STATE OF NEW JERSEY v. JOHN OLEXA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3315-04T43315-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN OLEXA,

Defendant-Appellant.

____________________________

 

Submitted November 1, 2006 - Decided June 4, 2007

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Warren County, 04-06-252-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, of counsel and on the brief).

Thomas S. Ferguson, Warren County Prosecutor,

attorney for respondent (Tara J. Kirkendall,

of counsel and on the brief).

PER CURIAM

Defendant John Olexa appeals from his conviction for conspiracy to distribute heroin, a crime of the third-degree, contrary to N.J.S.A. 2C:5-2 (count one); distribution of heroin, a crime of the third-degree, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); possession of heroin with the intent to distribute, a crime of the third-degree, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); and possession of heroin, a crime of the third-degree, contrary to N.J.S.A. 2C:35-10(a)(1) (count four). On January 21, 2005, the sentencing judge merged the convictions in counts three and four for possession of heroin and possession of heroin with the intent to distribute. Defendant was sentenced on counts one and two for conspiracy and distribution of heroin to two concurrent extended terms of five years with three years of parole ineligibility.

On January 8, 2004, Warren County prosecutor's detectives Justin Boyce and Steven Hare were conducting an investigation of illegal drug activity at 69 Shultz Avenue in Phillipsburg where defendant and his girlfriend Stephanie Groff lived. Hare was wired with a hidden microphone which would broadcast conversations that would be heard and recorded by Boyce. A confidential informant was enlisted to introduce Hare to Olexa and Groff to make a heroin purchase. The informant approached the house and told Groff that "a friend waiting in the car" wanted to buy heroin. Groff invited both the informant and Hare into the house. When they told Groff that they wanted to buy $100 of heroin, she said that she would contact Olexa by phone. Groff made a call on her cell phone and reported that the defendant would return shortly. Exactly eighteen minutes later, the defendant and another man entered the apartment. Hare repeated that he wanted to buy heroin and gave defendant $100. After Groff said there was no heroin in the apartment, the defendant and other man left. They returned twenty minutes later and went into a room at the back of the apartment. Hare signaled for the informant to go into the room and, a short time later, the informant returned and handed Hare six packets of heroin.

During Hare's testimony, the recorded conversations with the defendant and Groff were played for the jury. Groff then testified for the State under the terms of an agreement that she would receive a time-served custodial sentence. She corroborated the testimony of Hare as to the heroin transaction on January 8, 2004, and said she and the defendant distributed heroin from their apartment for a period of one to two years.

The State also introduced a post-Miranda taped statement by defendant on the day of his arrest, March 17, 2004. Defendant admitted he had been using heroin for a year and a half to two years and also made purchases. He had no memory of the incident on January 8, 2004, but said, "[I]t sounds like something that may have happened, yes." Following the State's case-in-chief, the defense rested without calling any witnesses.

On appeal defendant makes the following arguments:

POINT I - THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE ON WITNESS CREDIBILITY BECAUSE IT FAILED TO GIVE THE JURY ADEQUATE GUIDANCE ON HOW TO ASSESS STEPHANIE GROFF'S CREDIBILITY IN LIGHT OF THE "COOPERATE AGREEMENT" ENTERED INTO BETWEEN MS. GROFF AND THE STATE. (Not Raised Below.)

POINT II - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION.

POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" WAS IMPROPERLY INTRODUCED INTO THE TRIAL BY THE PROSECUTOR. (Not Raised Below.)

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING TWO CONCURRENT EXTENDED TERM SENTENCES.

Defendant argues the trial judge committed plain error in not charging the jury sua sponte "that Ms. Groff had a strong motivation to inculpate the defendant, and therefore her testimony was inherently suspect." In other words the defendant claims that the accomplice charge should have been submitted to the jury although no request was made. However, our courts have repeatedly held that the failure to give the accomplice charge when not requested does not constitute error. State v. Gardner, 51 N.J. 444, 460-61 (1968); State v. Artis, 57 N.J. 24, 33 (1970); State v. Shelton, 344 N.J. Super. 505, 519-20 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). Moreover, the jury was fully aware of the details of the State's agreement with Groff and defense counsel vigorously cross-examined her on the subject. Therefore, the standard credibility charge was more than adequate in these circumstances.

Defendant's claims of prosecutorial misconduct in opening statement and summation are without merit and need not be considered in a written opinion. R. 2:11-3(e)(2). See State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Ramseur, 106 N.J. 123, 232 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956).

Finally, the State concedes that the imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) on the conspiracy count is erroneous because the statute does not permit an extended term sentence. Therefore, we remand for the purpose of correction of sentence.

Affirmed in part. Remanded in part.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-3315-04T4

June 4, 2007