STATE OF NEW JERSEY v. JAMIL SHABAZZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4567-04T44567-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMIL SHABAZZ,

Defendant-Appellant.

__________________________________

 

Submitted March 28, 2007 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2698.

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

Stuart Rabner, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Jamil Shabazz in October 2003 of two counts of second-degree possession of controlled dangerous substances (CDS), heroin and cocaine, with intent to distribute them within 500 feet of a public housing project, contrary to N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7.1. The jury also convicted defendant of four third-degree crimes, specifically two counts of possession of CDS with intent to distribute them within a school zone, contrary to N.J.S.A. 2C:35-7, and two counts of possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1). After appropriate mergers, the court sentenced defendant to a fifteen-year extended prison term on the heroin offenses, along with a concurrent seven-year term on the cocaine offenses.

Defendant appeals, raising numerous claims of error in the pretrial proceedings, the jury trial, and his sentencing. We affirm the convictions, but remand for resentencing.

I.

The underlying facts involve a narcotics surveillance on April 11, 2003 at the James Baxter Terrace Public Housing Complex in Newark. At about 7:00 a.m. that day, Newark Police Officer Eduardo Patimho noticed defendant loitering outside the housing complex in front of 214 Orange Street. Using binoculars, Officer Patimho observed defendant speak with an unidentified woman. The woman handed defendant money, and he in turn reached into his waist and handed the woman a plastic bag. Correctly believing this activity was a drug transaction, the police intervened and arrested defendant. The female customer got away.

A pat-down search of defendant revealed that he possessed eighteen glycine envelopes with red stamps and twelve glass vials with yellow caps. The items were field tested and shown to be heroin and cocaine, respectively. A subsequent laboratory analysis confirmed the CDS identifications. Defendant also was found with $116.85 in small bills and coins. These proofs were buttressed by the testimony of a narcotics distribution expert, Detective Reginald Holloway, who opined that the packaging and quantity of the seized drugs was consistent with distribution, not personal use.

After he was indicted for these various drug offenses, defendant moved to suppress the items that had been seized from his person. The suppression motion was denied.

At the ensuing four-day trial, the State presented the testimony of Officer Patimho, Detective Holloway, Dwayne Marshall (another police officer involved in the surveillance), and Tacor Patel (the forensic chemist who had confirmed the substances in laboratory testing). Defendant presented an investigator, Craig Davis, who testified that he had gone to the scene of the police surveillance and could not observe the front of 214 Orange Street from that vantage point. Defendant presented no other witnesses.

After the parties rested, defendant moved for a judgment of acquittal. The trial judge denied the motion. The jury convicted defendant on all eight counts charged in the indictment.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.

POINT II

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT (Plain Error).

POINT III

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE S-1B AND S-1C BECAUSE THE STATE FAILED TO ESTABLISH A SUFFICIENT CHAIN OF CUSTODY.

POINT IV

THE TRIAL COURT ERRED IN REFUSING TO REMOVE DEFENDANT'S HANDCUFFS DURING THE SUPPRESSION HEARING, VIOLATING HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM SUCH RESTRAINTS ABSENT NECESSITY, WHICH WAS NOT SHOWN, AND INTERFERING WITH DEFENDANT'S ABIITY TO ASSIST IN HIS OWN DEFENSE AND CONSULT WITH HIS TRIAL COUNSEL DURING THE SUPPRESSION HEARING.

POINT V

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Plain Error).

POINT VI

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY THE POLICE.

POINT VII

THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE.

POINT VIII

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

II.

Defendant first argues that the trial judge erred in denying him judgment of acquittal. In particular, defendant contends that the State presented insufficient evidence that he intended to distribute the drugs found on his person, and that the proofs were inadequate to show that the offenses took place within one thousand feet of school property and within five hundred feet of a public housing facility. We disagree.

In evaluating a motion for acquittal made at the close of the prosecution's State's case, a court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrel, 145 N.J. 112, 130 (1996).

A court may also set aside a jury verdict where the verdict is against the weight of the evidence. R. 3:20-1. The jury verdict should only be set aside by the trial judge where it clearly and convincingly appears there was a miscarriage of justice. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-74 (1974); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). On review, we apply essentially the same standard. Dolson, supra, 55 N.J. at 7. Our review is limited, and we must give due regard to the jury's assessment of witness credibility based on its opportunity to have heard live witness testimony and to have gained a "feel for the case." State v. Sims, supra, 65 N.J. at 374.

We now apply these settled precepts to defendant's arguments for acquittal. As to the alleged inadequacy of proof of intent to distribute, we further apply the plain error standard because this ground for acquittal was not argued to the trial judge. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). In any event, we discern no error, plain or otherwise.

The proofs were abundant to support a finding that defendant intended to distribute the CDS seized from him, including the observations of Officer Patimho, who witnessed defendant's apparent drug sale to the woman; the unrebutted expert testimony of Detective Holloway interpreting the situation; and the amounts of heroin, cocaine and currency found on him.

In this regard, we reject defendant's claim that the hypothetical questions posed to Detective Holloway were in any way improper under State v. Odom, 116 N.J. 65, 76 (1989). We also reject defendant's claim that the expert's explanation of the various means that street dealers use to "stash" narcotics, including concealment in their clothing, was not supportive of his guilt. We further note that the disagreement between Officer Patimho and the defense investigator as to what the police could have observed through binoculars from their surveillance location was simply a credibility issue for the jury. Even if the officer's testimony had been rejected, the remaining proofs alone are more than ample to support defendant's guilt.

Defendant's additional contention, that the State failed to prove the required proximity of his conduct to school property, and also to a public housing complex, is equally without merit. In 1998, the Legislature amended the school-zone CDS statute, N.J.S.A. 2C:35-7, and "authorized municipalities and counties to produce a map 'for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board.'" State v. Thomas, 132 N.J. 247, 254 (1993) (quoting L. 1988, c. 44; N.J.S.A. 2C:35-7). Significantly, this amendment provides that such a map "shall constitute prima facie evidence of the location and boundaries of [the 1,000 foot areas surrounding school property used for school purposes]." Ibid. (alteration in original). There are two prerequisites to the evidential use of such maps: (1) the map must be properly authenticated; and (2) "the municipality or county [must have] adopted a resolution or ordinance approving the map as [an] official finding and record of the location and boundaries of the area or areas on or within 1,000 feet of the school property." Ibid. (alteration in original). A similar approach is permitted for establishing the 500-foot proximity to public property under N.J.S.A. 2C:35-7.1. See N.J.S.A. 2C:35-7.1(e)(allowing the use of maps or diagrams for that purpose); see also State v. Trotman, 366 N.J. Super. 226, 232-35 (App. Div. 2004).

Here, the State entered two physical items into evidence to establish the pertinent locations: (1) a map (Exhibit S-8) and (2) the City of Newark's ordinance establishing 500 foot and 1,000 foot zones (Exhibit S-9). Additionally, the State presented testimony from Officer Marshall, who stated that the McKinley Elementary School was within 1,000 feet of the location of defendant's arrest, and operational at the time. Officer Marshall also testified that Baxter Terrace was an operating public housing facility at the time of the arrest. The State further presented testimony from Officer Patimho, who confirmed that defendant was in possession of the CDS at the time of his apprehension within 1,000 feet of another school, the Barnett Street Elementary School, and within 500 feet from the operational Baxter Terrace housing complex. The necessary proximity under both statutes was clearly established beyond a reasonable doubt, and the acquittal motion was properly denied.

III.

Defendant next maintains that the jury charge was flawed. He contends that the judge should have informed the jury that the State must prove that an "objectively reasonable person could know that the elementary schools at issue were school property used regularly, consistently, and actually for such school purposes, and that the housing facility at issue was operating as a public housing facility." Since defendant did not object to the jury charge at trial, we assess this claim under the plain error standard of R. 2:10-2. State v. Macon, supra, 57 N.J. at 337; see also State v. Wilbely, 63 N.J. 420, 422 (1973). Defendant relies on State v. Ivory, 124 N.J. 582 (1991). In Ivory, the Supreme Court considered the applicability of the school-zone CDS statutes to properties with ambiguous uses. In such circumstances of alleged ambiguity, evidence other than a map and a municipal ordinance may be considered to resolve the question whether the property is "regularly, consistently, and actually 'used for school purposes.'" Id. at 592 (quoting N.J.S.A. 2C:35-7). Published schedules, newspaper accounts of school events, leases, use of the premises by uniformed students and notice of use may, establish that an ambiguous property was used for school purposes. Id. at 590-92.

As Ivory observed, "[i]n most cases, like that of a school [building] itself . . . use 'for school purposes' will be self-evident." Id. at 591. In Ivory, however, the use of the property in question was ambiguous, as the case concerned a park that was used at times for school athletics. Similarly, defendant relies upon State v. White, 360 N.J. Super. 406, 412-13 (App. Div. 2003), which involved a building that did not house regular classes but which the board of education used to operate an after-school homework club. Defendant argues that, pursuant to Ivory and White, the judge should have issued the jury a specific instruction underscoring the State's burden to show that "an objectively reasonable person" would have known that the school properties in question were actually used for school purposes. He urges that a similar instruction should have been issued concerning the use of the public housing complex.

We are unpersuaded that the charge was deficient. As we have already noted, the evidence at trial was more than sufficient to establish that the Barnett Street Elementary School and the McKinley Elementary Schools, both of which were located within 1,000 feet of defendant's arrest, were used for school purposes. Likewise, the proofs are clear that Baxter Terrace was an operational public housing project. There was no counterproof or ambiguity about the uses of those premises. Hence, Ivory and White are entirely distinguishable.

As there was no genuine disputed issue concerning the operational status of the elementary schools and the public housing project, the judge had no obligation to issue the supplemental instruction under the model jury charges containing the "objectively reasonable person" language. See Model Jury Charges (Criminal), 2C:35-7 (1992); see also State v. Thomas, supra, 132 N.J. at 259 (noting that the supplemental charge is unnecessary where the use of the property is "unambiguous and uncontroverted").

IV.

Defendant further argues that the trial judge erred in denying his suppression motion and admitting into evidence the heroin and cocaine seized from him. Specifically, he contends that the trial court "should have excluded the State's exhibits . . . because the State failed to establish a sufficient chain of custody showing that these drugs [that were] analyzed [in the laboratory], were in fact the substances seized from defendant's person on the day in question." This argument has no merit.

"Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). In Brown, we determined that a chain of custody is sufficient if there is a "reasonable probability that the evidence has not been changed in important respects, or is in substantially the same condition as when the crime was committed." Id. at 28 (citations omitted). We explained that reasonable probability does not require the State to "negate every possibility of substitution or change in condition between the event and the time of trial." Id. at 27.

In the present case, there was no suggestion of irregularity in the handling of the drugs seized from defendant's person, or of tampering with the drugs. Officer Patimho clearly explained in his testimony where he found the drugs on defendant during the course of patting him down. He further testified that Officer Cualo conducted a field test in his presence, marking each item with his initials, the date, and a control number. The drugs were then taken to the Newark Police Department property room, and eventually sent to the Newark Police Laboratory. The chemist, Patel, testified that the items were marked with the same initials and lab numbers appearing on the trial exhibits. Patel also testified that the substances appeared to be in the same condition at trial that they did at the time he tested them.

Given the circumstances, we discern no misapplication of discretion by the trial judge in finding the chain of custody sufficient to admit the exhibits.

V.

We have carefully considered defendant's additional substantive arguments for reversal of his convictions, and find that they lack sufficient merit to warrant extended discussion in this written opinion. R. 2:11-3(e)(2). We briefly note in passing that it is inconsequential that defendant was in shackles during the suppression hearing, as the court afforded him an ample opportunity to confer with counsel at any time during the proceedings, even inviting him to take to a recess to draw a diagram for his lawyer. Further, we discern no plain error in the prosecutor's comments during summation, which were not objected to by defense counsel at trial and which were not so inflammatory as to cause a miscarriage of justice. See State v. Ramseur, 106 N.J. 123, 320 (1987). Finally, we are confident that defendant's warrantless arrest, immediately after being observed on the street by the surveillance police officer selling what appeared to be narcotics, was supported by probable cause, see State v. Sullivan, 169 N.J. 204, 211 (2001), and that the ensuing search of his person was properly conducted incident to the arrest. See State v. Oyenusi, 387 N.J. Super. 146, 159 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007).

VI.

Lastly, we note that the State concedes that a remand for defendant's resentencing is required under State v. Natale, 184 N.J. 458, 482 (2005), because the extended fifteen-year sentence imposed on the heroin-based offenses was well above the former presumptive term for a second-degree crime and the sentencing judge relied on factors beyond recidivism.

Affirmed as to defendant's convictions; remanded for resentencing.

 

State v. Artwell, 177 N.J. 526, 539 (2003), addressing the potential prejudice to a defendant flowing from that defendant being restrained in the presence of a jury, does not apply to a bench hearing on a motion to suppress.

(continued)

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A-4567-04T4

July 25, 2007