STATE OF NEW JERSEY v. JOSE A. FIGUEROA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4504-04T44504-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE A. FIGUEROA,

Defendant-Appellant.

_____________________________________________________________

 

Submitted January 9, 2007 - Decided June 19, 2007

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 01-05-0621, 01-08-0931.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, (Leslie-Ann Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jose Figueroa appeals from a judgment of conviction arising out of Indictment No. 01-05-0621 (the first indictment) for third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and third degree possession of CDS with intent to distribute within 1000 feet of a public school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three). Defendant also appeals from the judgment of conviction entered in accordance with his plea of guilty to one count of third degree possession of CDS, N.J.S.A. 2C:35-10a(1), under Indictment No. 01-08-0931 (the second indictment). The remaining three counts of the second indictment - third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (count three); and criminal contempt, N.J.S.A. 2C:29-9 (count four) - were dismissed.

The court merged counts two and three of the first indictment into count one, and sentenced defendant to four years in prison, with a three-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-7.2. For the conviction stemming from the guilty plea to the possession count of the second indictment, defendant received a consecutive sentence of four years.

The facts underlying the first indictment were developed through the testimony of Detective Victor DeFilippo, Detective John Quick, Sergeant Albert J. Camisa and defendant Jose Figueroa in two trials before different juries. On the evening of April 18, 2001, Detectives DeFilippo, Hillyer and Quick were patrolling the area of Remsen Avenue in New Brunswick in an unmarked van. Near the intersection of Remsen and Hale Street, which they regarded as a high crime area, the officers noticed two individuals facing each other near the side of the Tecate Bar. From their view approximately thirty yards away, the officers suspected that these individuals, later identified as defendant and Maurice Hawkins, were about to engage in some sort of transaction.

The officers made a right turn onto Hale Street and from that vantage point, about twelve to fifteen feet away, they observed Hawkins give defendant an undetermined amount of currency. The officers testified defendant put the money into his left front pocket and spit out into the palm of his hand a couple of bags, about a quarter of an inch long that contained a white substance which the officers believed was cocaine. The officers testified that they were able to observe these men continually during the course of this suspected transaction.

Following the transfer of money, the officers exited the van and approached defendant and Hawkins. As they did so, DeFilippo heard Hawkins identify them as police officers, at which point defendant calmly put the bags back into his mouth, turned, and began to walk away. Quick reacted by grabbing defendant from behind, by the neck. Quick gripped defendant by his throat and cheek; he put his hand in defendant's mouth and "swept" his mouth with a finger causing the baggies to fall, some into Quick's hand and some onto the ground. There were ten baggies. The officers arrested both men and seized ninety-four dollars from defendant's pockets, thirty dollars of which came from his left front pocket.

The State's expert in the field of CDS transactions, Sergeant Albert Camisa, opined at trial that the manner in which defendant concealed the cocaine in his mouth and the amount of cocaine were both consistent with an intent to distribute, rather than possession for personal use. The State also introduced into evidence a drug free school zone map for the area around the Paul Robeson School, and the New Brunswick Ordinance which created the zone.

Defendant testified on his own behalf and asserted that on the evening of April 18, shortly before he was arrested, he had purchased the cocaine that was found in his possession. He testified he did not sell, share or give any portion of the cocaine to anyone else, nor did he intend to do so. He stated that he had been a cocaine user for about fifteen years and that evening he had paid one hundred dollars for ten baggies for his personal consumption. He estimated the drugs might have lasted about a week, depending on whether he could have controlled himself. Defendant also revealed that he had previously been convicted of two third degree offenses for which he had served two concurrent fifteen-month terms.

On May 13, 2004, the jurors in the first trial commenced their deliberations and on May 14, 2004, they found defendant guilty of count one, possession of cocaine. They reported they were hopelessly deadlocked and unable to reach a verdict on the two remaining counts. The court accepted the verdict on count one and the remaining counts were retried before a new jury on August 3, 2004. That jury considered essentially the same proofs as the first jury and returned a verdict on August 4, 2004, finding defendant guilty on counts two and three.

Thereafter, on October 18, 2004, defendant agreed to enter a plea of guilty to the charge of third degree possession of cocaine contained in the second indictment; and on November 19, 2004, the court sentenced defendant on the convictions resulting from the trial and the plea.

On appeal from the two judgments of conviction, defendant raises the following arguments:

POINT I: TRIAL COURT COMMITTED PLAIN ERROR IN TRIAL 1, DENYING THE MOTION TO SUPPRESS COCAINE SEIZED AS THE FRUITS OF AN IMPROPER STOP.

POINT II: TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF THE REMOTE DISTRICT COURT CONVICTIONS TO BE USED AT TIME OF TRIAL ONE, AS WELL AS TRIAL TWO (NOT RAISED BELOW).

POINT III: THE CONVICTION IN TRIAL TWO FOR THE CHARGE OF POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE VACATED (NOT RAISED BELOW).

POINT IV: THE CONVICTION IN TRIAL TWO FOR THE CHARGE OF POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF A SCHOOL ZONE WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE VACATED, PARTICULARLY IN LIGHT OF THE COURT'S PLAIN ERROR IN FAILING TO INSTRUCT THE JURY ON WHAT, IF ANY, INFERENCES IT COULD DRAW FROM THE MAP AND THE ORDINANCE IN THEIR DELIBERATIONS (NOT RAISED BELOW).

POINT V: THE TESTIMONY OF THE STATE'S EXPERT IMPERMISSIBLY CONSTITUTED AN EXPRESSION OF HIS OPINION THAT DEFENDANT WAS GUILTY OF THE CRIME CHARGED AND FURTHER TAINTED THE FAIRNESS OF THE TRIAL BY HAVING HIM OFFER TESTIMONY ABOUT THE FACTS THAT WERE WITHIN THE KEN OF THE JURY (NOT RAISED BELOW).

POINT VI: THE TRIAL COURT COMMITTED PLAIN ERROR IN TAKING DEFENDANT'S PLEA WHEN IT WAS EVIDENT FROM DEFENDANT'S QUESTIONS AT THE PLEA AND THE SUBSEQUENT SENTENCING THAT HE DID NOT UNDERSTAND WHAT HE WAS AGREEING TO (NOT RAISED BELOW).

POINT VII: DEFENDANT'S SENTENCE WAS ILLEGAL.

Defendant first argues that it was error to deny his motion to suppress the cocaine seized from his mouth. In denying the motion, the court found the testimony of DeFilippo, the only witness, to be credible and concluded that there existed probable cause to arrest the defendant. We agree.

While there exists no precise definition of "probable cause," generally it exists where police officers are aware of sufficient facts and circumstances to warrant a reasonable person to believe that a crime has been or is being committed. State v. Moore, 181 N.J. 40, 46 (2004). Here, giving due deference to the judge's credibility determinations, State v. Locurto, 157 N.J. 463, 471 (1999), DeFilippo testified at the suppression hearing that he saw Hawkins give money to defendant, which defendant pocketed. Defendant then spit several small baggies containing a white substance into his hand, which the officers believed was cocaine that defendant intended to pass to Hawkins. Hawkins saw the officers approaching and announced that fact before any suspected drugs could be handed to him. These observations and impressions were sufficient to warrant the officer's belief that a crime was being committed. Defendant does not deny that he possessed the subject CDS or that he put it in his mouth. He testified on direct examination that "when I buy the drugs I just put it in my mouth because I know that is an illegal thing to have, so it's easier to carry it in your mouth." On cross-examination, defendant testified he showed Hawkins the cocaine he had just bought "and I was going to put it in my mouth and at that instant the patrol arrived." On redirect examination, he said when the police came he took a step back and "I tried to put them [the drugs] in my mouth before the police arrived there . . . I don't know if one or two fell right into my mouth, but I was trying to do that when the police was coming." He explained further, "I was putting it in my mouth and I couldn't get to put them all in my mouth because the police arrived there right away."

Defendant only disputed whether the drugs might have been visible to the officers when he was talking with Hawkins and whether he possessed the drugs solely for his personal consumption rather than for intended distribution, as charged by the State. Under such circumstances, the search conducted incident to defendant's arrest was permissible, and the denial of defendant's motion to suppress the evidence is wholly sustainable. See, e.g., State v. O'Shea, 16 N.J. 1, 3 (1954). See also State v. Santos, 101 N.J. Super. 98, 102 (App. Div.), certif. denied, 52 N.J. 171 (1968) (approving the use of reasonable force to prevent a suspect from swallowing narcotics assertedly handed to him by defendant as they were about to be arrested).

Defendant next argues, for the first time on appeal, that the court erred by allowing the admission of his prior convictions at both trials. In 2003, defendant was convicted, in the United States District Court for the Eastern District of Pennsylvania, of conspiracy to import a controlled dangerous substance and attempted possession with the intent to distribute and he received fifteen months in jail. After sanitizing them, the judge ruled these convictions as admissible.

As provided by N.J.R.E. 609, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." That rule applies to defendants who elect to take the stand in criminal proceedings, as it does to any other witness. The discretion of the trial judge is broad and the key to exclusion is remoteness. State v. Harvey, 121 N.J. 407, 432 (1990); State v. Sands, 76 N.J. 127, 144 (1998); State v. Drury, 382 N.J. Super. 469, 484 (App. Div.), aff'd in part, rev'd in part, 190 N.J. 197 (2007).

In State v. Harvey, the court affirmed the use of a conviction that was seven-years old. Harvey, supra, 121 N.J. at 432. In State v. Sands, the court approved of the use of convictions going back more than twenty years where the defendant's record was extensive and where many of the offenses were committed before the full term of the prior sentences had expired. Sands, supra, 76 N.J. at 144. In this case, the prior convictions were still less than one year old at the time of the second trial. Thus, even if the scope of our review did not ordinarily require us to defer to the trial court's ruling on the admissibility of evidence of other crimes, we would be hard pressed to disagree with the court's conclusion here, that the one year old Pennsylvania convictions were not so remote that they should have been excluded under N.J.R.E. 609.

In points III and IV of his brief on appeal, defendant seeks to challenge his conviction on counts two and three of the first indictment as being against the weight of the evidence. Defendant claims that it was plain error for the court not to instruct the jury on what inferences it was allowed to draw from the admission of the drug free school zone map and the enabling ordinance. Because these issues were not raised at trial and were not made the subject of a motion for a new trial, defendant is procedurally barred from pursuing these issues on appeal. R. 2:10-1; State v. Marinez, 370 N.J. Super. 49, 56 (App. Div.), certif. denied, 182 N.J. 142 (2004). We do not perceive that these issues have a clear capacity to produce an unjust result and we decline to consider them.

Also raised on appeal is whether the testimony of the State's expert constituted an impermissible opinion on defendant's guilt. At the time of his testimony, Camisa had been a law enforcement officer for twenty-six years and had more than twenty years of training and experience with drug transactions. Through the course of his career, Camisa received training in drug enforcement from various federal agencies as well as with the New Jersey State Police. He had also participated in over three hundred undercover drug purchases and spoken with drug dealers and customers to better comprehend the "tricks of the trade."

The admissibility of an expert's opinion is within the sound discretion of the trial court, and we are satisfied the admission of Camisa's opinion in this case was not an improper exercise of such discretion. See State v. Nesbitt, 185 N.J. 504, 513-15 (2006); State v. Berry, 140 N.J. 280, 301-04 (1995); State v. Odom, 116 N.J. 65, 81 (1989).

In light of his experience and training, Camisa was clearly in a position to offer information and insights that would be helpful to the average juror in interpreting whether carrying individual packets of drugs in one's mouth was behavior consistent with an intent to distribute drugs. In addition, the court gave the model jury charge on the use of expert testimony and informed the jurors that they were not bound to accept Camisa's opinion and were free to reject it.

Defendant also challenges the court's acceptance of his guilty plea on the second indictment, contending that he did not fully understand the consequences of the plea. Based on our review of the transcript of the plea hearing, we reject that contention. Although defendant initially expressed concern, that concern was that the plea might foreclose his right to appeal the determination (in the trial of the first indictment) that he possessed the drugs with intent to distribute. That right was not compromised. Moreover, defendant derived a genuine benefit from the plea agreement. We are satisfied defendant made a knowing and voluntary decision to enter into the plea agreement. See generally, State v. Bellamy, 178 N.J. 127, 134-35 (2003).

Finally, defendant claims that his sentence is illegal. In reviewing a sentence, we must make the following determinations: whether the appropriate sentencing guidelines were followed; whether the findings of fact were grounded in competent, reasonably credible evidence; and whether in applying those guidelines to the facts of the case, the sentencing court showed such a "clear error of judgment that it shocks the judicial conscience" such that a sentence should be modified on appeal. State v. Roth, 95 N.J. 334, 362-65 (1984); State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Defendant understood a four-year term would be imposed pursuant to the plea agreement on the second indictment and that such term would run consecutive to the sentence on the first indictment. A sentence imposed pursuant to a plea agreement is accorded a presumption of reasonableness and will not be overturned absent a showing of a clear abuse of discretion. State v. Pillot, 115 N.J. 558, 566 (1989). We perceive no clear error of judgment or abuse of discretion, and the aggregate sentence imposed on defendant does not shock the judicial conscience.

 
Affirmed.

The transcript of the sentencing hearing reflects the court's dismissal of counts two, three and four of the indictment, but the November 19, 2004 judgment of conviction does not explicitly recite the dismissal. Though that disposition is obvious through deduction, we deem it appropriate that the matter be remanded in order that the judgment of conviction may be amended to recite the dismissal of counts two, three and four.

In the first trial, conducted in May 2004, the jury found defendant guilty of possession of CDS, but was unable to reach a verdict on the two counts charging possession with intent to distribute and possession with intent to distribute near school property. In a second trial, involving only the two counts of possession with intent to distribute, conducted in August 2004, the jury found defendant guilty of both counts.

Hawkins was charged with loitering and later released. He did not testify at trial.

If defendant had been found guilty of the counts that were dismissed as part of the plea agreement, he would have been eligible for an extended-term sentence. By pleading guilty to possession only, he was sentenced on the second indictment to an ordinary term with no parole ineligibility, though the sentence was to run consecutive to the sentence for the convictions imposed as a result of the jury verdict stemming from the first indictment.

(continued)

(continued)

10

A-4504-04T4

June 19, 2007