STATE OF NEW JERSEY v. KEVIN GAUSE, a/k/a KEVIN L. GAUSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6627-04T46627-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN GAUSE, a/k/a

KEVIN L. GAUSE,

Defendant-Appellant.

_____________________________________

 

Submitted November 28, 2007 - Decided

Before Judges Wefing, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1456.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant Kevin Gause was convicted on all five counts of an indictment charging him with: third-degree conspiracy, pursuant to N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) & -5(b)(3) (count three); third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7 & -5(a) (count four); and second-degree possession with intent to distribute on or near a public building, N.J.S.A. 2C:35-5(a) & -7.1 (count five). At the time of sentencing, the judge granted the State's motion for an extended term on count four. Then, after merging all of the other counts into count five, the judge imposed an eight-year sentence with four years of parole ineligibility. Defendant appeals. We affirm the judgment of conviction, but remand for resentencing in light of State v. Natale (Natale II), 184 N.J. 458 (2005).

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. New Brunswick police detective Christopher Plowucha received information from a confidential informant that defendant, Wallace Brown, and Lillian Brown were distributing drugs. The informant alleged that Lillian and Wallace Brown had possession of heroin and that defendant was making the sales.

On July 14, 2004, at around 4:00 p.m., Plowucha and another New Brunswick detective, Paul Schuster, conducted narcotics surveillance at 70 Remsen Avenue, a mostly residential area in the city. That location is within 1000 feet of a Montessori school and within 500 feet of the New Brunswick Fire Museum. Using binoculars, the two detectives conducted the surveillance from an undercover car and had a back-up team of five officers to conduct arrests. When surveillance began, there was a light rain.

As the detectives monitored the location, Plowucha used his binoculars and saw defendant and Lillian Brown, whom he knew from the neighborhood, walking up Remsen Avenue. He saw Brown reach into her bra and hand over to defendant what he suspected was heroin. Then he saw defendant put the suspected heroin into the front of his pants. Ms. Brown and the defendant walked towards 70 Remsen Avenue. Ms. Brown went inside the residence while defendant remained outside on the front porch.

Soon thereafter, Plowucha observed a Hispanic man approach the house. The man and defendant had a brief conversation and began to walk down Remsen Avenue, towards Townsend Street. The Hispanic man handed defendant cash, and defendant reached into his pants and pulled out what looked to be like more than one bag of heroin and handed it to the Hispanic man. As the exchange occurred, what had up to that point been drizzle turned into "torrential downpour," and the detectives terminated the surveillance.

One hour later, they resumed the surveillance from the same location. Defendant and Ms. Brown were still on the porch. Plowucha then saw Wallace Brown walk over to the house with another person, who gave defendant cash. Defendant gave this person what looked like a bag of heroin. The buyer then walked away. Mr. Brown also walked away, returning a short time later with yet another person who again gave defendant cash in exchange for what seemed to be another bag of heroin. Again, after the exchange, Mr. Brown walked away from the house.

Plowucha continued his surveillance. He saw Helen Gogos approach defendant and Ms. Brown on the porch. Defendant directed Gogos to walk towards Townsend Avenue. Ms. Brown once again reached into her bra to hand something to defendant, which Pluwocha could not see. Defendant walked over to Gogos, who handed cash to defendant. In return, he handed her heroin. Gogos placed the heroin inside of her bra.

Plowucha called his back-up unit and ordered them to arrest Gogos. The back-up unit arrested Gogos. She surrendered two bags of heroin to the officers. Plowucha, meanwhile, continued his surveillance of the house, where defendant and Lillian Brown were still on the porch. A man and a woman approached them. The same cash-for-heroin exchanged occurred. Plowucha was unable to have these buyers arrested, since the back-up unit was arresting Gogos. Another man approached defendants at the house, but defendant shook his head, which Plowucha took to mean that he had no more heroin to sell. At this point, Mr. Brown reappeared at the house. All three walked to the back of the house and out of Plowucha's view. When they re-appeared at the front of the house, he called in the back-up unit to arrest them.

On September 29, 2004, the grand jurors for Middlesex County returned a five-count indictment charging defendant, the Browns, and Gogos with drug charges arising from the July 14 incident. From April 7, 2004, to April 18, 2004, Judge Deborah J. Venezia presided over the joint trial of defendant and Wallace Brown. The jury convicted defendant on all counts as charged. Mr. Brown was convicted on only the conspiracy count. This appeal ensued.

Defendant raises the following issues on appeal:

POINT I

THE ARRESTS OF THE DEFENDANTS IN THIS MATTER WERE NOT VALID AS THEY WERE NOT SUPPORTED BY PROBABLE CAUSE, THEREFORE ANY SUBSEQUENT SEARCH OF THESE INDIVIDUALS WAS ILLEGAL AND ANY EVIDENCE OBTAINED AS A RESULT THEREFROM SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE TRIAL COURT'S FAILURE TO GIVE ADEQUATE JURY INSTRUCTIONS WITH RESPECT TO CONSTRUCTIVE POSSESSION, HOW TO EVALUATE THE STATES [SIC] PROOFS WITH RESPECT TO THE SCHOOL ZONE COUNT AND THE STANDARD USED TO EVALUATE THE EVIDENCE, DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW.

POINT III

THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED AS THE INDICTMENT WAS BASED UPON AN INVALID GRAND JURY PROCEEDING.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE BECAUSE THERE WAS NO EVIDENCE PRESENTED WHICH ESTABLISHED THAT THE DEFENDANT IN ANY WAY POSSESSED CDS, INTENDED TO DISTRIBUTE CDS OR WAS IN [SIC] INVOLVED IN A CONSPIRACY WITH WALLACE AND LILLIAN BROWN TO POSSESS CDS WITH INTENT TO DISTRIBUTE SAME.

POINT V

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR (NOT RAISED BELOW).

POINT VI

THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A NEW TRIAL AFTER THE JURY VERDICT AND TO OBJECT TO THE JURY INSTRUCTIONS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VII

THE TRIAL JUDGE'S IMPOSITION OF A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERM CONSTITUTED A VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

We will address defendant's arguments seriatim. First, defendant argues that the police lacked the probable cause required to arrest defendant because, under the circumstances, the informant was unreliable. Based on personal observations made during surveillance by the detectives themselves, the police established probable cause, which is a "well-grounded" suspicion that a crime has or is being committed. State v. Sullivan, 169 N.J. 204, 211 (2001). This standard is below that which is required to convict, but more than "naked suspicion." State v. Mark, 46 N.J. 262 (1966). The veracity of the informant did not need to be established because the police officers gained personal knowledge during the surveillance operation. Nonetheless, the police independently verified the tip through their own investigations, corroborating the "significant aspects of the informer's predictions." State v. Rodriguez, 172 N.J. 117, 127-28 (2002). Accordingly, the arrest of defendant was based on probable cause.

Second, defendant argues that the judge's failure to give certain jury charges deprived him of due process of law. As an initial matter, we note that defendant failed to object to the jury instructions or request specific charges pursuant to R. 1:8-7(a). Our Supreme Court instructs that "the failure to object to a jury instruction requires review under the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007) (citing State v. Bunch, 180 N.J. 534, 541 (2004)). See State v. Mays, 321 N.J. Super. 619, 631 (App. Div. 1999).

Defendant asserts that the judge failed to give a "mere presence" charge that constructive possession cannot be based upon mere presence at a place where contraband is located. The trial court judge did, in fact, properly instruct the jury regarding constructive possession within the "considerable degree of latitude" afforded to courts. State v. Schmidt, 110 N.J. 258, 269-70 (1988). Next, defendant argues that the judge erred by not defining "school purposes" when instructing the jury that school property must be used for school purposes in order to find a violation N.J.S.A. 2C:35-7. As conceded by defendant, Judge Venezia correctly instructed the jury that "'school property' means any property which is used for school purposes and is owned by or leased to an elementary school, secondary school or school board." Since there is nothing in the text or history of N.J.S.A. 2C:35-7 to indicate that "school purposes" requires a specialized definition, we are obligated to give words in a statute when used in a jury charge "their ordinary and common meaning." State v. Brannon, 178 N.J. 500, 510 (2004). In context, the judge properly instructed the jury by permitting them to use their understanding of the ordinary and common definition of "school purposes." Last, defendant argues that the judge impermissibly instructed the jury by charging them to use "good common sense." The Supreme Court has held that "[t]he charge must be read as a whole in determining whether there was any error." State v. Torres, 183 N.J. 554, 564 (2005). When read in conjunction with the surrounding language, it is clear that the judge was merely instructing the jury on its function in evaluating evidence. None of these instructions served to lessen the State's burden of proof. Therefore, there was no plain error. Wakefield, supra, 190 N.J. at 474-75.

Third, defendant argues that his motion to dismiss the indictment should have been granted because the indictment was based upon an invalid grand jury proceeding. Judge Venezia correctly ruled that the prosecutor's statement during her opening remarks to the grand jury, in light of Officer Plowucha's subsequent testimony, did not mislead the jury. State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 107 N.J. 635 (2001) (an indictment should be dismissed only on the clearest and plainest grounds). Furthermore, the State met its burden in presenting the grand jury with "sufficient evidence to justify the issuance of an indictment." State v. Morrison, 188 N.J. 2, 12 (2006). The State presented evidence that satisfactorily supported each element of the crime, thereby establishing a prima facie case. Ibid.

Fourth, defendant argues that his motion for judgment of acquittal was improperly denied. Viewing the State's evidence in its entirety and giving the State "the benefit of all its favorable testimony and all of the favorable inferences," we find that a reasonable jury could find guilt beyond a reasonable doubt. State v. Spivey, 179 N.J. 229, 236 (2004). The evidence, viewed in the light most favorable to the State, satisfied every element of each crime. The proofs were a combination of direct and circumstantial evidence primarily gathered during the police surveillance operation and subsequent arrests. State v. Perez, 177 N.J. 540, 549 (2003) (both direct or circumstantial evidence is viewed in the light most favorable to the State). After an exhaustive examination of the record, particularly the evidence presented by the State, we find that this argument bears no merit which requires further discussion. R. 2:11-3(e)(2).

Fifth, the defendant argues that the jury verdict was against the weight of the evidence. Again, the extensive proofs submitted by the State rebut this argument. State v. Froland, 378 N.J. Super. 20, 37 (App. Div. 2005), certif. granted, 187 N.J. 82 (2006); R. 2:11-3(e)(2).

Sixth, defendant claims that the failure of the trial counsel to move for a new trial and to object to the jury instructions amounted to ineffective assistance of counsel. To evaluate whether defendant was denied effective assistance of counsel, the court must turn to the standards set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692 (1984), and adopted by the Supreme Court of this State in State v. Fritz, 105 N.J. 42, 57 (1987). See State v. Savage, 120 N.J. 594, 612-13 (1990). In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result." 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93; see also Savage, supra, 120 N.J. at 613. To assist in this determination, the Court outlined a two-part standard based upon grounds of performance and prejudice. To satisfy this standard, a defendant carries the following burdens:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the [court's holding] resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Defendant argues that his counsel was ineffective in failing to move for a new trial or object to the jury charges discussed above. Based on our opinion that these underlying arguments are without merit, counsel's performance was not deficient. Additionally, the result of the proceeding would have been the same, regardless of any motion for a new trial or objection to the jury instructions. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Fritz, supra, 105 N.J. 42 at 52. Defendant is, therefore, unable to show counsel's performance was deficient or any prejudice, and, thus, his claim of ineffective assistance of counsel fails the Strickland analysis.

Lastly, defendant argues that the imposition of his sentence is violative of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004). Judge Venezia found no mitigating factors and aggravating factors N.J.S.A. 2C:44-1(a)(3), (6), and (9), while imposing an extended term of eight years with a four-year parole bar. The judge found that the aggravating factors "supported the imposition of the sentence

. . . beyond the presumptive term of seven years . . . ."

Natale II, decided after imposition of Gause's sentence, prohibits the use of presumptive terms in the sentencing process. Natale II, supra, 184 N.J. at 466. The Supreme Court applied this holding retroactively to cases wherein defendant raises a Blakely claim on direct appeal. Id. at 494. Therefore, defendant is entitled to resentencing "within the statutory range after identifying and weighing the applicable mitigating and aggravating factors" and without reference to the presumptive terms in N.J.S.A. 2C:44-1(f)(1). Id. at 466.

We note that the imposition of the sentence was procedurally and substantively confusing. Certain issues appear unclear from the record: what was the effect, if any, of the court's granting an extended term on count four; what was the specific authority for the parole ineligibility period; and whether N.J.S.A. 2C:43-6(f) was utilized by the court in arriving at its sentence. On remand, we anticipate that the parties may address such issues and the trial judge will then be able to make specific findings and set forth the legal basis for the sentence she imposes.

Accordingly, we affirm the judgment of conviction, but remand for resentencing in light of Natale II, supra, 184 N.J. 458. We do not retain jurisdiction.

Affirmed. Remanded for resentencing.

(continued)

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A-6627-04T4

December 17, 2007