STATE OF NEW JERSEY v. COLUMBUS J. MANNING, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4471-03T44471-03T4

A-5494-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODERICK C. GOODJOHN, II,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COLUMBUS J. MANNING, JR.,

Defendant-Appellant.

Submitted September 25, 2006 - Decided October 19, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

02-11-1506.

Yvonne Smith Segars, Public Defender, attorney for appellants (Shepard Kays, Designated Counsel, on the brief in

A-4771-03T4; Alison Perrone, Designated Counsel, on the brief in A-5494-03T4).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief in A-4771-03T4; Missy Piccioni, Assistant Prosecutor, of counsel and on the brief in A-5494-03T4).

PER CURIAM

These two appeals arise from a Burlington County indictment charging defendants, Roderick C. Goodjohn, II, and Columbus J. Manning, Jr., with second-degree distribution of cocaine within 500 feet of certain public property, N.J.S.A. 2C:35-7.1 (Count One); second-degree possession of cocaine with intent to distribute on or within 500 feet of certain public property, N.J.S.A. 2C:35-7.1 (Count Two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Four); third-degree distribution of a cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Five); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Six); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Seven); and third-degree conspiracy, N.J.S.A. 2C:5-2 (Count Eight).

The State voluntarily dismissed the first two counts. Following a four day trial in which Manning absented himself, a jury convicted both defendants of the remaining six counts. The court merged the Counts Four, Five, Six, and Seven convictions with the Count Three convictions. Goodjohn received a term of four years with three years of parole ineligibility on the Count Three conviction and a concurrent four-year term on the Count Eight conviction. The judge found Manning eligible for a mandatory extended sentence pursuant to N.J.S.A. 2C:43-6f, and imposed eight years of incarceration with four years of parole ineligibility on the Count Three conviction. A concurrent four- year term was imposed on his Count Eight conviction. Defendants appeal. We remand for resentencing of the eight-year extended term imposed on Manning's Count Three conviction. We affirm both judgments of convictions in all other respects.

We need not discuss the facts in detail. On May 30, 2002, Detective Noel Harrison Dillard of the Burlington County Prosecutor's Office Narcotics Task Force was working undercover, assigned to purchase narcotics from street-level narcotics dealers in Burlington City. Dillard, along with another detective in training and a confidential informant, cruised the Yorkshire section of Burlington City looking for a street-level dealer that would sell them narcotics. As Dillard was proceeding down St. Mary Avenue, at approximately 5:35 p.m., during daylight hours, he observed two men standing at the corner of St. Mary Avenue and Jones Avenue. The two men were later identified at trial as defendants. Goodjohn waved Dillard down. Dillard parked and both he and the confidential informant exited the vehicle. Goodjohn approached Dillard and the confidential informant. Dillard told Goodjohn, as they stood "face-to-face," that he wanted to purchase forty dollars worth of crack cocaine. Goodjohn then walked toward the corner where Manning was located. Manning, in turn, walked toward Goodjohn; they met and carried on a conversation. Manning then approached Dillard and retrieved four small plastic baggies of crack cocaine from a larger plastic bag he was holding and handed them to Dillard. Dillard told Manning that he wanted five baggies for forty dollars, not four. Manning complied and gave Dillard an additional baggie containing crack cocaine. Dillard handed Manning forty dollars. During the transaction, Dillard was "face-to-face" with Manning.

Dillard and the confidential informant returned to the car and drove away. As he drove away, Dillard relayed a full description of defendants and their location to the back-up units. Within one minute of receiving the description, Joseph Caruso, the identification officer, arrived at the intersection. Based on the description given by Dillard, Caruso observed both defendants for approximately twenty seconds from a distance of ten to fifteen feet as he traveled past them. He then left the area to obtain photographs of the suspects. After retrieving photographs of each, he met Dillard who was located with the back-up units where the cocaine had been secured. Dillard positively identified both photographs. Goodjohn was arrested on July 9, 2002, and Manning sometime thereafter. Testing revealed that Dillard purchased .53 grams of cocaine.

Goodjohn, who testified on his own behalf, stated that he was in New Haven, Connecticut, the morning of May 30, 2002, where he remained until June 1. He traveled to New Haven to confront his brother-in-law who had an altercation with defendant's sister the previous night. When his brother-in-law refused to see him, he went to the home of a friend, Timothy Hutchinson, where he stayed until he returned to New Jersey. At the time, Goodjohn's jaw was wired shut. Although Goodjohn acknowledged knowing Manning, he denied being friends with him or hanging out with him. Hutchinson corroborated Goodjohn's testimony. Hutchinson remembered the dates because it was Memorial Day weekend, and he and Goodjohn usually attended an annual motorbike event on Memorial Day weekend, although they did not do so that year. He also confirmed that Goodjohn's jaw was wired shut at the time of the visit.

Manning raises the following points on appeal:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON IDENTIFICATION. (Not Raised Below).

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY.

POINT III

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE v. NATALE, 184 N.J. 458 (2005). (Not Raised Below).

Goodjohn raises the following points on appeal:

POINT I

THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

POINT II

THE SENTENCE GIVEN DEFENDANT WAS EXCESSIVE.

Asserting that mistaken identity was "clearly the defense strategy," Manning contends, for the first time on appeal, that his due process rights were violated by the trial judge's failure to instruct the jury on identification. Because an identification charge was not requested, we must review Manning's contention in accordance with the plain error standard. We conclude that the failure to give an identification instruction was not "clearly capable of producing an unjust result." R. 2:10-2.

When requested, a trial judge should instruct a jury that it is the State's burden to prove beyond a reasonable doubt that the defendant committed the crime charged, that the defendant has no duty to show that he was elsewhere when the crime was committed, that the State's case depends upon the reliability of the identification evidence presented, and that it is appropriate to consider the capacity or ability of the witness to make observations and his opportunity under all the attendant circumstances for seeing that which he says he saw. State v. Green, 86 N.J. 281, 293-94 (1981). Where there has been a pretrial identification, the judge should instruct the jury that it is to determine whether any in-court identification results from the observations or perceptions of the defendant during the commission of the crime rather than being the product of the pretrial identification. Id. at 294. The judge should mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case. Id. at 287-88; see also State v. Concepcion, 111 N.J. 373, 379 (1988); Model Jury Charge (Criminal), "Identification: Out-of-Court" (1999).

Cases addressing the omission of an identification charge demonstrate that the invalidation of an otherwise valid conviction depends on the circumstances of the case and is highly fact-sensitive. See Green, supra, 86 N.J. at 291-92; State v. Malloy, 324 N.J. Super. 525, 535 (1999); State v. Walker, 322 N.J. Super. 535, 545-50 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. McNeil, 303 N.J. Super. 266, 272 (App. Div. 1997); State v. Edmonds, 293 N.J. Super. 113, 118 (App. Div. 1996), certif. denied, 148 N.J. 459 (1997); State v. Salaam, 225 N.J. Super. 66, 69-72 (App. Div.), certif. denied, 111 N.J. 609 (1988); State v. Frey, 194 N.J. Super. 326, 329-30 (App. Div. 1984).

The identification here was by two trained and experienced officers who viewed defendants' criminal activity. Indeed, this was Dillard's 188th undercover drug transaction. Dillard participated face-to-face with both defendants during daylight hours. Beginning with his initial observations of defendants until the transaction was completed, Dillard viewed defendants for a period of two to three minutes. As an undercover police officer purchasing drugs, he possessed a heightened awareness of the need for a proper identification. He also had a strong incentive to be observant. See State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997). Caruso, as the identification officer, had the same concerns.

The judge thoroughly instructed the jury on credibility and burden of proof. Manning's counsel forcibly argued both officers' lack of credibility and the circumstances surrounding their observations of defendants. Moreover, Goodjohn presented a similar argument, relying upon his alibi and the purported status of his jaw. We do not know the reason for counsels' failure to submit a timely request to charge or interpose an appropriate objection to the instructions as given. However, it is certainly arguable that this omission constituted a tactical or strategic decision on the part of Manning's lawyer. In any event, it would offend the interests of justice to require a rerun of the trial under these circumstances. See State v. Macon, 57 N.J. 325, 333 (1971).

We next address Goodjohn's assertion that, when consideration is given to his testimony and to Hutchinson's alibi testimony, the proofs established by the State's witnesses were insufficient to support the guilty verdict. Goodjohn's failure to timely move for a new trial ordinarily precludes us from determining whether the verdict was against the weight of the evidence. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Where, however, such a motion is made, the trial judge is obliged to grant the motion "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Goodjohn's challenge to the sufficiency of the evidence is essentially directed at the credibility of the eyewitness who described the conduct and made an in-court identification. Matters of credibility are within the exclusive dominion of the jury. State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); see also State v. Locurto, 157 N.J. 463, 474 (1999). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Goodjohn's contention to the contrary is without merit.

Finally, we consider defendants' contentions regarding the sentences imposed. Manning concedes that he was extended term eligible. He points out that his conviction of a school zone offense carries a mandatory period of parole ineligibility. The judge found aggravating factors N.J.S.A. 2C:44-1a(3), (6), (9), and (11), and mitigating factors N.J.S.A. 2C:44-1b(1), (2), and (3). Manning posits that the judge's inclusion of aggravating factor (11), "imposition of a fine . . . without also imposing a term of imprisonment," was inappropriate because parole ineligibility made incarceration mandatory. He also asserts that the extended eight-year term, which is one year above the pre-Natale II presumptive term, is violative of State v. Natale (Natale II), 184 N.J. 458 (2005). The State concedes that a remand for resentencing is required under Natale II. See also State v. Thomas, 188 N.J. 137 (2006). We agree that aggravating factor (11) was inappropriate given Manning's exposure to mandatory incarceration. Because Manning's direct appeal was pending at the time Natale II was decided and his extended term sentence is above the pre-Natale II presumptive seven-year term, he is entitled to a remand for resentencing to permit consideration of whether the judge would have imposed a lesser sentence in the absence of a presumptive term. Natale II, supra, 184 N.J. at 495-96. The judge should resentence Manning without consideration of aggravating factor (11).

Goodjohn maintains that the four-year sentence imposed was excessive. The judge found mitigating factors N.J.S.A. 2C:44-1b (1) and (2), and aggravating factor N.J.S.A. 2C:44-1a(9). He considered the State's argument regarding the seriousness of the offense and imposed the mid-range four-year term. Defendant asserts that the judge should have imposed a minimum three-year term. When reviewing a sentence, the appellate court should be careful not to substitute its own judgment for that of the sentencing court. State v. Roth, 95 N.J. 334, 365 (1984). A sentence should not "be based upon a quantitative analysis" of the factors because they "are not interchangeable on a one-to-one basis." Id. at 368. Moreover, the "proper weight to be given to each is a function of its gravity in relation to the severity of the offense." Ibid.

We are convinced, after our review of Goodjohn's contention and supporting argument, that the four-year term is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65. Accordingly, we affirm Goodjohn's judgment of conviction in all respects.

The judgment of convictions of both defendants is affirmed. Manning's conviction is remanded for resentencing in accordance with this opinion.

 

 

Back-to-back appeals, consolidated for purposes of this opinion.

(continued)

(continued)

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A-4471-03T4