STATE OF NEW JERSEY v. KEITH JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1266-05T41266-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH JOHNSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 5, 2006 - Decided December 27, 2006

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 01-08-0971.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and 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

After his suppression motion was denied, defendant was tried by a jury and convicted of all six counts of the indictment as follows: (1) third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1); (2) third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5b(3); (3) second-degree possession of a CDS (cocaine) with intent to distribute on or near a public housing facility, N.J.S.A. 2C:35-7.1; (4) third-degree possession of a CDS (heroin), N.J.S.A. 2C:35-10a(1); (5) third-degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5b(3); and (6) second-degree possession of a CDS (heroin) with intent to distribute on or near a public housing facility, N.J.S.A. 2C:35-7.1. Judge Mulvihill merged count one with count two and count four with count five. He sentenced defendant to concurrent terms of imprisonment on the remaining counts of seven years on counts three and six and four years on counts two and five.

Defendant presents the following arguments on appeal:

POINT I

THERE WAS INSUFFICIENT EVIDENCE FROM WHICH THE JURY COULD CONCLUDE THAT DEFENDANT POSSESSED THE DRUGS FOUND BY THE POLICE.

POINT II

THERE WAS INSUFFICIENT EVIDENCE FROM WHICH THE JURY COULD CONCLUDE THAT DEFENDANT HAD AN INTENT TO DISTRIBUTE THE DRUGS FOUND BY THE POLICE.

POINT III

THE STATE FAILED TO SUBMIT SUFFICIENT PROOF OF "PUBLIC HOUSING" TO SUSTAIN THE CONVICTIONS UNDER COUNTS 3 AND 6.

POINT IV

THE TRIAL COURT'S JURY CHARGES REGARDING COUNTS 3 AND 6 WERE INSUFFICIENT (Plain Error).

POINT V

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Plain Error).

POINT VI

THE TRIAL JUDGE VIOLATED DEFENDANT'S STATE AND FEDERAL DUE PROCESS RIGHTS BY IMPROPERLY AND EXCESSIVELY QUESTIONING WITNESSES DURING TRIAL (Plain Error).

POINT VII

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY THE POLICE.

POINT VIII

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

As part of his argument under Point VIII pertaining to sentencing, defendant contends that count two should have merged with count three and count five should have merged with count six. The State concedes the point, and we agree. See State v. Gregory, 336 N.J. Super. 601, 608 (App. Div. 2001). We therefore remand for entry of an amended judgment of conviction to reflect those mergers. We reject defendant's remaining arguments and in all other respects affirm.

On the morning of July 12, 2001, in response to complaints of local residents of drug activity, the New Brunswick police established a surveillance of a parking lot near Class Place in Robeson Village, a public housing apartment complex. Detective Sam Hillyer positioned himself in the basement of an apartment and viewed the parking lot area from a window. It was clear daylight, there were no obstructions to his view, and the events Hillyer described took place within five to twenty feet of his location. Some conversations he observed took place within five feet of the window, and even though the window was closed, he could hear the discussion.

Shortly after noon, Hillyer observed an individual previously unknown to him, who was later determined to be defendant, arrive on a bicycle at Class Place. Defendant left the bicycle on a patch of grass and walked to the rear of a parked older model white Ford Econoline van that was twenty feet from Hillyer's location. Defendant removed a piece of brown paper from the top right door hinge on the back of the van and removed an object from it. Defendant then stuffed the brown paper package back in the hinge and rode his bike out of the area. Using binoculars, Hillyer described the object removed by defendant as a packet of heroin, based upon its packaging and Hillyer's extensive experience in drug cases.

About ten minutes later, defendant returned to the area and removed from the top left hinge of the van a piece of brown paper, from which he removed a plastic baggie, which Hillyer identified through his binoculars as cocaine, based upon the nature of the packaging. Defendant exchanged the cocaine with the driver of a vehicle for currency.

At about 12:30 p.m., a woman approached defendant and asked for "twenty" of "cook up," but defendant informed the woman he had only "forties." Hillyer explained that cook up is a street term referring to cocaine and defendant was selling only $40 bags and had no $20 bags available for sale.

Defendant then left Hillyer's view and returned at about 1:00 p.m. with a sandwich. He was approached by a woman known to Hillyer, based upon information furnished to him by other members of his department, as a drug user. The woman, Deshonda Lunn, was accompanied by three men. Defendant went to the van and removed heroin and cocaine from the respective hinges. He handed the drugs to Lunn in exchange for cash. Lunn gave the drugs to the three men.

At this point, Hillyer radioed to back-up officers that were positioned near by. Hillyer remained in the building and continued to watch the events through the window. Within Hillyer's view, officers arrested defendant. Lunn was also arrested. The three men had left the area before the back-up officers arrived and were not apprehended. Officers removed the brown paper bags from the two hinges. In the right hinge there were six packets of heroin. In the left hinge there were three baggies of cocaine.

At trial, the State called a fingerprint expert, who acknowledged that no identifiable prints were found on the bags of heroin and cocaine.

Defendant testified in his own behalf. He denied any knowledge of the drugs seized from the hinges. He rendered a contrary version of what happened when the police arrested him. He claimed that the police did not immediately go to the hinges but searched the entire area for about twenty minutes, when they received a mysterious phone call, after which they went to the hinges and found the stash. Defendant contended that he had been set up by another young man who was jealous of defendant's relationship with a young woman from the neighborhood. Defendant called several witnesses who supported his version of the events. His stepfather testified that defendant worked in his roofing business on the date of this incident and that he had dropped defendant off in the area during his lunch break. Another witness testified about the animosity between defendant and the young man defendant claimed set him up because of the young man's jealousy of defendant's relationship with the young woman.

Based upon its verdict, the jury obviously believed the State's witnesses and rejected the version of events rendered by defendant and his witnesses.

In Points I and II, defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he possessed the drugs found in the hinges and that he had the intent to distribute them. We first note that because defendant did not move for a new trial based upon insufficiency of evidence, the issue is not properly before us. R. 2:10-1. We nevertheless address the merits.

Possession is defined as knowingly procuring or receiving the thing possessed, or being aware of one's control over the object long enough to be able to terminate control of the object. N.J.S.A. 2C:2-1c. "Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 N.J. 587, 597 (1979). Constructive possession is established if the defendant had the ability to control the object, in fact controlled or intended to control the object for a span of time, and had knowledge of the object's character. Ibid.

Defendant's conduct in going to the stash on multiple occasions, selling objects from it to multiple customers, and discussing its contents with at least one other prospective customer, provide more than ample evidence to establish that he constructively possessed the drugs.

We reject defendant's argument that without expert testimony the State's proofs were deficient regarding intent to distribute. In appropriate cases, the State is permitted to utilize an expert in drug distribution activities to establish this element. See State v. Odom, 116 N.J. 65, 78-80 (1989). Expert testimony, however, is not required. State v. Vasquez, 374 N.J. Super. 252, 264 (App. Div. 2005). Where a State's witness observed apparent drug transactions and observed the defendant going to and from the location where the supply of drugs was found during the same timeframe, no expert is required to allow the jury to draw the inference of the defendant's intent to distribute those drugs. Ibid. That is the case here, and the evidence well supported the jury's finding on the element of intent to distribute.

In Points III and IV, defendant complains that the evidence was insufficient to establish proof of a public housing facility and that the jury instruction regarding the public housing facility element in counts three and six was deficient. We do not agree.

The State presented in evidence a public housing facility map, see N.J.S.A. 2C:35-7.1e, and Hillyer identified on the map the location of Robeson Village as well as another public housing facility within 500 feet of where the crime occurred. Hillyer testified that Robeson Village is a "public housing apartment complex." Defendant stipulated to the authenticity and legitimacy of the public housing facility map. Defendant presented no contradictory evidence. We have no hesitancy in concluding that the State's evidence was sufficient to support the public housing facility element of N.J.S.A. 2C:35-7.1. See State v. Trotman, 366 N.J. Super. 226 (App. Div. 2004).

With respect to the jury charge on this issue, defendant did not object to the instruction, and we are thus guided by the plain error standard, under which we will not find reversible error absent a legal impropriety in the charge prejudicially affecting defendant's substantial rights sufficiently grievous to convince us that of itself the error possessed a clear capacity to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); R. 2:10-2. We find no error in the charge, let alone plain error.

Following the model jury charge, Judge Mulvihill correctly instructed the jury on the public housing facility issue. We reject defendant's argument that the judge erred by failing to instruct the jury that it was required to find that a reasonable person would know that the alleged public housing facility was in fact a public housing facility. Defendant's reliance on State v. Ivory, 124 N.J. 582 (1991), is misplaced. The Court there considered whether a park, owned by a school board and sometimes used for school activities, constituted "school property used for school purposes" within the meaning of N.J.S.A. 2C:35-7. Because the park was not an actual school building but was a more "ambiguous" property not immediately identifiable as one used for school purposes, the Court required a finding, in those situations, that "an objectively reasonable person could know that the school property was used regularly, consistently, and actually for school purposes. Id. at 591-92. See also State v. White, 360 N.J. Super. 406 (App. Div. 2003) (applying the same rationale with respect to a community center).

That is not the case here. There was nothing ambiguous about the description of Robeson Village as a public housing apartment complex. Defendant did not challenge the character of the complex or the description of it by the State's evidence. Based upon the evidence in this case, the judge was not required to charge, and the jury was not required to find, that a reasonable person would recognize Robeson Village as a public housing complex.

The arguments raised in Points V and VI lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We find no impropriety in the comments by the prosecutor in his opening, during cross-examination, or in summation complained of by defendant on appeal. Nor do we find that defendant suffered any prejudice as a result of questions posed to witnesses by the judge. In a trial that spanned several days, the questions by the judge were relatively few. On each occasion, the judge gave both attorneys an opportunity to ask follow-up questions. The subject matter of the questioning was for purposes of clarification, and the questions were posed in a neutral manner. In his final charge, the judge instructed the jury that questioning of witnesses by him should not influence them in their deliberations and should not indicate that the judge held any opinion one way or the other as to the testimony given by those witnesses.

Defendant's suppression motion was properly denied. The removal of the drugs from the hinges was not truly a "search," but a lawful seizure of items under the plain view doctrine. The drugs were located in the outer portion, accessible to any member of the public, of a parked vehicle of unknown ownership. Defendant has never claimed ownership of the vehicle. The police never ascertained the identity of the owner. Defendant had no privacy interest in the hinges of the van and the contents stuffed in them. See State v. Ford, 278 N.J. Super. 351 (App. Div. 1995).

Finally, we address defendant's sentencing arguments. In addition to the merger argument, upon which we have already commented, defendant argues that his sentence is excessive. We disagree. We are satisfied from our review of the record that Judge Mulvihill's findings on aggravating and mitigating factors are supported by competent and credible evidence, that he did not apply incorrectly the sentencing guidelines enunciated in the Criminal Code, that the sentence is not manifestly excessive or unduly punitive, and it does not constitute a mistaken exercise of discretion. 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).

 
We remand for entry of an amended judgment of conviction to reflect the merger of count two with count three and count five with count six. In all other respects the judgment of conviction is affirmed.

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A-1266-05T4

December 27, 2006