STATE OF NEW JERSEY IN THE INTEREST OF A.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6312-04T46312-04T4

STATE OF NEW JERSEY IN THE

INTEREST OF A.B.

Juvenile-Appellant.

_________________________________

 

Submitted January 23, 2006 - Decided February 21, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

FJ-07-3235-05.

Yvonne Smith Segars, Public Defender, attorney for

appellant, A.B. (Abby P. Schwartz, Assistant Deputy

Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for

State of New Jersey (Joan E. Love, Assistant

Prosecutor, on the brief).

PER CURIAM

Following a bench trial, juvenile A.B. was adjudicated delinquent of acts that, if committed by an adult, would constitute possession of cocaine, N.J.S.A. 2C:35-10; possession with intent to distribute cocaine, N.J.S.A. 2C:35-5; and possession with intent to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:35-7. As a result, he was sentenced to twenty-four months at the Training School for Boys in Jamesburg. Appropriate fines and penalties were also imposed. The juvenile appeals, and we affirm.

The facts adduced at trial are as follows. On February 15, 2005, at 10:30 a.m., Newark Police Officers Padilla and Miranda were on patrol in a police car and were dispatched to Clinton Avenue and Hunterdon Street on a dispatcher's information that a tall black male, wearing a green jacket and jeans, was selling drugs. A.B., who matched the description from the dispatch, was observed on the corner of that location when the officers were one block away. The location was only three blocks away from the Clinton Avenue School.

Officer Miranda pulled the patrol car over to the side and parked. The officers then observed defendant talking to two females, who walked away as soon as the officers exited the car. As the police approached, directly in back of the suspect, A.B. also began to walk away, emptying the contents of two vials and then dropping the two vials on the ground. Officer Padilla recovered the vials and the residue contained in one of them later field-tested positive for cocaine. A search incident to A.B.'s arrest uncovered $409.45 on his person, consisting of 108 one-dollar bills; twenty $5 bills; eleven $10 bills; two $20 bills; one $50 bill; and five quarters and two dimes. At trial, Officer Miranda opined that the manner in which the money was found crumpled in various pockets was indicative of drug transactions.

The defense offered another version of the events that transpired that day. According to A.B.'s aunt, L.M., who had prior convictions for drug offenses and aggravated assault, and who admitted using heroin daily, she was with her nephew at the time, having just left her mother's home at 10:00 a.m. to go to a local fast food restaurant. L.M. first went into a store along the way, however, and after she exited, she observed the police searching A.B. and ordering about ten other people in that location to disperse. The area is a hangout for drug users, including herself, and empty vials could regularly be found on the ground. L.M. never saw her nephew with any drugs before the police arrived and observed the police pick up something from the ground before arresting A.B.

A.B.'s grandmother and guardian, D.B., testified that A.B. has resided with her for fourteen years. The day before his arrest, she gave him $250 - a $100 bill, five $20 bills, and one $50 bill - for his prom expenses, a fine accrued at Jamesburg, and allowance. A.B. acknowledged having about $400 on his person when arrested, but explained that $250 was from his grandmother, $100 from his girlfriend for Valentine's Day, and $75 from his employer for whom he had worked for about forty minutes the morning of his arrest, stacking shelves and sweeping the floor of the grocery store. He spent the rest of the time before 10:30 a.m. at the store playing cards and "hang[ing] around." He further explained that he had exchanged the one-hundred dollar bill given to him by his grandmother for single one-dollar bills so that he would appear to have more money.

According to A.B., when the police arrived, they scattered the other people present at the corner, but ordered him to put his hands on the wall, searched him, cuffed him, and placed him in the police car. He was searched more than three times. After finding nothing on his person, the police supposedly walked toward a nearby dumpster looking for vials which, after retrieval, the officers claimed were in A.B.'s possession.

Crediting the State's account, the trial judge found A.B. delinquent on all charges. On appeal, A.B. raises the following issues:

I. BY VIOLATING STATE V. BANKSTON, THE PROSECUTOR DEPRIVED A.B. OF HIS DUE PROCESS RIGHT TO A FAIR HEARING, U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10.

II. THE COURT COMMITTED REVERSIBLE ERROR IN PERMITTING OFFICER MIRANDA TO TESTIFY TO HIS OPINION AS TO THE ULTIMATE ISSUE OF A.B.'S GUILT OR INNOCENCE OF THE CRIMES CHARGED.

III. THE COURT VIOLATED A.B.'S RIGHT TO PRESENT A DEFENSE BY DENYING A.B.'S REQUEST FOR AN ADJOURNMENT TO PRESENT THE TESTIMONY OF THE MANAGER OF THE STORE WHERE A.B. HAD BEEN WORKING.

IV. THE SENTENCE OF THE COURT IS EXCESSIVE.

We address the issues in the order raised.

Defendant contends that he was unduly prejudiced by Officer Padilla's testimony about the reason the police appeared at the crime scene, which constituted inadmissible hearsay under N.J.R.E. 801(c) and State v. Bankston, 63 N.J. 263 (1973). We are satisfied that, under the circumstances, any error in this regard was harmless, and had no real possibility of leading the judge to a result he otherwise might not have reached. State v. Macon, 57 N.J. 325, 338 (1971); see also State v. Bakka, 176 N.J. 533, 547-48 (2003).

In Bankston, the Court held that "a police officer [may] explain[] the reason he approached a suspect or went to the scene of a crime by stating that he did so 'upon information received.'" 63 N.J. at 268 (quoting McCormick on Evidence 248 (2d ed. 1972)). However, an officer may not "[be] more specific by repeating what some other person told him concerning the crime by the accused . . . ." Ibid. To do so would be to allow a non-testifying witness to effectively give evidence of an accused's guilt in violation of the defendant's Sixth Amendment right to confrontation. Id. at 269; see also Crawford v. Washington, 541 U.S. 36, 50-51, 124 S. Ct. 1354, 1364, 158

L. Ed.2d 177, 192 (2004); State v. Branch, 182 N.J. 338, 348-49 (2005).

However, not every admission of hearsay evidence in violation of Bankston constitutes reversible error. See, e.g., State v. Hightower, 120 N.J. 378, 410 (1990); State v. Johnson, 216 N.J. Super. 588, 600-02 (App. Div.), certif. denied, 107 N.J. 647 (1987); State v. Douglas, 204 N.J. Super. 265, 272-75 (App. Div.), certif. denied, 102 N.J. 378 (1985). Likewise, under the circumstances of this case, we find that A.B. was not unduly prejudiced by Officer Padilla's statement of a report of a suspect selling drugs in the area.

This was a bench trial and the judge was fully capable of limiting his consideration of the hearsay statement exclusively to its proper purpose - namely to explain police presence at the scene and to refute any claim they acted in an arbitrary or unreasonable manner. See State v. Long, 173 N.J. 138, 152 (2002). More significant, proof of A.B.'s guilt was otherwise overwhelming. A.B. was observed emptying and discarding vials, the residue of which later scientifically tested positive for cocaine. Moreover, as the physical evidence makes abundantly clear, A.B. was not arrested because he matched the description reported by the police dispatcher, but rather because of his observed unlawful actions.

In stark contrast to the strength of the State's proofs, the judge found the defense account not credible. L.M. had a prior record, currently used drugs, and in any event, could provide no real exculpatory evidence because she was otherwise engaged at the time. Likewise, the grandmother could offer no first-hand account. As for A.B., he could not reasonably explain his activities for a substantial amount of time just prior to his arrest and his testimony accounting for his possession of so many one-dollar bills was simply implausible. We are, therefore, satisfied that any error in the admission of Officer Padilla's reference to the dispatch report was harmless, and does not warrant reversal.

A.B. next complains that Officer Miranda, who was never qualified as an expert, impermissibly offered a lay opinion that the manner in which the cash was found in the juvenile's pockets indicated "[n]arcotics transactions." We disagree.

Lay witnesses are permitted to give opinions that are based on personal knowledge. For example, police officers and other lay witnesses may testify that a car was apparently speeding. State v. Locurto, 157 N.J. 463, 471-72 (1999). In State v. Perez, 150 N.J. Super. 166, 169-70 (App. Div.), certif. denied, 75 N.J. 542 (1977), a detective not qualified as an expert, was allowed to compare a voice heard on a wiretap with that of a voice heard on an exemplar taken from a defendant. In State v. Johnson, 120 N.J. 263, 293-95 (1990), we upheld the admissibility of lay opinion testimony in which footprints were compared because "shoeprint patterns are often readily recognizable and well within the capabilities of a lay witness to observe.'" Id. at 294 (quoting Hutt v. State, 523 A.2d 643, 645-46 (Md. Ct. Spec. App.), cert. denied, 533 A.2d 1307 (Md. 1987)). In Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980), a police officer who investigated between 75 and 100 crimes in a particular neighborhood over a three-year period was permitted to offer his opinion that the neighborhood was a high-crime area.

Here, Officer Miranda, who was on the police force for four years and engaged in over one hundred drug arrests, simply explained that crumpled-up money in so many different denominations, including 108 single dollar-bills, was indicative of drug transactions. His testimony was based on his personal knowledge and was limited to those specific monetary patterns personally observed when recovering money during drug arrests. He never opined as to the ultimate question of A.B.'s guilt, which was properly left for the court's determination.

A.B. next contends he was denied due process when his request for an adjournment to produce his alleged employer was denied. We disagree.

Ordinarily, adjournments are within "the discretion of the trial [court]." State v. Kyles, 132 N.J. Super. 397, 402 (App. Div. 1975); State v. Lamb, 125 N.J. Super. 209, 213 (App. Div. 1973). On this score, it is clear that the "judge has the . . . responsibility . . . to see that the trial is . . . conducted in [an] orderly and expeditious manner." State v. Laws, 50 N.J. 159, 181 (1967) (citing State v. Guido, 40 N.J. 191, 207 (1963)). "'It is essential to the administration of justice that'" the trial judge "'be acutely responsive to the task
. . . . [of] supervisi[ng] and control[ling] . . . trials.'" State v. Stewart, 162 N.J. Super. 96, 104 (App. Div. 1978) (quoting State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963)).

Here, the matter had already been adjourned from April 8 to April 14, and defense counsel, as the court found, had ample time to call any witnesses he wished. Clearly, the defense should have anticipated the need for an explanation for the time A.B. left his home in the morning at 7:00 a.m. on the day of his arrest until he was actually observed by the police at approximately 10:30 a.m. Instead, the defense waited to request the testimony of A.B.'s employer until the close of all evidence. Moreover, this witness was never previously identified by the defense despite the requirement of Rule 3:13-3(d)(3) to provide, in advance of trial, "the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements." See also In re Lependorf, 212 N.J. Super. 284, 291-92 (App. Div. 1986) (citing Williams v. Florida, 399 U.S. 78, 80-86, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970)). Under the circumstances, the denial of A.B.'s adjournment request was well within the sound discretion of the trial judge.

Lastly, defendant contends his two-year sentence to Jamesburg was excessive. We disagree.

A.B.'s prior juvenile record was extensive, dating back to 1998 when he was only ten years old. In fact, the present acts of delinquency were committed while A.B. was on parole. The juvenile had been previously sentenced to Jamesburg, and he had been given three years probationary terms. Moreover, the judge's findings of aggravating factors (3), (4), (7) and (9), N.J.S.A. 2A:4A-44(a)(3), -(4), -(7) and -(9), were amply supported in the record, and while he addressed mitigation, determined that he was "hard pressed to find any [circumstances] that would apply." Finally, A.B.'s probation officer even recommended a custodial sentence. Under the circumstances, we find no warrant for our interference with the sentence imposed.

 
Affirmed.

(continued)

(continued)

11

A-6312-04T4

RECORD IMPOUNDED

February 21, 2006