STATE OF NEW JERSEY v. AKEEM FLEMING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4762-03T44762-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AKEEM FLEMING,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 19, 2005 - Decided February 6, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment Numbers 03-01-0153 and 02-10-2324;

Accusation Number 03-09-1732.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jean B. Bennett, Designated

Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Nina D. Bonner, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Akeem Fleming appeals from three judgments of conviction entered on November 7, 2003. On Indictment 03-01-0153, the judgment was entered after a jury trial in which defendant was found guilty of second degree possession of a controlled dangerous substance (CDS) with intent to distribute near public housing, N.J.S.A. 2C:35-7.1; third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; third degree possession with intent to distribute, N.J.S.A. 2C: 35-5a(1)(b)(3); and third degree possession of CDS, N.J.S.A. 2C: 35-10(a)(1). After the appropriate mergers, defendant was sentenced to an aggregate term of seven years, subject to three years parole ineligibility.

On Indictment 02-10-2324, judgment was entered after the defendant pled guilty to third degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). On this indictment, defendant was sentenced to a term of four years, subject to one year parole ineligibility, to be served concurrently with the sentence imposed on Accusation-03-09-1732.

On Accusation 03-09-1732, the judgment was entered after defendant pled guilty to second degree possession of CDS with intent to distribute near public housing, N.J.S.A. 2C:35-7.1, and third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7. On that accusation, he was sentenced to an aggregate term of seven years, subject to three years parole ineligibility, to be served consecutive to the sentence on Indictment 03-01-0153 and concurrent to the sentence on Indictment 02-10-2324.

All of the charges against defendant arose out of a police undercover operation in which drugs were purchased from defendant on separate occasions in June, July and August 2002. Although the charges on which defendant was tried occurred on August 13, 2002, he was not arrested until October 2002.

The evidence at trial demonstrated that on August 13, 2002, Detectives Scott Sybel and Jeff Robinson set up surveillance in the area of First Street and Central Avenue in Hackensack. The surveillance was prompted by numerous complaints "from residents and block watch members" about narcotics activity in the area. At approximately 8:40 p.m., Sybel stationed himself about "fifty to seventy-five feet" away from a mini-mart located at First and Central in order to conduct visual surveillance. Sybel testified that it was not raining, was still daylight and nothing obstructed his view of the area.

Sybel had briefed Robinson on his assignment to make a "street level narcotics buy." Robinson was riding a bicycle and wearing "old work clothes, old beat-up boots, [and a] T-shirt with holes in it." He arrived at the mini-mart and hung around in front of the store for "[a]bout five minutes before [defendant] arrived." When defendant arrived on his bicycle and was standing in front of the mini-mart, Robinson asked him, "Oh, are you working?" Defendant replied, "What you want? What are you looking for?" Robinson said "rock," the street name for crack cocaine, and asked for "two" ($20 worth). Robinson was standing one or two feet away from defendant and "was visually looking at his appearance, his face, what he looked like, what his hairstyle was" so that he would "be able to identify this individual if [he] had to at a later date."

Defendant told Robinson to wait and then went to a driveway alongside the convenience store. He emerged two minutes later and handed Robinson two small bags of suspected "rock" in exchange for $20. After obtaining the bag, Robinson left on his bicycle. At trial, Robinson confirmed that the bags marked into evidence were the same bags he had purchased from defendant that day. When Robinson returned to headquarters, he reviewed a series of photographs and picked defendant as the person who sold the "rock" to him. The "rock" tested positive for cocaine. The purchase occurred within 1,000 feet of the school and 500 feet of a public housing facility.

Defendant testified that he had no memory of August 13, 2002, and had never seen Robinson before or sold drugs to him. He testified further that he was not arrested for the alleged August 13 offense until October 2002.

The offenses charged in Indictment 02-10-2324 and Accusation 03-09-1732 arose out of similar circumstances on June 20, 2002 and July 20, 2002. After the jury found defendant guilty on Indictment 03-01-0153, he entered guilty pleas on the remaining indictment and accusation. In this appeal, he argues:

POINT I

DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON DUE PROCESS AND STATUTORY ENTRAPMENT SHOULD HAVE BEEN GRANTED.

POINT II

THE DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT III

THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED AND A CONSECUTIVE SENTENCE WAS IMPROPER.

Defendant first argues that "the indictment against him must be dismissed because the undercover officer entrapped him and his arrest violated his due process rights under the New Jersey Constitution." Defendant maintains that the State engaged in due process entrapment because (1) "the government was primarily responsible for planning and creating the crime and primarily directed and controlled the commission of the crime" by sending an undercover officer into a neighborhood to buy drugs; (2) the government's conduct was unreasonable because the officer "engaged [defendant] in friendly conversation" in order to purchase drugs; and (3) the government had no legitimate purpose in soliciting defendant when "defendant had not been named by a confidential informer as a drug dealer."

"The essence of due process entrapment inheres in the egregious or blatant wrongfulness of the government conduct." State v. Johnson, 127 N.J. 458, 470 (1992). "'A defendant's conviction will be disallowed when the government's overall involvement in his crime was so outrageous as to violate due process.'" Ibid. (quoting Kevin H. Marino, Outrageous Conduct: The Third Circuit's Treatment of the Due Process Defense, 19 Seton Hall L. Rev. 606, 613 (1989)). "Due process entrapment requires a comprehensive approach encompassing careful scrutiny of the nature of government conduct in light of all the surrounding circumstances 'and in the context of proper law enforcement objectives.'" Johnson, supra, 127 N.J. at 474 (quoting People v. Isaacson, 378 N.E.2d 78, 83 (N.Y. 1978)).

In determining whether illegal entrapment has incurred, the court should determine

(1) whether the government or the defendant was primarily responsible for creating and planning the crime, (2) whether the government or the defendant primarily controlled and directed the commission of the crime, (3) whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable, and (4) whether the government had a legitimate law enforcement purpose in bringing about the crime.

[Johnson, supra, 127 N.J. at 474.]

The court should focus on "the justification for the police in targeting and investigating the defendant as a criminal suspect; and the nature and extent of the government's actual involvement in bringing about the crime" as the principal elements to determine whether due process entrapment occurred. Id. at 474-75.

The inquiry for the first prong of the Johnson test is "[w]hether the record reveals simply a desire to obtain a conviction of any person, without any purpose to prevent further crime or to protect the populace." Id. at 475. This inquiry is to determine "whether the police had adequate justification to target and investigate defendants as criminal suspects." Ibid. Here, the police set up surveillance at First Street and Central Avenue because they had received frequent complaints regarding drug activity in the area. The police, therefore, had a reasonable suspicion with respect to the area and defendant's responses to Robinson's initial inquiry provided the probable cause to suspect him of drug dealing.

The second prong of the Johnson test is whether the government or defendant primarily controlled and directed the commission of the crime. Id. at 474. While Robinson initiated contact with defendant by asking a facially-neutral question, "Are you working?" defendant was entirely in control of his response and subsequent conduct.

The third prong in evaluating an entrapment defense is whether the government's efforts in bringing about the crime suggest that it overstepped its bounds. Id. at 478. Here, Robinson was dressed in undercover clothing and initiated conversation with defendant, asking, "Are you working?" Although this facially-neutral question may be an invitation to sell drugs in street language, simply asking a suspected dealer to sell drugs cannot be considered "heavy handed pressure." Ibid.

The police did not appeal to humanitarian instincts involving sympathy, past friendship, or the like to persuade defendant[ ] to go along with the plan. No tactics, objectively considered, were calculated to overwhelm. The police conduct was "an invitation, not a seduction."

[Id. at 479 (citation omitted).]

With respect to the fourth prong, we have no doubt that the government's purpose in prosecuting drug crimes is a legitimate law enforcement purpose warranting such undercover operations. Johnson, supra, 127 N.J. at 474. We find no merit in defendant's due process entrapment argument.

Defendant further argues that in addition to due process entrapment, the doctrine of statutory entrapment applies. N.J.S.A. 2C:2-12 provides that

[a] public enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he introduces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:

(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

Statutory entrapment incorporates both subjective and objective elements. State v. Florez, 134 N.J. 570, 583 (1994). "Subjective entrapment occurs when the police implant a criminal plan into the mind of an innocent person who would not ordinarily have committed the offense." Ibid. "Objective entrapment takes place when the police conduct causes an average citizen to commit a crime or when the conduct is so egregious as to 'impugn the integrity of the court that permits a conviction.'" Ibid. (quoting State v. Fogarty, 128 N.J. 59, 65 (1992)). Whether statutory entrapment has occurred is a jury question if enough evidence is presented to warrant its consideration, and defendant must prove this affirmative defense by a preponderance of the evidence. Florez, supra, 134 N.J. at 583. Statutory entrapment requires a defendant to establish that he had no predisposition to commit the crime. State v. Grubb, 319 N.J. Super. 407, 414 (App. Div.), certif. denied, 161 N.J. 333 (1999). "'[T]he defense will fail if the defendant was ready and willing to commit the crime.'" Ibid. (quoting Johnson, supra, 127 N.J. at 464).

Initially, we note that defendant did not raise the issue of statutory entrapment at trial. Rather, he limited his argument in the trial court on due process entrapment. Nevertheless, he argues statutory entrapment on appeal. The plain error standard, therefore, applies.

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

Defendant's statutory entrapment argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), except to note that the record clearly indicates that defendant was "ready and willing" to commit the crime.

Defendant next argues that his motion for acquittal should have been granted because "the State failed to meet its burden on each and every charge." We have carefully reviewed the record and considered defendant's arguments in light of the applicable law. We are satisfied that there is insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2).

With respect to defendant's sentencing arguments, we are satisfied that the consecutive sentences were correctly imposed. The criteria for determining consecutive sentencing is set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The Yarbough criteria include: whether "the crimes and their objectives were predominantly independent of each other;" whether "the crimes involved separate acts of violence or threats of violence;" whether "the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;" whether "any of the crimes involved multiple victims;" and "whether the convictions for which the sentences are to be imposed are numerous." Id. at 643-44.

At sentencing, the trial judge stated:

I find these were separate events, separate dates, separate locations, separate people involved in these sales from the two indictments that is, 0153, those events occurred on August 13th. That was the trial. The other, 2324 was on June 20, 2002. And 1732 was on July 20, 2003. In that regard they're different places, different locations, different events.

The trial judge considered the Yarbough factors and properly applied them.

Similarly, we find no merit in defendant's argument that the trial court "did not properly identify and balance" the aggravating and mitigating factors. He maintains that the trial judge failed to provide his reasoning for the aggravating factors and failed to consider certain mitigating factors. In our review of the record, however, we are satisfied that the trial judge adequately considered, weighed and applied the relevant factors in sentencing defendant. State v. Roth, 95 N.J. 334, 365-66 (1984).

 
Affirmed.

(continued)

(continued)

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A-4762-03T4

February 6, 2006