STATE OF NEW JERSEY v. HUGH M. PAIGE

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5620-03T45620-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUGH M. PAIGE,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 7, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-07-0988.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Hugh M. Paige, appeals his March 5, 2004 judgment of conviction for third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute on or near a school zone (heroin), contrary to N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7, for which a state prison sentence of five years with a three-year parole disqualifier and appropriate penalties was imposed. We affirm the conviction but remand for re-sentencing.

Defendant's trial took place before a jury on December 8-11, 2003. The jury returned a guilty verdict on all three counts of the indictment. At sentencing, the judge merged count one, third-degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10a(1), and count two, third-degree possession with intent to distribute (heroin), contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) into defendant's conviction on count three.

At approximately 10:00 p.m. on May 13, 2003, New Brunswick police officers Herbst and Dakin were patrolling in their marked police vehicle at the intersection of Welton Street and Throop Avenue, in the area of the Lord Stirling School, when they were flagged down by a reliable confidential informant (CI) and informed that individuals at "42 Hassert Street were out of heroin and they would re-up of heroin around midnight that night." After having been informed of the potential drug re-supply transaction and thereafter monitoring the area for suspicious activity, at approximately midnight the officers noticed defendant and another man in a close face-to-face conversation on Welton Street, between Throop Avenue and Carman Street, about 100 feet from the school. Suspecting that the two were engaged in a drug transaction, the officers approached to investigate.

As the officers approached, the man speaking to defendant, who was never apprehended or identified, turned around quickly and fled down Carman Street. Officer Herbst testified that defendant, as they approached, "turned around, looked at us, looking surprised and stunned. He was now attempting to walk away from us in the opposite direction of the other suspect. While doing so in his right hand he dropped down an object . . . down the side of his leg." The object recovered by Officer Dakin and later determined to be a "brick" of heroin was a neatly-wrapped brown package containing five separate bundles, each containing ten packets of heroin stamped "Happy Days."

At trial defendant testified that while on his way home from a long-time friend's home on the night of May 13, 2003, he was approached my a man unknown to him who asked for a cigarette light. After he lit the man's cigarette and was continuing to walk home, the police turned the corner and stopped him. Officer Herbst patted him down and discussed with defendant the fact that defendant was only released from prison twelve days prior and indicated he could go when Officer Dakin came back. Defendant then testified that "Officer Dakin comes back around the corner, he walks over to [Herbst], and he whispers something in his ear." "[H]e said, um, I got something of yours. I said you ain't got nothing of mine and whatnot." "At this point officer Dakin taking -- reaches in front of me, shows me a package that's ripped open. He says this yours? I say, come on, man, you know that shit not mine. So he's like, yeah, it's probably the guy went around the corner, you know what I'm saying? He said but tell us his name. I said I don't know his name."

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE PROSECUTOR'S FAILURE TO PROVIDE THE DEFENSE WITH AN EXPERT REPORT OR A SUMMARY OF THE FACTS AND OPINIONS TO WHICH ITS EXPERT WAS EXPECTED TO TESTIFY VIOLATED THE RULES OF DISCOVERY AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT II

THE PROSECUTOR'S IMPROPER CROSS-EXAMINATION OF DEFENDANT IN WHICH HE FORCED DEFENDANT TO CHARACTERIZE THE STATE'S WITNESSES AS LIARS, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

POINT III

IMPOSITION OF THE MAXIMUM TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FIVE-YEAR TERM.

I

Defendant contends that the State's failure to provide prior to trial an expert's report or a summary of the facts or circumstances to which its expert was expected to testify as required by Rule 3:13-3 deprived him of his right to a fair trial. Defendant was notified on July 7, 2003, on a fact sheet attached to the discovery sent to him, that the State would call an expert at trial. However, it was not until the pre-trial hearing on December 8, 2003 that the prosecutor notified defense counsel that he would specifically call Middlesex County Lieutenant (Lt.) Richard Dixon as an expert on drug distribution.

Lt. Dixon testified that: (1) a large amount of heroin (fifty bags) packaged in a group of glassine envelopes with a stamp on them was not intended for personal use but was intended for street-level sale; and (2) that "[a] mule is slang in the drug trade for an individual who transports controlled substances from point A to point B. Whether that individual gets paid to do that, or is actually involved in the whole operation, a mule is no more than a transporter."

Defendant claims that the court abused its discretion in permitting Lt. Dixon to testify because the prosecutor violated Rule 3:13-3(c)(9), requiring a prosecutor to provide the name and address of any expert witness, along with the expert's qualifications, the subject matter to which the expert is expected to testify, and if no report is prepared, a statement of the factual basis for the opinion to which the expert is expected to testify and the ground for each opinion. The rule provides that if not furnished thirty days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial. (emphasis added). The court declined to exercise its discretion to bar the testimony, but permitted defense counsel to question Lt. Dixon before he testified. Defendant claims that had his counsel been aware of the expert's proposed testimony before trial that he would have either formulated a different trial strategy or he would have prepared to counter the expert's suggestion that defendant was a "mule."

In State v. Toro, 229 N.J. Super. 215 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), the defendant appealed his conviction for possession of a CDS with intent to distribute, in a factual context similar to the facts present here. The prosecutor failed to notify the defense that a member of the Morris County Prosecutor's Office involved in investigating organized narcotics activity would be called as an expert. Id. at 223. However, the trial judge determined that even if the defendant had been aware of the expert's proposed testimony before trial, he would not have been able to find an expert to counter the prosecution's expert and testify "that a person might possess more than a pound of cocaine with a purity of 65% solely for personal consumption." Ibid. The judge allowed the expert's testimony but to avoid any disadvantage the defense might experience due to lack of an expert report, the judge indicated that he would allow defense counsel more leeway than he would normally in cross-examination. Ibid.

In Toro, we held,

A trial court has broad discretion in determining what sanctions, if any, to impose when a party fails to comply with discovery obligations. We find no abuse of discretion in this case. The trial judge correctly concluded that defendant probably could not have found an expert to dispute [the expert's] testimony that the quantity and purity of the cocaine found in the package was indicative of commercial trafficking in the drug. Moreover, even if such testimony was available, defendant probably would not have offered it in order to avoid distracting the jury's attention from his defense that the cocaine belonged to Mazo and that defendant was unaware of its presence in the car.

[Id. at 223-24 (citations omitted).]

In State v. Marshall, 123 N.J. 1, 133-34 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), the defendant challenged the trial court's denial of his motion for a mistrial based on the State's discovery violation. Defendant argued that the denial by the trial court constituted an abuse of discretion and thus, reversible error. Id. at 133. The trial court, however, concluded that defendant had not been prejudiced by the prosecutor's use of interview notes not turned over by the prosecutor during discovery. Id. at 134. Our Supreme Court found no error in the trial court's decision. "The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." Ibid. "Under these circumstances, where the State's discovery-rule violation caused no apparent prejudice to defendant, the grant of a mistrial would have been manifestly inappropriate." Ibid.

We are satisfied that the trial court's decision to permit testimony by Lt. Dixon, despite the lack of the appropriate Rule 3:13 report, was an appropriate exercise of discretion because Lt. Dixon's testimony did not prejudice defendant. Defendant was charged with possession of CDS in a school zone with intent to distribute. Defense counsel should have anticipated the drug trafficking issues raised by Lt. Dixon's testimony. Given the charges against defendant, there should have been no surprise that any expert witness for the prosecution would give testimony relevant to the topic of illicit drug sales and the role of a drug "mule." In addition, on the July 7, 2003 cover sheet attached to discovery materials, the State notified defendant that it would call an expert witness at trial. After being given the opportunity to speak to the expert before he testified, defense counsel did not ask for further time to prepare questions for cross-examination. Defense counsel contends, however, that in questioning Lt. Dixon, he would have sought to show the implausibility of defendant purchasing more than $1,000 in heroin in that he had only been released from prison twelve days prior. However, defendant claimed, during his own testimony, that he was not guilty because the heroin found did not belong to him, and that he was simply lighting a cigarette for the unidentified man, after which he was arrested. We are satisfied that defendant's claim that his defense was prejudiced by the prosecution's expert testimony because of the lack of an expert report is without merit.

II

Defendant asserts that the prosecutor's misconduct deprived him of his right to a fair trial by forcing him to characterize the State's witnesses as liars during cross-examination. The line of questioning during the prosecutor's cross-examination of defendant proceeded as follows:

Q: Okay. Now, your testimony is that you were just minding your business at the wrong place at the wrong time, is that correct?

A: Yes, sir.

Q: And that the police officer said that you -- strike that. You're saying that the police officer lied, that he didn't see you drop this object to the ground, is that correct?

A: Yes, sir.

. . . .

Q: Okay. And how long did you stay there?

A: Approximately thirty minutes, half hour.

Q: So everything that the police officer -- you were here when -- you heard all the testimony, right?

A: Yes.

Q: So everything that the police officers testified to is a lie?

A: Yes.

Q: And is there anything that is not a lie?

A: Can you be more specific?

Q: Okay. You were there when -- you were there at the time that they said they were, right?

A: Yes.

Q: And you were there with someone else having a conversation or lighting a cigarette, right?

A: Never had a conversation.

Q: Okay. But you were there with this other individual at the time they saw you?

A: No.

Q: No? So that's a lie?

A: That's a lie.

Q: Did you -- police officer didn't see the other guy run around Carman Street?

A: They seen the other guy walking.

Defendant contends that such questioning was inappropriate and should not have been countenanced because the questioning frames the case to the jury in terms of believing one witness or the other, which erodes the State's burden of proof beyond a reasonable doubt.

Defendant's argument is similar to that of the defendant in State v. T.C., 347 N.J. Super. 219, 237-39 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), who sought reversal of his conviction on grounds of alleged prosecutorial misconduct because on cross-examination the prosecutor asked her whether the State's witnesses had been lying when they testified against her. This court held that although the line of questioning was inappropriate, it did not constitute a basis for reversing the defendant's conviction. Id. at 238.

We first noted that, as here,

defendant objected to none of that questioning at trial. Thus, the appropriate standard of review is plain error - a finding that the impropriety was clearly capable of producing an unjust result. Defendant's failure to object suggests that her counsel did not believe the conduct was prejudicial and also made it impossible for the court to take timely curative action to ameliorate any adverse effect from the improper questioning.

[Ibid. (citations omitted).]

As in T.C., no applicable objection to the cross-examination was made by defense counsel. Thus, it follows that the plain error rule applies here as well.

As the T.C. court further explained,

The prosecutor's questions concerned specific inconsistencies between the testimony of the defendant and that of the State's witnesses. The prosecutor did not act improperly in pointing out the inconsistencies; the impropriety lay only in the form used to develop the point. There was no misrepresentation or mis-characterization of anyone's testimony. The discrepancy between the testimony of defendant and that of the witnesses testifying for the State was clear and virtually self-evident. The prosecutor simply highlighted and emphasized those inconsistencies.

[Ibid.]

In the present case, the testimony of defendant on direct examination told a completely different story from that testified to by officers Herbst and Dakin. They both testified to witnessing a close conversation between the defendant and an unknown man, in which both individuals appeared to be focused down into their hands, indicative of a drug-related transaction. Defendant testified that he didn't know the man who had stopped and asked him for a light, and that they began walking in separate directions at the time the officers approached. We are convinced that as in T.C., the discrepancies between the stories were evident, and when the prosecutor highlighted them upon cross-examination the defendant was not unfairly prejudiced. Defendant's argument of prosecutorial misconduct constituting plain error is without merit.

III

Defendant argues that the court's imposition of the maximum five-year term of imprisonment for a third-degree crime violated his constitutional rights to trial by jury and due process of law, because in finding aggravating factors the court made factual findings not proved to a jury beyond a reasonable doubt. The judge found the following aggravating factors: (3) the risk that defendant will commit another offense; (6) the extent of defendant's prior record and the seriousness of the offenses of which he was convicted; (9) the need for deterring defendant and others from violating the law; and (11) the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices, in support of his decision to impose a sentence above the presumptive term. N.J.S.A. 2C:44-1. The judge found no mitigating factors. Defendant challenges his sentence because each of those findings (aggravating factors) constitute facts other than the fact of a prior conviction, and none of those findings is embodied in the jury verdict or admitted by the defendant.

In State v. Natale, 184 N.J. 458, 466 (2005) (Natale II), our Supreme Court held:

Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.

Because in this case defendant's sentence was greater than the presumptive term of four years, a remand is necessary in the form of a new sentencing hearing.

The remedy chosen by our Supreme Court in Natale II to cure this constitutional problem in New Jersey was the elimination of presumptive terms in sentencing. Id. at 487. "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Ibid. "Judges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating factors preponderate." Ibid. The court elaborates on this point by saying, "We suspect that many, if not most, judges will pick the middle of the sentencing range as the logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence." Id. at 488. However, the Court notes that this methodology is not compelled. Ibid.

The holding in Natale II is recognized as a "new rule of law," and has been accorded a degree of retroactivity known as "pipeline retroactivity." Id. at 492-94. "Pipeline retroactivity" is defined as "applying our holding to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal. . . ." Id. at 494. Accordingly, defendant's appeal properly falls under the "pipeline" scheme, and his sentence must, therefore, be re-evaluated at a new sentencing hearing according to the applicable aggravating factors, mitigating factors, statutory range, and based on the record at the prior sentencing. Id. at 495. In regards to the new sentencing hearing, the Natale II court held:

As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Natale II, supra, 184 N.J. 495-96. See also State v. Abdullah, 184 N.J. 497, 504-12 (2005); State v. Young, 379 N.J. Super. 498, 514-15 (App. Div. 2005).]

Defendant also asserts that the judge erred in finding statutory aggravating factor (eleven) in sentencing him to a five-year term of imprisonment with three years of parole ineligibility. Defendant's contention that statutory aggravat-ing factor (eleven) does not apply is correct. Defendant was convicted of possession of CDS with intent to distribute, a conviction that mandates a three-year period of parole ineligibility, thus mandating a term of imprisonment for at least three years. Defendant correctly relies on State v. Dalziel, 182 N.J. 494, 502 (2005), which re-affirmed that statutory aggravating factor eleven is "inapplicable unless the judge is balancing a non-custodial term against a prison sentence." Therefore, at the time of defendant's new sentencing hearing, aggravating factor eleven should not be taken into consideration by the sentencing judge.

Accordingly, we affirm defendant's conviction but remand this matter for a new sentencing hearing in accordance with this

decision. On the remand, we direct the sentencing judge to follow the dictates of Natale II in imposing a proper sentence. We do not retain jurisdiction.

Affirmed on conviction; remanded for re-sentencing.

 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

(continued)

(continued)

17

A-5620-03T4

December 12, 2005

 


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