STATE OF NEW JERSEY v. CORNELL BOUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4013-05T44013-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CORNELL BOUNTY,

Defendant-Appellant.

________________________________

 

Submitted April 30, 2007 - Decided May 25, 2007

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, 05-02-0850-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cornell Bounty was charged in a four-count indictment with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of less than one-half ounce of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two); fourth-degree concealing evidence to hinder prosecution in violation of N.J.S.A. 2C:29-3(b) (count three); and fourth-degree flight to prevent arrest in violation of N.J.S.A. 2C:29-2(a)(2) (count four). After a Sands hearing, a three-day trial resulted in a verdict of guilty on all four counts on November 17, 2005.

Defendant was sentenced on January 6, 2006. The judge noted that defendant had three prior drug-related convictions and found aggravating factors three, six and nine. There were no mitigating factors. After merging count one with count two, the judge found that defendant was extended-term eligible and sentenced defendant to the maximum term on count two, ten years with five years of parole ineligibility, and imposed statutory penalties, including a six-month license revocation. On counts three and four the judge sentenced defendant to one year on each count to run concurrently with each other but consecutively to the sentence on count two, together with additional penalties. This appeal followed.

The conviction of defendant rested on the following evidence. On December 3, 2004, the police observed defendant engage in a hand-to-hand drug transaction with another man. Defendant handed the man a small object and received money in exchange. The transaction occurred in a vacant lot next to 713 Berkley Street in Camden. The police brought their unmarked vehicle to a stop and defendant made eye contact with Investigator Eife. That officer exited the vehicle, identified himself, and then approached defendant.

Defendant fled toward the back of 713 Berkley Street and was pursued by Investigator Eife and another officer. Eife kept defendant in sight at all times during the chase. Defendant approached a u-shaped area at the back of 713 Berkley Street, which was a home in poor condition with trash strewn throughout the rear of the property. Defendant ran to a window of 713 Berkley Street, punched through the window, and threw a small white object through the broken window. Investigator Eife ordered defendant to the ground and defendant complied. The pursuit and arrest took about one minute.

Another police officer was admitted into 713 Berkley Street by an Hispanic woman. The officer told her that someone may have thrown something through the rear window and the woman gave the officer permission to retrieve the item. In the kitchen at the rear of the house, the officer observed broken glass beneath a window and a clear plastic sandwich bag, which contained twenty-one smaller Ziploc bags filled with a white, rock-like substance that appeared to be crack cocaine. Each of the smaller bags was marked with "Number One." Defendant's person was searched incident to arrest, and the police found one more identically sized small Ziploc bag with "Number One" marked on it containing a similar white, rock-like substance. The police also recovered $257 from defendant. The police stored all twenty-two bags of cocaine together and this evidence was introduced at trial as one exhibit.

At trial, Senior Investigator Jeffrey Moore of the Camden County Prosecutor's Office, Narcotics Unit, HIDTA Task Force, was qualified as an expert in narcotics distribution. He testified that if an individual was arrested with twenty-two small, identical bags of cocaine and $250 in cash in his possession, he would conclude that the individual was selling or intending to sell those drugs. His conclusion was based on the quantity and packaging of the cocaine.

Defendant raises the following issues for our consideration:

POINT I - THE COURT'S REFUSAL TO COMPLY WITH DEFENSE COUNSEL'S REQUEST FOR A CORRECTIVE CHARGE TO CLARIFY ITS INSTRUCTIONS ON COUNT TWO BASED UPON THE COURT'S ANSWER TO A JURY QUESTION AS TO COUNT ONE WAS REVERSIBLE ERROR. (U.S. Const. Amend VI; N.J. Const. (1947) (Art. I, Para. 10).

POINT II - THE TRIAL COURT CONTRARY TO N.J.S.A. 403 REVERSIBLY ERRED IN ADMITTING INTO EVIDENCE THE PHOTOGRAPHS OF 713 BERKELEY STREET WHICH REFLECTED A BOARDED UP AND ABANDONED CONDITION WHICH IMPLIED TO THE JURY THAT THE BUILDING WAS ABANDONED AT THE TIME OF THE INCIDENT AND PREJUDICED BOUNTY'S DEFENSE THAT THE DRUGS FOUND IN THAT RESIDENCE COULD HAVE BE[EN] PLACED THERE BY A THIRD PARTY RATHER THAN BEING THROWN INTO THAT BUILDING. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para 10) (PARTIALLY RAISED BELOW).

POINT III - BOUNTY RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN FAILING TO PROPER[L]Y INVESTIGATE THE CRIME SCENE, FAILING TO MOVE TO SUPPRESS THE EVIDENCE FOUND IN 317 BERKELEY STREET AND IN FAILING TO FIND AND PRESENT CRITICAL WITNESSES (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para 10).

POINT IV - BOUNTY'S TEN-YEAR PRISON TERM SENTENCE WITH FIVE YEARS OF PAROLE INELIGIBILITY WAS UNCONSTITUTIONAL, ILLEGAL AND MANIFESTLY EXCESSIVE.

A. As Argued in Point I Hereof, Bounty's Conviction of Count 2, Possession of a CDS with Intent to Distribute Should Be Reversed; Therefore, an Extended Term Pursuant to N.J.S.A. 2C:43-6(f) Should Also Be Vacated.

B. Bounty's Ten-Year Prison Term within the Extended Term Range on his Conviction of Count 2 Violated his Federal and State Constitutional Rights to a Trial by Jury and to Confront Witnesses Against Him.

C. Improper and Excessive Sentence.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that these issues "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The photographs were clearly admissible and the minor discrepancy between the property at the time of the crime and at the time of the photograph, if anything, was harmful to the State, not defendant. The concerns about the effectiveness of counsel are not limited to the record before us and must be presented by an application for post-conviction relief. We add the following comments with respect to the charge and the sentence.

The jury during its deliberations posed the following question to the judge: "In regard to the possession charge, do we consider possession of the one bag found on Mr. Bounty or the 21 bags thrown in the house or all the cocaine combined?" The judge answered this question by instructing the jury as follows: "The answer is either or both as long as the facts in your mind meet the definition of possession as I gave it to you this afternoon. But it's either or both provided that possession is proven beyond a reasonable doubt." Defense counsel then expressed a concern that if the jury found defendant guilty of possession based on only the one bag of cocaine from his hat and not the others, "then what are they going to do with it when it comes to possession with intent? . . . [T]hey'll have the same question." The judge responded that she did not want to anticipate issues down the road and would only answer the question posed.

Defendant's concern is that if the jury found him guilty of possession based only on the one bag from his hat, the facts would not support a finding of guilty on the intent to distribute because the quantity in one bag was not sufficient to support a distribution conviction.

We find no merit in this argument because the jury found defendant guilty of concealing evidence to hinder prosecution. By necessary implication, the jury must have found that defendant possessed the twenty-one bags thrown through the window of 713 Berkley Street.

As to the sentence imposed, defendant contends that the "ten-year sentence within the extended term range was above the statutory presumptive seven-year prison term for that extended range." Defendant contends, as a consequence, that the sentence should be vacated and remanded under State v. Thomas, 188 N.J. 137 (2006); State v. Natale, 184 N.J. 458 (2005); and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Not so. The sentence was imposed months after the decision in Natale and, therefore, there was no statutory presumptive term for any ordinary or extended-term ranges in New Jersey. Natale, supra, 184 N.J. at 466.

Defendant also contends that the judge erred in failing to consider his relatively young age as a "non-statutory" mitigating factor. He also contends that the judge overlooked mitigating factors one and two. N.J.S.A. 2C:44-1(b)(1), (2). We do not find defendant's age of twenty-nine so young that we should conclude that the judge erred in failing to consider his age, as our Supreme Court did in State v. Dunbar, 108 N.J. 80, 95 (1987), where the defendant was twenty-two at the time of the offense, and as we did in State v. Tanksley, 245 N.J. Super. 390, 396-97 (App. Div. 1991), where the defendant was a juvenile at the time of the offense. Neither do we find any error in the judge's conclusion that the sale of cocaine threatens serious harm to others, precluding reliance on mitigating factor one. She also correctly rejected mitigating factor two, the defendant did not contemplate that his conduct would cause or threaten serious harm, because as an addict himself, defendant "should have understood and must have understood that his conduct would threaten serious harm to others."

Affirmed.

 

State v. Sands, 76 N.J. 127 (1978).

The substance tested positive for cocaine in the laboratory.

The judge charged both actual possession and constructive possession.

(continued)

(continued)

9

A-4013-05T4

May 25, 2007