STATE OF NEW JERSEY v. KENNETH LARKIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2515-04T42515-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH LARKIN,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 6, 2007 - Decided March 6, 2007

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-11-1234.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Paul H. Heinzel, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After his suppression motion was denied, defendant, Kenneth Larkin, was tried and found guilty by the jury of third-degree possession of a controlled dangerous substance (CDS) (heroin and/or cocaine), N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of a CDS (heroin and/or cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two). After merging count one with count two, the judge imposed a mandatory extended term sentence, see N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier.

Defendant raises these arguments on appeal:

POINT I

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED WHERE THE EVIDENCE SEIZED WAS IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS.

A. THE OFFICERS WERE NOT IN A LAWFUL POSITION TO VIEW THE EVIDENCE, THUS, SEIZURE OF THE PACKAGE WAS UNLAWFUL. (Not Raised Below).

B. THE PROPERTY SEIZED WAS NOT ABANDONED BY THE DEFENDANT, THUS, WAS PROTECTED BY THE FOURTH AMENDMENT.

POINT II

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

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING DETECTIVE STANDLER TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS.

POINT IV

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED. (Not Raised Below).

POINT V

THE COURT BELOW IMPOSED AN EXCESSIVE SENTENCE IN VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS.

The State concedes, and we agree, that because the sentence was above-presumptive, a remand for resentencing is required. See State v. Thomas, 188 N.J. 137 (2006). We reject the arguments raised in Points I through IV. We therefore affirm defendant's conviction but remand for resentencing.

Shortly before 7:00 p.m. on August 23, 2003, Elizabeth Police Officers Robert Cifrodelli, Michael Kurinzi, and Robert Kiley responded to the 1000 block of Flora Street, a known drug area, to investigate reports of ongoing narcotics distribution activity. The officers observed a group of men standing in front of 1018 and 1020 Flora Street. The two houses were separated by an alley about three to four feet wide. The officers established surveillance locations behind the houses in the backyard areas.

The officers saw a man remove the cap of a metal fencepost in the chain link fence separating the backyards of 1018 and 1020 Flora Street. He removed an item, appearing to be a plastic bag, and replaced the cap. The man went into the basement of 1020 Flora Street and emerged very shortly thereafter. He motioned through the alley between 1018 and 1020 Flora Street to one of the men standing with the group in front of the houses. An individual, later identified as defendant, came to that man, who handed defendant the plastic bag.

Defendant jumped over the fence into the yard of 1018 Flora Street, ascended the stairs to the porch of 1018 Flora Street and hid the plastic bag under the vinyl siding of the house. The two men then walked up the alley and joined the group of men on the sidewalk in front of the two houses.

The doors and windows of 1018 Flora Street were boarded up, and the house had a "for sale" sign on it. The officers believed that the house was unoccupied and abandoned.

Over the next thirty to forty minutes, the officers continued to surveil the "stash spot," and saw defendant go to that spot four times. Each time, he removed a small object and returned up the alley to the street where the other men were standing. No one else went to the stash spot during that time.

Cifrodelli communicated with other officers in the area in a marked patrol car. He provided them with a description of defendant, including his clothing, and directed them to arrest him. Those officers pulled up and detained defendant and another individual. Cifrodelli identified defendant, but told them the other individual was not involved and he was let go. Kiley and Kurinzi, never having lost sight of the stash spot since the beginning of their surveillance, went to that spot and recovered what was hidden under the vinyl siding, namely a plastic bag containing twelve glassine envelopes of heroin and thirty-one glass vials of cocaine. Some of the cocaine vials had yellow caps and some had black caps. The black-capped vials were larger and contained more cocaine than the yellow-capped vials. When defendant was arrested, a search of his person yielded $93 in currency, needles and a rubber band around his wrist. It was determined during the booking process that defendant did not live at 1018 Flora Street.

The individual first observed by the police, who removed the plastic bag from the fencepost and then handed it to defendant, was never seen again by the police after he walked up the alley to the sidewalk on Flora Street. However, Kurinzi's report stated that the arresting officers "arrived at the scene and detained both men, and Officer Cifrodelli responded to the street and positively identified both men as the men we sought in the rear yard." At trial, Kurinzi testified that the arresting officers indeed stopped two men, but that only defendant was positively identified and the second man detained was not the individual observed in the rear yard who removed the object from the fencepost. He said the contrary information in his report was a mistake. Likewise, Cifrodelli testified, "We never saw the first guy again. He never came back." Cifrodelli further explained that "we were waiting for the first guy to come back, believing that he was the main dealer. When he didn't return, we realized that [defendant] was selling quick, out of the bag and pretty soon there wouldn't be any left." Cifrodelli therefore decided to focus on defendant and apprehend him. Cifrodelli testified that he never identified the other individual detained on the street as the man he first saw removing the bag from the fencepost, and he could only surmise that the individual detained on the street "was probably standing next to [defendant] or in the area."

The State also presented the expert testimony of Sergeant Richard Standler of the Union County Prosecutor's Office, who was qualified as an expert in the field of narcotics distribution activity. Standler was presented with a hypothetical question that mirrored the facts testified to by the police witnesses. He opined, based upon those facts, that the CDS found under the siding was possessed with the intent to distribute. Standler based this opinion on several factors, including the quantity of drugs, the manner in which they were packaged, the variety of drugs (cocaine and heroin), the differing sizes and corresponding values of the cocaine vials, the area where the drugs were found, the money seized from the person in control of the drugs, and the actions of the person in control of the drugs.

Defendant did not testify and did not call any witnesses.

In denying defendant's suppression motion, the judge reasoned that when defendant placed the drugs in the siding of an abandoned house, he relinquished control of the drugs and had no constitutionally reasonable expectation of privacy in them. We find no error in the judge's conclusion.

Under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, "police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "Once a court determines that a warrantless search has occurred, its inquiry shifts to whether the search fits within a valid exception to the warrant requirement." Id. at 632.

However, this principle only applies when an accused has a legitimate expectation of privacy in the invaded place. State v. Stott, 171 N.J. 343, 354 (2002). The United States Supreme Court has stated that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967) (citation omitted). The threshold question, then, is whether defendant maintained a reasonable expectation of privacy in hiding the drugs in the siding of an abandoned house. See Stott, supra, 171 N.J. at 355.

We have held that "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy." State v. Linton, 356 N.J. Super. 255, 259 (App. Div. 2002). We see no material distinction between the case before us and Linton. The property at 1018 Flora Street exhibited sufficient indicia of abandonment to support the conclusion that it was an abandoned property. As in Linton, it was established that this defendant in fact did not live at 1018 Flora Street. Accordingly, defendant had no legal or other interest in the building and had no constitutionally reasonable expectation of privacy when hiding his narcotics there. The seizure of the narcotics without a warrant was constitutionally permissible under these circumstances.

Defendant's remaining arguments regarding the suppression issue lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We next address defendant's argument that his motion for a directed verdict at the end of the State's case based on due process entrapment should have been granted. Defendant's argument is predicated upon the proposition that the unidentified man who removed the drugs from the fencepost and handed them to defendant was a police informant. The trial judge rejected that proposition. We agree that the proposition is not supported by the record and amounts to speculation.

In determining whether a defendant has established due process entrapment, a court must focus on:

(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.

[State v. Johnson, 127 N.J. 458, 474 (1992).]

"[A] determination of due process entrapment focuses 'exclusively' on the State's conduct and the extent of its involvement in the crime, and not merely on whether that conduct induced or caused the crime." State v. Grubb, 319 N.J. Super. 407, 414 (App. Div.), certif. denied, 161 N.J. 333 (1999). The determination of due process entrapment is a matter of law to be decided by a court. Id. at 415. The burden of proof lies with the State, which must disprove due process entrapment by "clear and convincing evidence." State v. Florez, 134 N.J. 570, 590 (1994). But, before the burden shifts, the defendant must put forth some evidence of due process entrapment. Ibid.

Defendant relies upon the statement in Kurinzi's report that Cifrodelli positively identified the second man detained on Flora Street as the man first seen in the rear yard. Defendant contends that the release of that individual by the police demonstrates a purposeful effort to protect him. However, as we have stated, Kurinzi and Cifrodelli both testified that the statement in the police report was a mistake and the second individual detained was not the man who removed the object from the fencepost. The trial judge found the officers' testimony credible and their explanation reasonable. He therefore rejected defendant's contention that the first man seen in the rear yard was a confidential informant. We agree that the officers' explanation that the statement in the police report was a mistake was a reasonable one, and that statement in the police report is the only evidence that could support the contention that the first man observed in the rear yard was a confidential informant.

Further, while defendant characterizes the officers' testimony as indicating that they ignored the presence of the first individual, other portions of their testimony indicated otherwise. Cifrodelli explained that they never saw the first individual again after he left their view, although they were waiting for him to come back "believing that he was the main dealer." After thirty to forty minutes and four contacts by defendant with the stash, the police made a judgment call to arrest defendant before the stash might be exhausted.

Next, we consider the expert testimony of Detective Standler. Defendant raised no objection to Standler's testimony at trial. Therefore the introduction of that testimony will not be a basis for reversal in the absence of "plain error," clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

In the seminal case of State v. Odom, 116 N.J. 65 (1989), our Supreme Court established the scope of allowability of expert testimony incorporating the use of a hypothetical question about drug possession and distribution activities, including intent to distribute. The Court has reaffirmed the Odom principles and guidelines in State v. Summers, 176 N.J. 306 (2003), and, more recently, in State v. Nesbitt, 185 N.J. 504 (2006). In Nesbitt, supra, 185 N.J. at 514, the Court emphasized the gatekeeper role of trial courts in allowing expert testimony only when reasonably needed to assist the jury in understanding matters beyond their general knowledge and experience and in understanding the evidence.

The admissibility of expert testimony rests in the trial court's sound discretion. Summers, supra, 176 N.J. at 312. Such expert testimony is not objectionable on the basis that it embraces an ultimate issue to be decided by the trier of fact. N.J.R.E. 704. However, such testimony may be excluded if its probative value is substantially outweighed by the risk of undue prejudice. State v. Berry, 140 N.J. 280, 298 (1995). The underlying premise for allowing such testimony is that "'it is unreasonable to assume that the average lay person called to serve as a juror would necessarily know what a person who possessed [a certain quantity of drugs in certain circumstances] was going to do with it.'" Odom, supra, 116 N.J. at 76 (quoting State v. Perez, 218 N.J. Super. 478, 485 (App. Div. 1987)).

Odom, supra, 116 N.J. at 81-82, also set forth guidelines for the appropriate use of a hypothetical question in a drug case. The hypothetical question must refer only to the testimony and evidence adduced at trial. Id. at 81. The prosecutor may ask the expert if, based on the assumed facts, he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution. Id. at 82. The expert must advise the jury of the basis for his or her opinion, and should avoid the precise terminology of the statute defining the criminal offense and its necessary elements. Ibid. The expert opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," but cannot constitute the expression of a view that the defendant was guilty of the crime charged. Id. at 81. Finally, the trial court should instruct the jury on the weight to be accorded to expert testimony, emphasizing that the determination of ultimate guilt or innocence is to be made only by the jury. Id. at 82. All of these guidelines were followed here.

In Nesbitt, supra, 185 N.J. at 516, the Court emphasized that the use of a hypothetical question should not be permitted in cases where the fact pattern involves a straightforward hand-to-hand exchange between the defendant and another person. The Court thus distinguished cases in which this court found error in such straightforward situations. Ibid.; see State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999); and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

In the case before us, there was no eyewitness testimony about actual drug transactions. The police were positioned in the backyard and did not observe defendant directly handing objects to an alleged purchaser and receiving payment in return. No drugs were found on defendant's person when he was arrested. This case, therefore, is not like Boston, Singleton and Baskerville. Education of the jurors in the practices of drug dealers was appropriate, as was the hypothetical question. The admission of the expert testimony was not a mistaken exercise of discretion, Summers, supra, 176 N.J. at 312, and did not constitute plain error.

We find no merit in defendant's argument that the State failed to prove beyond a reasonable doubt the element of intent to distribute. We first note that defendant failed to move for a new trial on the ground that the verdict was against the weight of the evidence, and the issue is therefore not properly before us. R. 2:10-1. Nevertheless, "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," see State v. Reyes, 50 N.J. 454, 459 (1967), it is plain that the factual evidence provided by the police officers on the scene and the expert testimony provided by Standler were sufficient to establish "guilt of the charge [including intent to distribute] beyond a reasonable doubt." Ibid.

We affirm defendant's conviction, but remand for resentencing in accordance with Thomas, supra, 188 N.J. 137.

 

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A-2515-04T4

March 6, 2007