STATE OF NEW JERSEY v. GIBBON W. FARQUHARSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5393-04T45393-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GIBBON W. FARQUHARSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 24, 2006 - Decided November 16, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-04-0393-I.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jane E. Hendry, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Gibbon W. Farquharson, was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and b(3) (count two); and third-degree distribution of a CDS within 1,000 feet of school property being used for school purposes, N.J.S.A. 2C:35-7 (count three). The jury acquitted defendant of count four, third-degree resisting arrest, N.J.S.A. 2C:29-2a(1). Prior to sentencing, defendant entered into a plea agreement, by which he pled guilty to charges in three additional indictments, in exchange for a recommendation that he be sentenced to an overall aggregate sentence of eight years imprisonment with a four-year parole disqualifier for the convictions resulting from the jury verdict and the charges in the other three indictments. On April 1, 2005, the judge imposed sentence. With respect to the case that went to trial, Indictment No. 03-04-0393-I, the judge merged count one with count two, and count two with count three, on which he imposed a mandatory extended term sentence, see N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier. In accordance with the plea agreement, the judge also sentenced defendant to concurrent terms of imprisonment on the other indictments. Defendant appealed only with respect to Indictment No. 03-04-0393-I.

On appeal, defendant argues:

POINT ONE

THE DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE OF THE PROSECUTOR'S IMPROPER STATEMENTS IN HIS SUMMATION.

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.

POINT THREE

THERE WAS INSUFFICIENT EVIDENCE UPON WHICH TO CONVICT THE DEFENDANT OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE WITHIN 1000 FEET OF SCHOOL PROPERTY (Not raised below).

POINT FOUR

THE TRIAL COURT'S FAILURE TO ADEQUATELY INSTRUCT THE JURY THAT THE STATE MUST PROVE THAT THE SCHOOL WAS OPERATIONAL ON THE DATE IN QUESTION MANDATES THE REVERSAL OF THE DEFENDANT'S CONVICTION ON COUNT THREE (Not raised below).

We reject these arguments and affirm.

On February 16, 2003, Officer Louis Pacelli and Detective Timothy Tabor observed a transaction in which defendant sold CDS to Mauricio Dillon in Paterson. Pacelli and Tabor apprehended both individuals. Dillon was charged in the indictment with a possessory offense and was admitted into the Pretrial Intervention Program. Dillon testified at defendant's trial.

In apprehending defendant, there was a struggle. We need not describe the details or the differing versions described by defendant and the police. It is sufficient to say that the police contended they used only that force which was necessary to subdue defendant, who was attempting to flee and resisting their efforts to arrest him, and defendant contended he was submissive and the police used excessive force causing him significant injuries.

According to the State, the CDS transaction took place within 1,000 feet of the Paterson Community Christian School, which was used for school purposes.

Defendant first argues that he was deprived of a fair trial because of the prosecutor's misconduct during summation. Defendant testified at trial. Defendant had several prior convictions. The prosecutor elicited evidence of those convictions for the purpose of impeaching defendant's credibility. Because the prior offenses involved CDS infractions, they were "sanitized," and the jury was not informed of the underlying criminal conduct. See State v. Brunson, 132 N.J. 377 (1993).

During summation, the prosecutor referred on several occasions to defendant's prior convictions as a basis for undermining defendant's credibility. The prosecutor also referred to Dillon's lack of prior convictions, by way of contrast to defendant, to support Dillon's credibility. And, in the course of the summation, the prosecutor referred to defendant as a drug dealer. Defendant's motion for a mistrial because of these comments was denied.

We find no error in the judge's ruling. The prosecutor's credibility arguments based upon prior convictions were proper. State v. Sinclair, 57 N.J. 56, 63 (1970). The prosecutor's reference to defendant as a drug dealer was in the context of the prosecutor's description of the evidence in this case, and not a reference to defendant's prior convictions. Further, the prosecutor's characterization of defendant as a drug dealer was in response to an argument, by defense counsel in summation, that defendant was a drug buyer that night, not a drug dealer. We are satisfied from our review of the State's entire summation that the prosecutor did not suggest to the jurors, by calling defendant a drug dealer, that defendant's prior convictions were drug related and that he therefore had a propensity to commit drug offenses.

Defendant's second argument relates to another mistrial motion that was denied. This motion resulted from the prosecutor's questions of defendant on cross-examination as to whether he was contemplating a civil law suit against the police for the injuries allegedly sustained during his arrest. After several questions in that regard, defense counsel objected. The judge sustained the objection. Defense counsel then moved for a mistrial. The judge denied the motion, but gave a comprehensive curative instruction, which was repeated in the final jury instructions. The judge informed the jury that that evidence was stricken and should be disregarded entirely in their deliberations.

We first observe that evidence of a potential civil action may have been admissible as bearing upon defendant's credibility, his interest, and his motive to testify in a particular way. We nevertheless find no mistaken exercise in discretion in the judge's conclusion that the prejudicial effect of such evidence might well outweigh its probative value. See N.J.R.E. 403(a). The probative value of that evidence might also be outweighed by the risk of confusing the issues or misleading the jury. Ibid.

The curative instruction, forcefully given immediately after the stricken testimony, and later repeated in the final charge, effectively eliminated any potential prejudice to defendant. It is presumed that the jury followed the judge's instructions. State v. Castoran, 325 N.J. Super. 280, 287 (App. Div. 1999), certif. denied, 163 N.J. 78 (2000).

Our confidence that defendant was not prejudiced by this testimony is bolstered by the fact that the jury acquitted him of resisting arrest, the charge to which the proffered line of questioning most directly related. The judge appropriately exercised his discretion in denying defendant's mistrial motion.

Finally, we address defendant's third and fourth arguments, dealing with the adequacy of the evidence and jury instruction as to whether the Paterson Community Christian School was "used for school purposes," as required for conviction under N.J.S.A. 2C:35-7. The State introduced into evidence the Paterson school zone map. Pacelli and Tabor both identified the location of the Paterson Community Christian School on the map and identified the location of the CDS transaction as within 1,000 feet of the school property.

On direct examination, Pacelli testified that the Paterson Community Christian School was "an active working school on February 16, 2003." He was not sure, at the time of his testimony, on January 20, 2005, whether it continued to be an active school, although he believed it was still a school. On cross-examination, Pacelli acknowledged that he had never personally seen children in the school in the daytime. However, he based his belief that it was an operating school, at the time of this offense, on its inclusion on the school zone map. When Tabor was asked whether the Paterson Community Christian School was "a working school at that time -- well, in that day, in that year, was that a working school in the City of Paterson," he responded, "Yes. It was working." Tabor's testimony in that regard was not challenged on cross-examination.

Because the State did not introduce into evidence an ordinance or resolution adopting the map, the statutory presumption in N.J.S.A. 2C:35-7 that schools depicted on such a map are used for school purposes was inapplicable. See State v. Thomas, 132 N.J. 247, 257 (1993). For the first time on appeal, defendant raises the argument that the evidence was insufficient to prove beyond a reasonable doubt that the Paterson Community Christian School was used for school purposes on the date of the offense. We first note that because defendant did not move for a new trial on this ground, as mandated by Rule 2:10-1, the argument is not cognizable on appeal. Nevertheless, we will address the argument substantively.

In our view, the issue here is the same as it was in Thomas; therefore, the Court's analysis and holding there is dispositive of the issue here. In Thomas, witnesses for the State testified that the school in question was just that, a school. This was not an "ambiguous" site, such as a park, see State v. Ivory, 124 N.J. 582 (1991), or a community center, see State v. White, 360 N.J. Super. 406 (App. Div. 2003). In such circumstances, the Supreme Court, in Thomas, said:

The issues implicated in Ivory are not present here. As we observed, "In most cases, like that of a school itself, . . . use 'for school purposes' will be self-evident." [Ivory, supra, 124 N.J. at 591.] Unlike Ivory, the evidence produced concerning Madison Avenue School was unambiguous and uncontroverted. The "1000' drug free zone map" offered by the State depicted school property labeled "MA," and Detective Schneider, who had been a member of the Newark Police Department for nine years, testified that that property was the Madison Avenue School. Based on the drug-free zone map and Detective Schneider's uncontradicted testimony that defendant's offense had been committed within 1,000 feet of Madison Avenue School, we concur in the conclusion reached by the Appellate Division majority that "as a matter of common experience, a school is used for school purposes. The inferred fact, use of property for school purposes, reasonably flows from the fact already established, the existence of a school." [State v. Thomas, 256 N.J. Super. 563, 569-70 (App. Div. 1992).]

That school buildings occasionally are converted to other uses or are closed does not alter our determination concerning the sufficiency of the evidence to support the jury's verdict. No evidence presented at trial suggested that the Madison Avenue School had ceased to be operational, nor is the State obligated to disprove every contingency to sustain its burden. It need produce evidence sufficient for a jury to conclude beyond a reasonable doubt only that the Madison Avenue School was used for school purposes. We are satisfied that the State has met that burden.

[Thomas, supra, 132 N.J. at 259-260.]

The evidence presented in the case before us established that defendant's distribution of CDS took place within 1,000 feet of a "school." That fact, combined with the testimony of Pacelli and Tabor, provided sufficient evidence from which the jury could reasonably conclude beyond a reasonable doubt that the school was used for school purposes. In this case, as in Thomas, the defense presented no evidence to suggest that the school was not used for school purposes on the date of the offense.

We also note that before the State rested, out of the presence of the jury, defense counsel advised the prosecutor and the court that he would not agree to a stipulation that the Paterson Community Christian School was used for school purposes, but would hold the State to its proofs. In response, the prosecutor stated he would call the principal of the school to testify to its active use for school purposes on the date of the offense. During the lunch recess, a detective contacted the principal and confirmed his availability and willingness to testify to that effect. When the parties returned from the lunch break, this was further discussed on the record, but still out of the presence of the jury. Defense counsel accepted the representation and stated it would not be necessary for the prosecutor to call the principal.

Of course, those representations and defense counsel's acceptance of them were never made known to the jury and are not part of the evidence upon which the jury based its decision. We mention it only to further fortify the fact that the defendant presented no evidence to suggest that the school was not used for school purposes on the date of the offense. Indeed, the defense did just the opposite, by agreeing there was no dispute that the school was so used. Defense counsel made no arguments to the jury that the State did not meet its burden with respect to that issue.

In addition, defendant argues that the jury instruction regarding the element that the school property was "used for school purposes" was deficient. At trial, defendant did not object to the instructions. We are therefore guided by the plain error standard and will not reverse except upon a showing of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court 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).

In circumstances in which the alleged school property is not an actual school, but an "ambiguous" property, a jury must determine whether an objectively reasonable person could know that the property is "regularly, consistently, and actually 'used for school purposes.'" White, supra, 360 N.J. Super. at 411-12. Under those circumstances, a supplemental charge is included in the model jury charge for N.J.S.A. 2C:35-7, which provides:

In addition to determining whether property is school property, you must determine the purpose for which it is used. You must decide whether the property is regularly, consistently, and actually used for school purposes, and whether the property's appearance would give an objectively reasonable person reason to know that it was used regularly, consistently, and actually for school purposes.

[Id. at 412.]

In White, because the property in question was not a school, but a community center, the omission of that supplemental charge constituted reversible error. Id. at 413. That is not the case here. The property here, like in Thomas, is an actual school. The judge properly instructed the jury that the statute under which defendant was charged included the element that the school property be used for school purposes. The judge specifically defined school property as "any property which is used for school purposes and which is owned by or leased to an elementary school, secondary school, or school board." While instructing the jury on N.J.S.A. 2C:35-7, the judge on three occasions referred to property "used for school purposes." The judge followed the model jury charge, without the supplemental charge quoted above. The judge concluded the charge by instructing the jury that to find defendant guilty they must find that the "State has proven all these elements beyond a reasonable doubt."

We are satisfied that the jury was properly instructed on the law applicable under the circumstances of this case with respect to the State's burden to prove that the school was used for school purposes, and that the evidence was sufficient to support the jury's finding in that regard. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

Affirmed.

 

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A-5393-04T4

November 16, 2006