STATE OF NEW JERSEY v. RENEE LOVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1655-04T41655-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENEE LOVE,

Defendant-Appellant.

______________________________________________________________

 

Submitted May 23, 2006 - Decided August 8, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-03-1039-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Renee Love, appeals from her conviction and sentence for third degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 (count one); third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a (count three); and third degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four). Defendant and co-defendant, Tyshone Overstreet, were charged and tried together. The jury found defendant guilty on all counts. Counts two and three were merged into count four. The court sentenced defendant on count four to five years in prison with a three-year period of parole ineligibility and on count one to a concurrent five-year term of incarceration.

On this appeal, defendant claims a discovery violation, insufficient evidence to support the conspiracy conviction and an improper sentence. More specifically, defendant makes the following assertions of error:

POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE STATE FAILED TO PROVIDE REQUESTED DISCOVERY PURSUANT TO R. 3:13(g).

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR AN ACQUITTAL AT THE CLOSE OF THE STATE'S CASE. THE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED PURSUANT TO R. 3:18-2. (RAISED BELOW).

POINT III: THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL BECAUSE IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY VERDICT.

After careful review of defendant's arguments in light of the facts and applicable law, we affirm the convictions but remand for consideration of the sentence in accordance with State v. Natale, 184 N.J. 458 (2005).

At approximately 2:00 a.m., on November 30, 2002, officers from the Newark Police Department set up surveillance at a location on West Kinney Street, which they describe as a high crime area with frequent drug sales. The officers observed defendant, standing on the front porch across the street from their location. This area was within 1000 feet of a school.

Officer Patrick Cantalupo, who was the surveillance person, testified he observed a male approach defendant and engage her in a brief conversation after which the male handed her currency in exchange for an object. Believing he had witnessed a narcotics transaction, Cantalupo called his "take-down team," Officers Jose Figueroa and Bobby Bullock, to move in for further investigation. As Figueroa and Bullock were crossing the street, another black male, later identified as co-defendant, Overstreet, approached defendant. Defendant engaged in a brief conversation with Overstreet and then Overstreet handed defendant cash in exchange for an object. Suspecting that an illegal drug transaction had just taken place, the officers moved in to arrest defendant and Overstreet. Figueroa testified that as they approached defendant, she reached into her jacket pocket and tossed a bag onto the porch.

Bullock testified he did not know which of the two suspects dropped the bag. The suspects were standing close together, seemed surprised and one of them dropped the bag. The officers recovered the bag and found thirty vials of cocaine in it. As a result of a search incident to arrest, the officers recovered $414 from Overstreet and $150 from defendant.

At trial, the State called Detective Reginald Holloway of the Essex County Prosecutor's Office as an expert in certain aspects of drug trafficking. Holloway was presented with a hypothetical that tracked the facts adduced in this case and on the basis of that hypothetical scenario, Holloway opined that the officers in the hypothetical had witnessed an illegal drug transaction. Holloway testified that it was his opinion that thirty vials of cocaine and the method in which the vials were packaged suggested that the cocaine was not for personal use, but rather it was for distribution.

Holloway also opined that the second transaction described in the hypothetical, which was interrupted, was a "re-upping," where the two individuals either were working together or the two were working separately. If they were working together, the person in the hypothetical, who appeared to correspond to Overstreet, was aiding in the ongoing distribution of narcotics by the other person. If they were working separately, the supplier would have been providing product which the other person, corresponding to defendant, would purchase in order to keep her personal narcotics distribution scheme flowing.

First, defendant argues that the State failed to provide him with his requested discovery. Prior to trial, defense counsel asked the prosecutor how the police officers communicated with each other and with the police dispatcher on November 30, 2002. The prosecutor informed defense counsel that the officers used their personal cellular telephones and that defense counsel would need to apply for a warrant to obtain the cellular telephone billing records for that evening. During Officer Cantalupo's testimony, defense counsel objected and claimed that he was never provided with the cellular telephone records in discovery despite requesting them prior to trial. The prosecutor informed the court that defense counsel could have obtained the records but failed to take the necessary steps. Moreover, defense counsel admitted that he looked into obtaining the records and was informed that it was not a warrant but a subpoena that was needed.

If the prosecuting attorney discovers additional material or witnesses previously requested or ordered subject to discovery, defense counsel must promptly be notified. R. 3:13-3(g). On the other hand, the State was under no obligation to provide personal telephone records of the officers as part of pretrial discovery. The State informed counsel how he could obtain those records. Defense counsel has offered no explanation as to why he did not do whatever was necessary to obtain the records or at the least, bring it to the trial court's attention prior to the start of trial. We perceive no violation of R. 3:13-3(g) by the State.

Next, defendant asserts that the court erred in denying defendant's motion for judgment of acquittal. Specifically, defendant argues that the State failed to prove that she conspired with Overstreet since there was no direct or circumstantial proof of any agreement between the parties to distribute cocaine. Hence, defendant argues an essential element of the alleged conspiracy was lacking.

Evidence is sufficient to withstand a motion for judgment of acquittal when the entirety of the State's direct and circumstantial evidence, viewed most favorably and given the benefit of all reasonable inferences, permits a reasonable jury to find each element of the crime beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 459 (1967). The issue is not whether the trial court or this court believes the evidence but whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown, supra, 80 N.J. at 592; see State v. Moffa, 42 N.J. 258, 263 (1964) (trial court and this court apply the same standard).

The gravamen of conspiracy is the agreement to commit a specific crime. That agreement must have a specific crime as its goal. N.J.S.A. 2C:5-2 defines conspiracy as follows:

a. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

The conspiratorial agreement may be proven by circumstantial evidence. State v. Carbone, 10 N.J. 329, 341 (1952). Moreover, in evaluating that evidence, "[j]urors are not expected to ignore what is perfectly obvious, but, rather, to take full advantage of their collective experience and common sense." United States v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (internal quotations and citations omitted).

We conclude that the testimony of the officers, the expert witness and the amount of the recovered drugs, if believed, was adequate to permit reasonable jurors to find the essential agreement beyond a reasonable doubt. In summary, defendant was observed by the officers having a brief conversation with Overstreet, after which she handed Overstreet cash and he handed her a bag of drugs. Additionally, the State demonstrated that the amount and packaging of the drugs provided a reasonable inference that the drugs were not for personal use, but rather for resale and that defendant was either re-upping as part of a collaborative scheme with Overstreet or in furtherance of her own distributive scheme. We are satisfied the court properly denied defendant's motion for judgment of acquittal.

Lastly, defendant contends that her sentence requires a remand in accordance with Natale, supra, 184 N.J. at 487, since her five-year sentence exceeded the then-presumptive four-year term. The State counters by arguing that the sentence does not violate Natale since the court based its sentence on defendant's prior criminal record. See State v. Abdullah, 184 N.J. 497, 506 n.2, (noting "that had the trial court specifically found that aggravating factors (3), (6), and (9) related to defendant's prior convictions as the basis for increasing defendant's sentence above the presumptive, we might have come to a different result").

Here, the court found no mitigating factors; however, it found the following aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter, N.J.S.A. 2C:44-1a(9). Without commenting on the viability of the footnote in Abdullah, a Natale remand is, nonetheless, required since the judge did not specifically relate aggravating factor nine, the need to deter defendant and others from unlawful conduct, to defendant's prior record. As such, we are unable to discern from the record whether the 'deterrence' factor was based entirely on defendant's criminal record or whether the judge took into account any additional considerations.

Remanded only for consideration of the sentence consistent with this opinion. In all other respects, the convictions are affirmed.

 

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A-1655-04T4

August 8, 2006