STATE OF NEW JERSEY v. YUSEF H. RICHARDSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2703-04T42703-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YUSEF H. RICHARDSON,

Defendant-Appellant.

________________________________________

 

Submitted December 20, 2006 - Decided May 15, 2007

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 04-03-00249.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Donald T.

Thelander, Assistant Deputy Public

Defender, of counsel and on the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent

(Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yusef H. Richardson appeals from a final judgment of conviction and sentence. The jury found defendant guilty of possession of cocaine, a crime of the third degree, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute a quantity of one-half ounce or more, a crime of the second degree, N.J.S.A. 2C:35-5a(1) and b(2) (count two); and possession of cocaine with intent to distribute in a school zone, a crime of the third degree, N.J.S.A. 2C:35-7 (count three).

Defendant argues that when two detectives of the "Narcotics Bureau" testified that he and his home were the focus of the narcotics investigation they conducted on September 20, 2003, he was deprived of his constitutional right of confrontation. See State v. Branch, 182 N.J. 338, 348-51 (2005); State v. Bankston, 63 N.J. 263, 269 (1973); U.S. Const. amend. VI; N.J. Const. art. I, 10. We conclude that an assertion that the police had information, not in evidence, that incriminated defendant as one involved in drug deals was implicit in their testimony and impermissible. See Branch, supra, 182 N.J. at 351; Bankston, supra, 63 N.J. at 270. With respect to defendant's convictions for possession of cocaine with intent to distribute, we cannot conclude that the error "'was harmless beyond a reasonable doubt.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)). Accordingly, we reverse and remand for a new trial on counts two and three of the indictment and affirm defendant's conviction under count one for the third-degree crime of possession of cocaine.

On September 20, 2003, officers of the Plainfield Police Department set up a surveillance in preparation for execution of a warrant authorizing a search of defendant's residence. The jury heard no testimony about that warrant or the evidence that supported its issuance. In his opening and closing statements to the jury, defendant's attorney explained that defendant did not possess any drugs with the intent to distribute and did not have possession of or intent to distribute the drugs found in his residence. Defense counsel never suggested that the police did anything improper during the investigation or search that led to defendant's indictment.

The following evidence was presented at trial. On September 20, 2003, members of the Plainfield Police Department conducted a narcotics investigation. Detectives Simeon, Grimmer, Robertson, Henderson, O'Brien, along with Sergeants Richards and Shelhammer, Lieutenant Newman, and Officers Maldanado, James and Woody were assigned to this investigation. Detectives Simeon, Grimmer and Robertson and Officer Maldanado testified at trial.

Detective Grimmer, the State's first witness, was working in his capacity as a Narcotics Bureau detective and involved in this narcotics investigation, which was led by Detective Simeon. The prosecutor asked Grimmer, "Who was the focus of that investigation?" Grimmer responded, "The focus of the investigation was Yusef Richardson." The prosecutor asked, "And to your knowledge where did Yusef Richardson live on that date?" Grimmer responded, "302 Lyman Place."

Grimmer explained that his role in this investigation was to "conduct a stationary surveillance of the house, 302 Lyman." Ten minutes before 5:00 p.m., he parked across the street from the front door of 302 Lyman Place. Minutes after, he saw defendant leave the house. He was wearing blue jeans, a white T-shirt with a red stripe across the front, which was not tucked in, and a baseball cap. He walked north to West Third Street, then west. Grimmer lost sight of defendant for a minute. When Grimmer saw defendant again, he was on a bicycle, which he rode one block to Astor Place and then turned east.

Grimmer radioed other members of the Narcotics Bureau to let them know defendant's "direction of travel." He continued his surveillance of 302 Lyman. No one went in or out.

Officer Maldanado, who is ordinarily assigned to the Street Crimes Unit, was assigned to the "take-down unit" in this narcotics investigation. He explained that the duty of one assigned to "take-down" is "to stop a particular person at a particular location." Maldanado, who was in an unmarked car on Clinton Avenue, received a radio transmission at approximately 5:00 p.m. He approached defendant, who was standing near the corner and "actively looking at his left hand." When Maldanado got closer to defendant, he saw "baggies in his hand." He arrested defendant, seized the baggies and took defendant to Detective Simeon.

At trial Maldanado identified defendant, the baggies he took from him and an elementary school that was less than 1000 feet from the corner on which defendant stood. The parties stipulated that Maldanado seized five small knots of cocaine with a net weight of .02 ounces and a larger knot of cocaine with a net weight of .07 ounces.

Detective Simeon, who was the lead detective for this investigation, confirmed that he was involved in the narcotics investigation on September 20, 2003. The prosecutor asked, "Who did that investigation involve?" Detective Simeon responded, "That involved Yusef Richardson." According to Simeon, the investigation also involved a residence, 302 Lyman Place. Simeon was familiar with the neighborhood because it is a high-narcotics crime area. He had conducted numerous investigations there. When Simeon saw defendant, he was standing on the corner of Astor Place and Clinton Avenue, leaning on his bicycle with his hand clenched. Simeon directed members of the team to detain defendant. He then directed other members of the team to go to 302 Lyman Place.

Detective Robertson, acting in his capacity as a narcotics detective on September 20, 2003, was part of the "search and entry" team. At approximately 5:13 p.m., on Simeon's command, he and other members of the team entered 302 Lyman Place. They secured the house and searched it. Mrs. Richardson, defendant's mother, was the only person inside.

Robertson searched the basement. He found men's clothes, boots and shoes, and narcotics paraphernalia on a bed and sofa. He saw two bags of cocaine, two boxes of sandwich bags, and a plate and scale. Traces of cocaine were later found on the scale. Robertson also found paperwork that included correspondence addressed to defendant at 302 Lyman Place and an identification card. He gave the evidence to Detective Simeon. He did not see any items that are used to consume cocaine. The parties stipulated that the cocaine Robertson took from the basement consisted of one large knot with a net weight of .24 ounces and one knot with a net weight of .16 ounces.

Mrs. Richardson testified that she and her son Yusef lived at 302 Lyman Place on September 20, 2003. No one else lived with them. The house is a two-family residence. She and defendant occupied the first floor and the basement. Her bedroom was on the first floor. Defendant used the larger of two rooms in the basement as his bedroom. She never went to or used his room in the basement. Defendant's brother, who rented the second floor of the house, had access to his living quarters through a separate entrance.

On the evening of September 20, 2003, Mrs. Richardson came home from work and attempted to rest in her bedroom. She heard a loud noise and jumped out of bed. By the time she got up, there was a police officer in her bedroom.

The first-floor area of 302 Lyman Place was searched. The parties stipulated that cocaine, with a net weight of .03 ounces, was found under the couch in the living room. Ninety dollars in cash was found under the same couch.

The defense did not dispute defendant's possession of the cocaine that was taken from defendant's person but contended that he possessed that cocaine for his own use and without intention to distribute. With respect to the cocaine found in the basement, the defense disputed both possession of and intent to distribute that cocaine.

Although defendant did not object at the time of trial, he now contends that it was error to permit Detectives Grimmer and Simeon to identify him and the house in which he lived as the "focus" of this narcotics investigation. His argument is that the testimony had no relevance beyond the impermissible, implicit assertion that the detectives had information about his involvement with drugs that was not adduced at trial. We agree.

Since defendant's trial, the Supreme Court has reemphasized that a police officer "may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351. If "'the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.'" Id. at 349 (quoting Bankston, supra, 63 N.J. at 271). When such testimony is admitted, the defendant is deprived of his right to confront and cross-examine the witnesses who could testify about the unspecified information that the officers have suggested they possess. Id. at 349-51.

In reviewing a claim that testimony "implies that the police officer has information suggestive of the defendant's guilt from some unknown source," courts must consider the testimony in the context of the evidence presented at trial to determine whether the testimony provides the basis for an inference that the defendant was implicated in a crime. Id. at 352. If the testimony has that capacity, it is inadmissible, even if it has some relevance to show that the police did not act arbitrarily, except in a case where the defendant invites the prejudice by "flagrantly and falsely suggesting that a police officer acted arbitrarily." Id. at 350-52 (discussing the principles and illustrating their application).

Measured against these standards, the testimony of Detectives Grimmer and Simeon was improper. The defense did nothing to suggest that there was anything arbitrary or improper about the way in which the police officers conducted the investigation, arrest or searches of defendant's person or residence. Nonetheless, the prosecutor opened the State's case with testimony that established that the Plainfield Police Department had assembled an impressive team of officers to conduct a narcotics investigation. The team, led by a detective from the Narcotics Bureau, was divided into units assigned to "surveillance," "take down" and "search and entry." Unfortunately, the jurors were also told, twice, that the investigation was focused on "Yusef Richardson" and a home in which the officers knew he lived. From that testimony, the jurors would likely infer that this impressive narcotics investigation was based on evidence not adduced at trial implicating defendant in the distribution of narcotics to a degree sufficient to warrant the effort expended in this investigation. The inescapable inference was that the officers had information that defendant had drugs that he intended to distribute.

Because there was no objection to this testimony, we must determine whether the error, which implicates defendant's right to confrontation, was plain. R. 2:10-2. "'[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'" Castagna, supra, 187 N.J. at 312 (alteration in original) (quoting Chapman, supra, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11; see Branch, supra, 182 N.J. at 353.

We have no doubt that the error was harmless with respect to defendant's conviction for possession of the drugs taken from his person at the time of his arrest. The evidence of his possession of that portion of the drugs was so overwhelming that, in his closing argument to the jurors, defendant's attorney conceded that defendant possessed the cocaine he had with him at the time of his arrest. We have no doubt that the jury would have convicted defendant of the third-degree crime of possession of cocaine even if the impermissible testimony had been excluded. Accordingly, we affirm his conviction for the third-degree crime of possession, count one.

We have a reasonable doubt, however, as to whether the impermissible testimony led the jurors to return a guilty verdict on counts two and three of this indictment. In order to convict defendant of those crimes, the State was required to establish that defendant had the intention to distribute the cocaine he possessed. Setting aside the impermissibly based suggestion that defendant was involved in drug trade, the evidence that supported a finding of intent to distribute was not overwhelming. An inference of intent, based on the packaging, quantity and the trace amounts of cocaine found on the scale in defendant's basement bedroom, was reasonably available. See State v. Samuels, 189 N.J. 236, 244 (2007). But the quantity of drugs, while significant, was not so large as to preclude an inference of possession for personal use, and the evidence did not exclude an inference that others, including defendant's brother and mother, had access to the basement and living room. Accordingly, "[w]e cannot say that the error did not have the capacity to cause an unjust result," Branch, supra, 182 N.J. at 354, and must reverse defendant's convictions for possession with intent to distribute and possession with intent to distribute in a school zone.

Given our disposition of the case, we decline to consider defendant's objections to the sentences imposed. Because the trial judge merged defendant's convictions on counts one and three into his conviction on count two, defendant did not receive a sentence for his conviction on count one. We have affirmed that conviction. "Convictions merged for the purpose of sentencing are not extinguished." State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.), certif. denied, 137 N.J. 313 (1994). Where, as here, "an appellate court reverses a defendant's conviction for an offense into which the trial court has merged a lesser offense, the State may elect not to retry defendant for the greater offense and instead request the trial court to 'unmerge' the lesser offense and sentence defendant thereon." Ibid.

Affirmed in part; reversed in part, and remanded for further proceedings.

 

Count four, which charged possession of cocaine with intent to distribute in a public recreation zone, a crime of the second degree, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1a, was dismissed.

(continued)

(continued)

12

A-2703-04T4

May 15, 2007