STATE OF NEW JERSEY v. RAHEEM DANCY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4275-03T44275-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM DANCY,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 13, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 02-10-3838.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Raheem Dancy, was convicted of a series of drug offenses, all of which arose out of a single incident on August 14, 2002, namely, second-degree conspiracy to possess and to possess with intent to distribute a controlled dangerous substance (CDS), namely Methylenedioxyamphetamine or Methylenedioxymethamphetamine (MDMA, commonly known as Ecstasy), N.J.S.A. 2C:5-2 (count one); third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), (b)(3) (count three); and second-degree possession with intent to distribute a CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four). The judge sentenced defendant to seven years imprisonment on count one. The judge ordered that count two merged with count three. On count three, the judge imposed an extended term sentence pursuant to N.J.S.A. 2C:43-6f of seven years imprisonment with a three-year parole disqualifier. On count four, the judge sentenced defendant to seven years imprisonment. All sentences were ordered to be served concurrently, thus resulting in an aggregate term of seven years imprisonment with a three-year parole disqualifier.

On appeal, defendant presents these arguments:

POINT I

THE PROSECUTOR'S ACTIONS DURING THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT SO EGREGIOUS AS TO DENY DEFENDANT A FAIR TRIAL.

POINT II

THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONSTITUTION, AMEND. VI.

POINT III

THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ERRED IN PERMITTING IMPROPER EXPERT TESTIMONY BEFORE THE JURY.

POINT IV

THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT TO HIS RIGHT TO A FAIR TRIAL.

A. ADMISSION OF DAYTIME PHOTOGRAPHS OF THE CRIME SCENE WERE UNDULY PREJUDICIAL AND MISLEADING SINCE THE ALLEGED CRIME HAPPENED AT NIGHTTIME.

B. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AS TO DEFENDANT'S FAILURE TO TESTIFY OVER HIS OBJECTION.

POINT V

THE SENTENCE IMPOSED ON DEFENDANT IS EXCESSIVE.

A. THE TRIAL COURT ERRED IN IMPOSING A $3,000.00 D.E.D.R. PENALTY INSTEAD OF A $2,000.00 PENALTY.

B. THE TRIAL COURT FAILED TO APPROPRIATELY CONSIDER AGGRAVATING AND MITIGATING FACTORS WHEN SENTENCING RAHEEM DANCY AND FAILED TO STATE FINDINGS OF FACT SUPPORTING THE SENTENCE IMPOSED.

We find that additional mergers should have been ordered, which is conceded, at least in part, by the State. Other than with respect to merger, we reject defendant's arguments and in all respects we affirm.

On the evening of August 14, 2002, Newark police officers established a surveillance in the area of 11th Street and Avon Avenue. At about 9:25 p.m., Detective Johnny Whitaker observed defendant and his co-defendant Alshatee Green standing side by side. A female approached defendant, engaged in a brief conversation with him, and handed him paper currency, which he placed in his pocket. Defendant then motioned toward Green, who removed a potato chip bag from his pants pocket. Green removed an object from the bag and handed it to the female. The female left the area on foot and was never apprehended. The area where the interaction occurred was well-lighted and Whitaker observed the participants at close range. He was walking the entire time he made the pertinent observations and was within a distance of seven feet to thirty-five feet of the participants as the events unfolded.

As soon as Whitaker walked far enough away from the participants to be able to safely communicate by radio to back-up officers, he broadcasted the description of defendant and Green and instructed the other officers to detain them. Other officers immediately approached defendant and Green, revealing their identity as police officers. The two crisscrossed and began walking away in different directions. As Detective William Thomas was about to grab Green he discarded the potato chip bag, which Thomas retrieved from the ground. The bag contained twenty-four Ecstasy tablets. Defendant and Green were placed under arrest. A search of their persons revealed that defendant possessed $210 in currency and Green possessed $152 in currency. The location of the events was within 500 feet of Woodman Village, a public housing complex.

Defendant argues that he was denied a fair trial because of prosecutorial misconduct. He complains that the prosecutor improperly elicited testimony from Whitaker that the investigation that evening pertained to complaints of "gang activity." During cross-examination by Green's attorney, Whitaker provided additional comments regarding gang activity in the area where these events occurred. With respect to Whitaker's testimony on direct examination, his response was given to an open-ended question asking him to "explain the assignment of the officers that evening." When he mentioned gang activity in his response, the defense immediately objected, the prosecutor agreed that the response was improper, and the judge gave a prompt and forceful curative instruction. The judge informed the jurors that the comment was stricken and directed them to disregard it.

Throughout the trial, it was the defense strategy to impugn the reliability of the identifications made by Whitaker. There were other individuals on the street that evening in close proximity to the events involving defendant and Green. Issues were raised regarding the degree of lighting, the distance from which Whitaker's observations were made, the presence of parked cars, the effect of moving vehicles obstructing his view, and the like. Part of this strategy was to suggest to the jury that knowing this was an area of known gang activity, Whitaker was more concerned with his own safety than he was with making careful and reliable observations. Both defense counsel emphasized the unreliability of the identifications in their closing arguments. Green's attorney argued that Whitaker's identification was "not reliable" because "he's scared, he's nervous. All these emotions are taking place inside of him. And while he's in that state o[f] mind or in that emotional condition, he wants you to rely on his observations."

As stated, it was during cross-examination of Whitaker by Green's attorney that the subject of gang activity was again raised. Whitaker never suggested that he suspected defendant or Green of being gang members. Indeed, when Green's counsel suggested that Whitaker believed the two individuals he was watching were "possibly gang members," Whitaker denied it. Counsel for defendant never objected to the questioning by Green's attorney in this regard.

Whitaker's unsolicited comment regarding gang activity on direct examination was improper. However, to evaluate whether the impropriety deprived defendant of a fair trial, we must consider "whether defense counsel made a timely and proper objection, whether the remarks was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). All of those things happened here, ameliorating any potential prejudice to the defense. The gang issue was subsequently resurrected by Green's attorney, with the presumed acquiescence of defendant's attorney, who did not object, as part of the overall defense strategy. Having chosen this course at trial, defendant can hardly advance it as a basis for reversal on appeal.

On a related issue, defendant further complains that his attorney provided ineffective assistance by not objecting to questioning regarding gang activity posed by Green's attorney. For a defendant to be entitled to relief because of a claim of ineffective assistance of counsel, he must satisfy the Strickland/Fritz test, and establish that counsel's performance was deficient and that a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). We find no deficiency in the performance of defendant's trial counsel for failing to object to the gang-related questions posed by Green's attorney. This questioning was part of the strategy shared by both defendants. We will not second-guess a reasonable strategy employed at trial as a basis for finding deficient attorney performance. State v. Marshall, 148 N.J. 89, 157 (1997).

We next consider defendant's argument that the trial judge erred in permitting improper expert testimony before the jury. The State presented Detective Reginald Holloway as an expert in the field of narcotics activity. The prosecutor posed to Holloway a hypothetical question encompassing facts testified to by the police witnesses. Holloway opined that the twenty-four tablets seized were possessed for purposes of distribution. He based that opinion on the totality of the circumstances encompassed within the hypothetical question, including the observed hand-to-hand transaction, the quantity of drugs and other surrounding circumstances. He explained the procedure of utilizing a double-banker system and the price of Ecstasy on the street and its relationship to the currency found on the persons of defendant and Green. He explained that unlike some other drugs, Ecstasy tablets are held loose rather than being individually packaged, and he described other circumstances involving drug activities that would be beyond the knowledge of the average juror.

We reject defendant's argument that Holloway's opinion came down to nothing more than a bolstering of Whitaker's testimony that he observed a drug transaction with the unidentified female and that the occurrence of that transaction was the only basis upon which Holloway based his expert opinion that the seized CDS was possessed for purposes of distribution. Our careful review of the transcript of Holloway's testimony leads us to conclude that his opinion was based upon a multiplicity of factors, all of which the jury could reasonably have found to exist based upon the evidence before it.

The use of expert testimony was appropriate here to assist the jury in understanding the evidence and determining a fact in issue. N.J.R.E. 702. State v. Berry, 140 N.J. 280, 292-93 (1995). Holloway never opined that defendant was guilty of any charge against him. The expert's testimony was within the boundaries prescribed by State v. Odom, 116 N.J. 65 (1989), as more recently reiterated in Berry, supra, 140 N.J. 280.

Defendant's argument pertaining to the admission of photographic evidence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's argument that the trial judge erred in instructing the jury regarding defendant's failure to testify over his objection is not supported by the record. When the judge first raised the issue at the charge conference, Green stated he did not wish to have the instruction given. However, his attorney stated that was their position "right now" and that he "will continuously talk to Mr. Green about that in conjuncture [sic] with [defense counsel] previously talking to Mr. Dancy's [sic], so we're all as one -- on one accord." When the judge addressed defendant, he stated he did wish to have the instruction. Because of the different positions expressed by the two defendants, the judge stated he would "leave it open as to whether I charge until we return here tomorrow morning." Both attorneys agreed, and the judge summarized that he would "conference as co-counsel or codefendants's counsel and inform me tomorrow morning about the final determination."

The record proceedings on the next day began with the summations, immediately followed by the judge's charge to the jury. There was no further discussion on the record prior to the charge regarding the instruction pertaining to the defendants' choice not to testify. In the midst of the charge, the judge interrupted himself and invited counsel to sidebar, where this colloquy occurred:

THE COURT: I forgot to ask to finally resolve the issue about the defendant's election to testify charge, whether I will attest to Mr. Dancy only?

[Defendant's counsel]: Oh no. I mean, --

THE COURT: No, I -- to both. To Mr. Green, as well? Okay.

The judge then gave the charge as to both defendants. Neither attorney objected, and when, at the conclusion of the charge, the judge invited comments at sidebar, all counsel declined. We infer from this that both defendants requested that the charge be given. In any event, that had been defendant's record position the previous day. There was no error in this regard.

Finally, we address the sentence. Because the criminal object of the conspiracy alleged in count one was no broader than the criminal conduct substantively alleged in counts two and three, count one merges with counts two and three. State v. Hardison, 99 N.J. 379, 386-91 (1985). The trial judge correctly merged count two, possession, with count three, possession with intent to distribute. State v. Rechtschaffer, 70 N.J. 395, 411-12 (1976). Finally, count three, possession with intent to distribute, is a lesser-included offense of count four, possession with intent to distribute within 500 feet of a public housing facility. Despite the presence of the antimerger provision in N.J.S.A. 2C:35-7.1c, count three does merge with count four. State v. Gregory, 336 N.J. Super. 601, 602 (App. Div. 2001). However, the mandatory period of parole ineligibility imposed on count three pursuant to N.J.S.A. 2C:43-6f survives the merger. See State v. Gonzalez, 123 N.J. 462 (1991).

With respect to the length of the sentence imposed, we find no basis to interfere. The judge's findings regarding aggravating and mitigating factors are supported by the record. The judge did not double count defendant's prior record (which triggered imposition of an extended term) as an aggravating factor, and although the judge found a preponderance of aggravating factors, he imposed a presumptive sentence. We are satisfied that the sentence is not manifestly excessive or unduly punitive, that it is in accordance with the sentencing guidelines in the Code, and that it does not constitute an abuse of discretion. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

The matter is remanded for entry of an amended judgment of conviction providing for a sentence of seven years imprisonment with a three-year period of parole ineligibility on count four and imposition of a $2,000 Drug Enforcement and Demand Reduction Penalty and all other applicable monetary assessments and loss of driving privileges on that count, and for vacation of the sentences imposed on the remaining counts. In all other respects, the judgment of conviction is affirmed.

 

Co-defendant, Alshatee Green, was tried jointly with defendant, and he was convicted of the same four counts as defendant.

Although denominated a second-degree offense, the narrative description of the offense in count one charges only a conspiracy to "possess a controlled dangerous substance and possess with intent to distribute a controlled dangerous substance . . . ," the third-degree crimes that are substantively charged in counts two and three. Count one does not allege a conspiracy to commit any second-degree crime, such as that substantively charged in count four, possession of a CDS with intent to distribute within 500 feet of a public housing facility. Therefore, it appears that count one charges a third-degree crime. See N.J.S.A. 2C:5-4a. In light of our disposition, in which we determine that the conspiracy count should merge with the substantive counts of which defendant was convicted, we need not address the gradation of the conspiracy count.

In his pronouncement of sentence, the judge merged count two with count three. The judgment of conviction incorrectly states that count two merged with count one. In the case of such a discrepancy, the transcript of pronouncement of sentence prevails. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-4275-03T4

September 21, 2005