STATE OF NEW JERSEY v. HUBERT EVANS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6261-03T46261-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUBERT EVANS,

Defendant-Appellant.

_______________________________

 

Submitted: November 29, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-08-1005.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of a motion to suppress, defendant Hubert Evans was convicted by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two), and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three). The court merged the first two counts into the third count, and sentenced defendant to an extended term as a persistent offender to ten years with a five-year parole disqualifier. The court also imposed the statutorily mandated fines, penalties and fees.

The convictions arose out of an undercover drug surveillance of the 300 Block of Bond Street in Elizabeth, a high-drug trafficking area. At about 9:30 p.m. on April 17, 2002, Officers Victor Arena and Michael Gregory observed defendant standing on the corner and walking back and forth near an empty lot. The officers were directly across the street from defendant and observed his activities through binoculars. A woman approached defendant and engaged him in brief conversation. Defendant then walked to the empty lot and retrieved a brown paper bag from a cinderblock wall, shook some items into his hand, and put the bag back into the wall. Defendant then walked to the front of the lot and handed a small white item to the woman in exchange for currency. The transaction occurred within one thousand feet of three different schools.

After observing defendant's activities, the officers walked from their concealed location to their unmarked police vehicle and drove down the block. Defendant observed the officers as they were walking towards the lot. He promptly discarded a white bundle containing three vials of cocaine, which was retrieved by Officer Arena. The officer then retrieved seven more vials of cocaine from the brown paper bag hidden in the wall.

Defendant had $65 and dice in his possession when he was searched at headquarters. He had no identification on him and gave the arresting officers the name "Tymir Williams" and signed that name on the property slip. Defendant's true identity was not discovered until an officer at headquarters recognized him and told the arresting officers that he knew defendant as "Huby Evans."

On the basis of this testimony, the court denied defendant's motion to suppress the cocaine. At trial, the State also presented the testimony of an expert who opined that the drugs were possessed with intent to distribute.

Defendant presented the testimony of Antoine Carter, a family friend, who came forward about nine months after the incident. Carter testified that at the time of the incident, he was sitting on the porch of his aunt's house at 308 Bond Street. He observed defendant shooting dice with five or six other men. The witness claimed the officers asked defendant, one of the other men and a woman to approach the police car. According to Carter, the police searched around and eventually let the others go, but they arrested defendant.

Officer Gregory rebutted the claim that he and his partner had detained two additional people and permitted them to leave after defendant was arrested.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN ALLOWING ADMISSION OF TESTIMONY CONCERNING DEFENDANT'S USE OF AN ALIAS FOLLOWING HIS ARREST.

POINT II

THE LOWER COURT ERRED IN DENYING THE SUPPRESSION MOTION.

POINT III

THE SENTENCING COURT ERRED IN IMPOSING AN EXTENDED TERM SENTENCE.

POINT IV

THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT V

THE SENTENCE IMPOSED VIOLATES DEFENDANT'S RIGHT TO TRIAL BY JURY AND DUE PROCESS.

Defendant reiterates his first two arguments in a pro se brief. He also advances the following arguments:

POINT I

Petitioner argues that the judicial officer failed to make probable cause determination for the issuance of complaint-warrant after he was arrested without a warrant[ ] which violated his Fourth Amendment constitutional right to a judicial court probable cause determination which is mandated by the Court Rules Governing Criminal Practice and Procedures.

POINT II

Appellant contends that the trial court failed to give a proper instruction or Model Charge to the jury of general description of sim[i]larity of the suspect out-of-court identification must be proven by State beyond reasonable doubt constituted deprivation of a[] constitutional right to a fair trial.

POINT III

The appellant argues that the Pretrial Identification Procedure was highly suggestive which le[]d up to an illegal arrest, and the misidentification of the appellant in violation of U.S.C.A. 4 and the New Jersey State Constitution Art. 1 7.

POINT IV

The appellant argues that arrest without warrant bypasses the safeguards provided by objective predetermination of probable cause and substitutes the far less reliable procedure of an after-the-event justification for arrest or search, too likely to be subtly influenced by familiar shortcomings of hindsight judg[]ment. U.S.C.A. Const. Amend. 4, New Jersey State Const. Art. 1 7.

POINT V

The appellant argues that the arresting officers issued a false police/investigation report which deprived the appellant of his liberty in violation of the U.S.C.A. 4. and Art. 1. paragraph 7. of the New Jersey Constitution.

POINT VI

The appellant argues that the Office of the Public Defender violated the[i]r own policy to provide for indigent defendants by not providing a fingerprint expert for his defense before trial.

POINT VII

The appellant argues that the prosecution used calculative methods to gain the convictions of this defendant by committing judicial misconduct and the act of perjury in violation of this defendant's New Jersey and Federal constitutional rights to a fair trial, and due process to equal protection.

We are not persuaded by any of the arguments advanced by defendant except those relating to the constitutional challenge to his sentence. We affirm the conviction, and we reverse the sentence, remanding it for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).

Defendant's motion to suppress the cocaine was properly denied. We are satisfied the officers had probable cause to arrest defendant for engaging in the sale of drugs and to retrieve the bag of cocaine that defendant threw to the ground and the stash of cocaine hidden in the wall. Based on their expertise in narcotics, the officers' observations of defendant retrieving items from a stash location, participating in a hand-to-hand exchange with the female customer, and discarding a white bundle when they approached him, gave them a well grounded suspicion or belief that a crime had been committed. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000); State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. l99l). Defendant's argument that the officers could have misinterpreted the innocent action of handing dice back and forth is based solely on Carter's testimony and completely ignores the totality of the observations of the experienced narcotics officers.

The trial court properly allowed the State's witness to testify, over defense counsel's objection, that defendant had used an alias to identify himself after his arrest, as demonstrating consciousness of guilt. See State v. In re J.R., 244 N.J. Super. 630, 636 (App. Div. 1990); State v. Johnson, 216 N.J. Super. 588, 612 (App. Div. l987). The trial court gave an appropriate limiting instruction to that effect:

If you find the defendant, fearing he would be charged with the crimes alleged in the indictment, gave a false name for the purpose of evading the charge, then you may consider that fact, in addition to all the other evidence in the case as an indication of the consciousness of guilt. The use of another's name may only be considered as consciousness of guilt if you should determine the defendant's purpose in giving another name was to avoid prosecution of the crime charged.

Moreover, neither party referred to defendant's alias during summations, and the alias had no improper connotation that would have been prejudicial to defendant. See State v. Salaam, 225 N.J. Super. 66, 73 (App. Div. 1988)(An alias like "drug dealer," which indicates that a defendant belongs to a criminal class, is substantially prejudicial to his right to a fair trial.).

None of the arguments raised by defendant in his pro se brief have any merit warranting further discussion. R. 2:11-3(e)(2).

We are satisfied the trial judge performed the appropriate Dunbar analysis and sentenced defendant, who concedes he is a persistent offender, to an extended term. N.J.S.A. 2C:44-3a. The court found aggravating factors three, six and nine based on defendant's extensive record of indictable convictions commencing in l985, demonstrating that at thirty-eight years old he is essentially a career criminal. Defendant's sole basis for avoiding an extended term is his drug dependency, which our Supreme Court has recognized as not being a mitigating circumstance. State v. Ghertler, 114 N.J. 383 (1989).

We reject defendant's argument that jury fact-finding was a prerequisite to his sentence to an extended term as a persistent offender. In State v. Dixon, 346 N.J. Super. 126, 140 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), we held that "the prerequisites to an [extended term] under N.J.S.A. 2C:44-3a are related to the issue of 'recidivism' and may be found by the judge without presentation to the jury." We have repeatedly reaffirmed this holding, most recently in State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005). Accordingly, we affirm the imposition of the discretionary extended term.

However, the court's imposition of a sentence in excess of the presumptive extended-term sentence for a third-degree offense brings into play our Supreme Court's recent decision in Natale II, which abolished presumptive terms under New Jersey's sentencing scheme. 184 N.J. at 466. Therefore, under Natale II, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale II] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "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." Id. at 495-96.

The trial court sentenced defendant to a term of imprisonment in excess of the presumptive extended term for a third-degree offense. Defendant's case was on direct appeal to this court when Natale II was decided. Therefore, defendant is entitled to a new sentencing hearing in which the presumptive statutory term is not considered.

Because defendant must be resentenced in conformity with Natale II, there is no need to consider the argument that his sentence was excessive.

Accordingly, we affirm defendant's conviction and the grant of the State's motion to sentence defendant to an extended term. We vacate defendant's sentence and remand the case to the trial court to resentence defendant in conformity with Natale II.

 
Affirmed.

State v. Dunbar, 108 N.J. 80, 91 (1987).

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A-6261-03T4

December 13, 2005