STATE OF NEW JERSEY v. PHYLLIP SCOTT

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5602-03T45602-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHYLLIP SCOTT,

Defendant-Appellant.

___________________________________________________________

 

Submitted September 27, 2005 - Decided January 20, 2006

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Essex County, Law Division, 03-06-2186-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This appeal is a companion case to State v. Shorter, No. A-5363-03T4, decided this date. Defendant Phyllip Scott was tried with co-defendants Michael Shorter and Danny Mills. The jury found defendant Scott guilty of all counts contained in Indictment No. 03-06-2186. That five-count indictment charged defendant and co-defendants Rajhon Fuller, Danny Mills, Jovon Riddick and Michael Shorter with the following offenses: second degree conspiracy to violate the narcotics law, N.J.S.A. 2C:5-2 (count one); third degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count two); third degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5a(1) and b(3) (count three); third degree possession with intent to distribute heroin while on school property used for school purposes or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second degree possession with intent to distribute heroin, while in or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five). Co-defendants Danny Mills and Michael Shorter were also found guilty.

At defendant Scott's sentencing hearing, the trial judge merged the convictions on counts one through four into count five. The court found that three aggravating factors applied: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-16(6); and the need to deter defendant and others from future violations of the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. Defendant was sentenced to a term of eight years in prison with a four year parole ineligibility.

On this appeal, defendant makes the following assertions of error:

POINT I: DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.

POINT II: DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE THE LOWER COURT VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

We have considered defendant's arguments in light of the record and applicable law and we find them to be without sufficient merit to warrant reversal or remand.

On April 21, 2003, Officers Pablo Gonzalez, Frank Rusignuolo, Eli Garcia and Jason West, four members of the Newark Police Department, were on duty investigating complaints by residents about narcotics being sold at Twelfth Avenue and South Seventh Street. Officers Gonzalez and Rusignuolo were teamed together to perform surveillance; West and Garcia were partnered as the takedown team to make any necessary arrests.

Just prior to 2:00 p.m., the officers observed unknown individuals in front of a candy store within the targeted area. The officers proceeded to an abandoned building directly across from the individuals on South Seventh Street to conduct their surveillance. Gonzalez and Rusignuolo viewed the area without binoculars. Gonzalez approximated that it was about 100 feet from his vantage point to the street corner he was observing. West and Garcia waited in the basement. They were unable to view the street corner.

Gonzalez testified he viewed a car driven by an individual later identified as co-defendant Rajhon Fuller pull up in front of the candy store. Fuller engaged in "a hand-to-hand transaction" with an individual, later identified as defendant Scott. Fuller gave defendant what appeared to Gonzalez to be CDS heroin, in exchange for money. Defendant passed what he received to co-defendant Shorter and co-defendant Mills. Shorter and Mills then separated, each going to a different corner of the intersection. Next, a white male in a white Mazda drove up to Mills and an exchange of drugs for currency took place. Then a black male drove up in a blue Ford and a similar hand-to-hand exchange occurred between that driver and Shorter. Mills and Shorter appeared to give the proceeds from their respective drug sales to a fourth individual, later identified as co-defendant James Riddick.

After making these observations, Gonzalez and Rusignuolo decided to arrest all of the participants in the suspected drug transactions. They left the abandoned building and drove from the rear of the building toward the corner of Twelfth Avenue and South Seventh Street; however, before the officers reached the corner, the two suspected buyers drove off. They were not apprehended and were never identified. The officers did spot the vehicle driven by Fuller who they suspected of having made the initial exchange that supplied CDS to defendant to pass along to Mills and Shorter to sell. As Fuller's vehicle passed him, Gonzalez recognized that the first three letters of its license plate were identical to those in the citizen complaint that originally gave them notice of the suspected drug activities on Twelfth Avenue and South Seventh Street. At that point, Gonzalez and Rusignuolo decided to arrest Fuller and his passenger. Gonzalez called Officers West and Garcia by cell phone and instructed them to apprehend the individuals he had observed on the corner.

Gonzalez and Rusignuolo discretely made a U-turn and followed Fuller's car. Fuller and an unidentified passenger parked in the area of 137 Littleton Avenue, and the officers pulled in behind that vehicle. Through the rear window of the parked vehicle, the officers, while approaching, observed Fuller hand the unidentified passenger what appeared to Gonzalez to be a brick of heroin. A brick is fifty glassine envelopes of heroin. Upon noticing the police officers behind them, the occupants of the car each fled in different directions. Gonzalez and Rusignuolo split up and chased each occupant on foot. Gonzalez called for assistance on the police radio advising that he and his partner were each in foot pursuit and that Officers Garcia and West would need assistance at Twelfth Avenue as well.

Rusignuolo was unable to apprehend the unidentified male he pursued. Fuller ran into his grandmother's home at 137 Littleton Avenue. Officer Gonzalez received consent from the grandmother to enter the premises and retrieve Fuller. Gonzalez arrested Fuller and obtained written consent from the grandmother to search the room into which Fuller had run. He found no incriminating evidence there.

At roughly the same time at Twelfth Avenue and South Seventh Street, Officers West and Garcia made their way toward the suspects on the corner. Officer West placed Mills under arrest and in a search subsequent to arrest, West discovered fifteen glassine envelopes ("decks") of CDS heroin. Garcia arrested Shorter and recovered eight glassine envelopes of CDS heroin.

Backup units arrived at the scene and arrested defendant and co-defendant Riddick. At the completion of the arrests, Officers West and Garcia responded to 137 Littleton Avenue. Once Fuller was taken into custody, all co-defendants and the defendant were taken to police headquarters to be processed. At headquarters a search of defendant produced $69, consisting of two ten-dollar bills, five five-dollar bills and twenty-four one-dollar bills. During a search of co-defendant Riddick, the police found $140, consisting of two twenty-dollar bills, three ten-dollar bills, five five-dollar bills and forty-five one-dollar bills. After defendant and all the co-defendants were processed, Officer West performed a field test which confirmed that the seized envelopes contained heroin.

In addition to the testimony of Officers Gonzalez and West, the State presented Detective Reginald Holloway of the Essex County Sheriff's Department as an expert witness in the field of narcotics trafficking. Detective Holloway testified that glassine envelopes are the most common method of packaging heroin for distribution. He testified that drug dealers commonly work in groups where some individuals sell the drugs and then relay the proceeds to another individual called the bank or banker. The sellers would relay the money obtained to the bank to ensure that if either a seller or the banker was arrested, the police would not recover both the drugs and the money. Subsequent to any arrest, the operation could continue either with the sale of the remaining drugs or the use of the remaining currency to purchase drugs to be re-sold.

Mills testified on his own behalf. He stated that he went to the store at Twelfth Avenue and South Seventh Street to buy groceries for his girlfriend and her children. He maintained that after retrieving the items from the store, he paused to speak with co-defendant Shorter when "out of nowhere, this cop car came flying down the street," pulled over and the police officers jumped out of the car with guns drawn and ordered him and defendant to freeze and raise their hands. According to Mills, the police searched him and defendant and found no contraband on them. They were arrested anyway.

Mills further testified that he and Shorter were driven in a marked police car toward Sixth Street and, while in transit, the officers came across defendant Scott who was doing nothing more than walking along Sixth Street. The officers immediately jumped out of the car and arrested him. The police had no sympathy for defendant's pleas of having a bad leg and ordered him onto the ground, handcuffed him, and put him in the car.

According to Mills, just before the officers could drive off, four or five cop cars arrived at their location. A female officer exited one of the vehicles and ordered another officer to lock up a ten-or eleven-year-old boy who did nothing, but was unfortunate enough to be present on Sixth Street. An argument ensued between defendant and the female sergeant about the possible arrest of an innocent boy. Eventually, Mills recounted, the sergeant was persuaded by defendant's argument and let the boy go.

Investigator Carlos Molina also testified on behalf of the defendants concerning the distance from the third-floor roof of the vacant building to where the alleged drug transactions allegedly took place. Molina stated that the corner the police observed was about 180 feet from the roof instead of Officer Gonzalez's approximation of 100 feet. On a day when the ground was snow covered, Molina used a measure meter to determine the distance. The meter he used was not offered into evidence. In making the measurements, Molina rounded up certain measurements because of the snow.

The jury returned a verdict of guilty on all counts for defendant and all co-defendants.

We review under the same standard as the trial court in determining whether to grant a motion for a judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). The standard of review is governed by R. 3:18-1 which instructs that an acquittal is warranted "if the evidence is insufficient to warrant a conviction." The test is whether "any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). In reviewing a motion for a new trial, the trial court's decision will not "be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

First, defendant contends that there was no credible evidence against him. Defendant asserts that: (1) according to the defense expert, the measurement of the distance from the point where Scott was to the surveillance position was 180 feet rather than 100 feet as Officer Gonzalez testified; (2) the officer's view of defendant was partially obstructed because his back was turned to the surveillance location; (3) the small size of the heroin deck would have made it impossible for the officer to see from that distance; (4) defendant did not have any heroin in his possession when he was arrested; and (5) Officer Gonzalez is a blatant liar. These assertions, other than item (4), were disputed and raised credibility issues firmly within the purview of the jury. Such assertions do not warrant the entry of a judgment of acquittal by the court.

Officer Gonzalez testified that Fuller, the driver of the vehicle, handed defendant what was believed to be CDS heroin. The officer affirmed that he saw Fuller give defendant "objects." Further, Gonzalez stated, that immediately following the Fuller-to-defendant transaction, defendant distributed the heroin to Mills and Shorter. Subsequently, Gonzalez observed Mills and Shorter each make a drug sale. Within minutes of these sales, Officer West and Garcia arrested Mills, Shorter and defendant. The officers conducted a search of Mills and Shorter, which uncovered a total of twenty-three decks of heroin.

The defense expert's measurements were admittedly estimates taken while there was snow present on the ground. Officer Gonzalez specifically identified defendant as the man who received drugs from Fuller and then relayed the drugs to Mills and Shorter to sell for money. There was no evidence that Officer Gonzalez was unable to view defendant. The jury was within its prerogative to accept or reject the defense contentions regarding Officer Gonzalez's lack of credibility.

Next, defendant contends the trial judge erred by sentencing him in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to eight years in prison. That term is greater than the seven-year presumptive term for a second degree offense. Defendant contends it is based on facts that were not found by the jury beyond a reasonable doubt other than a prior conviction. Our Supreme Court recently held that a sentence above the presumptive statutory term, based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee. State v. Natale, 184 N.J. 458, 482 (2005) (Natale II). Accordingly, the Court deleted the presumptive terms from the sentencing process under New Jersey's Code of Criminal Justice. Id. at 487. "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second degree offense, N.J.S.A. 2C:43-6(a)(2). In all other respects, the sentencing process will remain essentially unchanged." Natale II, supra, 184 N.J. at 487.

Here, we reject defendant's argument that his Sixth Amendment rights were violated as his sentence did not exceed the former presumptive term for the offense of which he was convicted. The transcript of the sentencing hearing reflects that the judge stated that an extended term was required and that counts one, two, three and four merged into count five. On count five, second degree possession with intent to distribute within 500 feet of school property, the judge sentenced defendant to eight years with parole ineligibility for four years. In the discussion prior to the judge's statement of sentence, the prosecutor had recommended that defendant be sentenced to prison for ten years with five years of parole ineligibility.

In the judgment of conviction, the first four counts were merged into count five and defendant was sentenced to eight years with a period of parole ineligibility for one-half of the sentence, four years. N.J.S.A. 2C:35-7. Count five was a second degree offense, so the ordinary statutory sentencing range would be between five and ten years and the range for an extended term would be between ten to twenty years. Consequently, instead of receiving a sentence in excess of the presumptive term, defendant was the beneficiary of a sentence that was more lenient than that prescribed for an extended term for the second degree offense. Under such circumstances, Blakely is not contravened nor implicated.

The State, without having filed a cross-appeal, argues that defendant should be sentenced to at least a minimum of ten years because the trial judge failed to impose the extended term in accordance with his intention stated on the record. Though we are mindful of the Court's observation that a "defendant does not have a right to a windfall sentence under an unconstitutional scheme," Natale II, supra, 184 N.J. at 492, the leniency of defendant's sentence appears to have been due to a simple, detectable mistake in sentencing, not due to implementation of the newly announced constitutional rule. On the present record, however, we decline to increase the sentence.

The State did not seek to amend the judgment and did not file the permissible cross-appeal. See, e.g., State v. Horton, 331 N.J. Super. 92, 101 (App. Div. 2000) ("Even assuming that the sentence is 'illegal,' the State had an obligation to raise the issue in a timely fashion."); State v. Mays, 321 N.J. Super. 619, 634 (App. Div. 1999), certif. denied, 162 N.J. 132 (1999) (declining to remand in light of the State's failure to cross-appeal). But see, State v. Baker, 270 N.J. Super. 55, 76 (App. Div. 1994) (recognizing, where the State had cross-appealed that a court has authority to correct an illegal sentence at any time).

 
In our view, justice requires that defendant's sentence remain eight years. His appeal was taken in apparent good faith, in light of the uncertainty about the implications of the Blakely decision on the sentence that was imposed. Because the State neither moved for reconsideration of the sentence nor filed a cross-appeal, we decline to impose a greater sentence than was ordered by the trial judge.

Affirmed.

(continued)

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A-5602-03T4

January 20, 2006