September 19, 2006 - Decided

Before Judges Coburn and R.B. Coleman.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, I-2189-06-02 and

I-2318-06-02.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Cynthia H. Hardaway, Designated

Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for

respondent (Robyn B. Mitchell, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury found defendant, Kyle R. Burnett, guilty under Indictment 2318-06-02 of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count 1); second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (Count 2); and third degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (Count 3). The judge merged Counts 1 and 3 into Count 2 and sentenced defendant to a mandatory extended term as a repeat drug offender of imprisonment for thirteen years with six years of parole ineligibility. On Indictment 2189-06-02, defendant pled guilty to receiving stolen property, N.J.S.A. 2C:20-7, and the judge sentenced him to imprisonment for three years, consecutive to the sentence imposed on the other indictment.

On appeal defendant contends that the trial judge erred in permitting the arresting officer to provide expert testimony. He also contends that the verdict was against the weight of the evidence and that the judge erred on sentencing when she treated as an aggravating factor the fact that the possession took place in a school zone.

Since defendant did not move before the trial judge to set aside the verdict on the ground that it was against the weight of the evidence, he may not make that argument here. R. 2:10-1; State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). Furthermore, the argument on appeal does not address defendant's guilt on the first and third counts; rather, it is limited to the school zone charge, and consists of the claim that the first time the arresting officer saw drugs was when the motor vehicle in which defendant was a passenger was stopped, which was not in a school zone. But the arresting officer had observed the defendant seated in the motor vehicle a few minutes earlier in a school zone and had followed him to the point of arrest, where the drugs were. The jury was entitled to infer that the possession related back to the earlier location. Thus, the claim has no merit.

After carefully considering the record and briefs, we are satisfied that defendant's argument about the arresting officer's opinion testimony is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). But we add the following comments, nonetheless.

The testimony was in many respects similar to that given by expert witnesses in narcotics cases with respect to the distinctions between personal possession and possession with intent to distribute. Based on the record, the officer clearly qualified as an expert, even though he was not formally offered as such. Both sides questioned him on his opinions in detail. And in summation, defense counsel argued at length that the officer had been guessing with respect to his opinions, and noted the absence of expert testimony in this manner: "That's also something probably that a drug expert would have told you. But, we don't have the benefit of that."

Since there was no objection below, reversal is only appropriate if there was an error clearly capable of producing an unjust result. R. 2:10-2. Generally, we "have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where testimony might otherwise be deemed necessary." State v. Labrutto, 114 N.J. 187, 198 (1989). Thus, for example, in State v. Jackson, 124 N.J. Super. 1, 4 (App. Div.), certif. denied, 63 N.J. 553 (1973), we held that based on his background and training, a detective could provide a lay opinion that defendant was under the influence of narcotics. Although the testimony in this case was more expansive, it certainly came from an experienced narcotics officer, and it had the ring of truth. Although the State probably should have expressly offered the officer as an expert, it appears to us that defendant did not object for strategic purposes; namely, to preserve the ability to argue to the jury that the weakness in the State's case was its lack of an expert. For all of those reasons, we are satisfied that the error, if any, in admitting the testimony, was not capable of producing an unjust result. Therefore, reversal on this point would be wrong.

On the other hand, the sentence imposed may not stand because the judge erred in treating the school zone aspect of Count 2 as an aggravating factor. This is the judge's explanation of that portion of her sentencing decision:

I do find that aggravating factor two applies, namely that the crime occurred within 1,000 feet of a school. I am not going to be imposing a separate sentence on that and, in fact, I believe that it does merge with count two.

So, therefore, it's not a double count, because you are not going to be sentenced on the school zone count of the conviction, but the fact -- but I can take note of the fact that the distribution in question did occur within 1,000 feet of a school. And that is an aggravating factor which can be considered and I give that factor fairly heavy weight.

Although it is true that aggravating factors relating to a merged count can be considered, State v. Doss, 310 N.J. Super. 450, 461 (App. Div.) certif. denied, 155 N.J. 589 (1998), here the location of the offense by itself is an element of the merged crime and not an aggravating factor. And it is certainly outside the scope of aggravating factor 2. See N.J.S.A. 2C:44-1(a)(2). Therefore, we remand for re-sentencing on Count 2.

Affirmed in part; reversed in part; and remanded for re-sentencing.

 

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A-1738-04T4

October 16, 2006