STATE OF NEW JERSEY v. MICHAEL MOBLEY

This case can also be found at 198 N.J. 317, 966 A.2d 1081.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1130-06T41130-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MOBLEY, a/k/a JAMES ROLLINS,

SHERNARD MOBLEY,

Defendant-Appellant.

____________________________________

 

Submitted September 17, 2008 - Decided:

Before Judges Stern, Rodr guez and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

05-10-1470-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated Counsel,

on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jason F. Statuto,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of seven CDS offenses. They involved two transactions on July 28, 2005 resulting in convictions for possession, possession with intent to distribute, and distribution of heroin within a school zone. After merger of the offenses, defendant was sentenced to an extended ten-year term with five years to be served before parole eligibility for distribution within a school zone and to concurrent sentences for the other school zone violations. One of the distributions was to Angela Brimley and one to Herman DeJesus who were stopped by the back-up unit and arrested. Detective Ronald Altman of the Paterson Police Department, the State's principal witness, testified that on July 28, 2005, he observed the transactions and three prior similar transactions involving defendant and co-defendant Vincent Barbarossa from the backseat of an unmarked police vehicle. He did so with the aid of binoculars.

Altman testified that he observed people come up to defendant on a street corner in Paterson. Defendant would speak into a "Nextel type of phone" or "walkie talkie" around the same time as Barbarossa, who was on the other side of the street, spoke into a similar device. Barbarossa would then walk behind a residential building and return to the street shortly thereafter, at which time he would give an object to the person who had previously spoken with defendant "in exchange for a sum of money". Barbarossa and defendant would also walk towards each other from time to time, and Barbarossa would "hand over" money to defendant. As noted, Brimley and DeJesus were stopped and arrested after each participated in such a transaction. They did not testify, nor did Detective Bailey, who Altman testified was also involved in the surveillance.

Backup or "scoop" unit officers perfected the arrests. Detective Orlando Robinson of the Paterson Police Department testified that he was to "follow the buyer to an area where it was far enough for the arrest team to take them down without the dealer seeing them." He received a detailed description of Brimley from Altman, and followed her. Robinson observed Brimley place "suspected heroin" into her nose and then toss the packet onto the ground. Robinson immediately retrieved the torn glassine envelope, and found trace amounts of heroin therein. Brimley was arrested by other members of the backup team.

Robinson also relayed Altman's description of DeJesus to other backup officers who arrested DeJesus. Envelopes containing heroin were found on his person. Defendant and Barbarossa were thereafter arrested. Behind the residence where Barbarossa walked during each transaction, police found a "stash" of envelopes with the "New Arrival" marking in red ink thereon. This marking was identical to those on the envelopes found on the ground where Brimley had been walking and on the person of DeJesus. Cash and walkie-talkies were also found on both defendant and Barbarossa. Defendant's telephone number was "stored" or programmed on Barbarossa's telephone and vice versa.

Altman further testified and defendant stipulated that the location where Altman observed defendant was within one thousand feet of school property which was being used as a school.

Barbarossa pled guilty and testified for defendant that defendant was not selling drugs with him and that he conducted a "one man operation." Barbarossa said he kept the "stash" in the basement of the house where he lived. Barbarossa further testified he sold "30 or 40" bags of heroin on July 25, 2008, but did not have a walkie-talkie that day. He further stated that he did not see defendant on July 28, until they were both arrested and in the police vehicle.

On this appeal defendant argues:

POINT I: DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF IDENTIFICATION EVEN THOUGH IDENTIFI-CATION WAS A MATERIAL, CONTESTED ISSUE IN THIS CASE. (Not Raised Below)

POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below)

POINT III: THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1, OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)

POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL EXPERT OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)

POINT V: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION. (Not Raised Below)

POINT VI: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ACCURATELY AND COMPLETELY ON THE LAW OF SCHOOL ZONE DRUG CRIMES. (Not Raised Below)

POINT VII: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTIONN AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below)

POINT VIII: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED DRUG DEALING. (Not Raised Below)

POINT IX: THE SENTENCE WAS EXCESSIVE.

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

We conclude that these arguments are clearly without merit and warrant only the following comment in a written opinion. R. 2:11-3(e)(2).

We find no "plain error" warranting reversal of the convictions because a jury instruction directed to the identification testimony was not given. See, e.g., State v. Cotto, 182 N.J. 316, 325-27 (2005); State v. Gaines, 377 N.J. Super. 612, 624-27 (App. Div.) certif. denied, 185 N.J. 264 (2005). No identification instruction was requested. Altman testified defendant was there and involved in the transactions. Barbarossa, who testified for defendant, claimed that neither defendant nor anyone else was involved in transactions, but that he was acting alone. Thus, the defendant claimed there was no second participant, not that it was someone else. Given the conflicting testimony of Altman and Barbarossa as to the existence of a second participant, this case involved a question of credibility as to defendant's participation, not of who the other participant was.

We reject defendant's "plain error" argument that Altman's testimony was inadmissible because Altman did not have personal knowledge of the events in question. See N.J.R.E. 602. The jury was aware that Altman inferred that defendant and Barbarossa spoke via walkie-talkies by virtue of what Altman observed. Similarly, the jurors knew that only one witness purported to observe the drug transactions and that defendants were arrested after Altman observed the transactions, or said he did. The jury knew from the instructions given that it had to assess Altman's credibility and to acquit defendant if Altman was not being truthful.

We find no hearsay or confrontation violation. Altman's reference to the "high drug trafficking area" where the transactions occurred did not point the finger at any individual or suggest someone had given information to the police about defendant. Altman as a trained officer merely testified as to the reason for the surveillance, and Barbarossa confirmed that "it's a drug area" where sales occurred. Altman's additional testimony concerning drug transactions generally was admissible and certainly posed no due process violation. See N.J.R.E. 701; State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).

Defendant contends that the judge's charge to the jury unconstitutionally "shifted the burden of proof to defendant to show that he disapproved or opposed drug dealing." The judge instructed the jury that

Mere presence at a scene of the perpetration of a crime does not render a person a participant in it. Proof that one is present at the scene of the commission of a crime without disapproving or opposing it is evidence from which in connection with other circumstances, it is possible for a jury to infer that he asserted thereto lend to it his countenance and approval and was thereby aiding the same.

While defendant is correct that "[t]he State must prove each and every element of the offense [by proof] beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364, [ 90 S. Ct. 1008, 1072, 25 L. Ed. 2d 368, 379] (1970)," the judge did not instruct otherwise. To the contrary, the judge emphasized the State's burden of proof on "each element" by proof "beyond a reasonable doubt" that the "burden never shifts," and that defendant had no "obligation or duty to prove his innocence." Moreover, the above quoted portion of the charge must be considered in context. It came after the following instruction:

Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him a participant in a crime. It is, however, a circumstance to be considered with other evidence in determining whether he was present as an accomplice.

Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt, there must exist a community of purpose in actual participation in a crime committed.

In the context of the charge as a whole, there was no plain error. See State v. Madden, 61 N.J. 377, 397-98 (1972); R. 2:10-2.

 
Given defendant's record, including a prior school zone violation, there is no basis on which we can disturb the extended term sentence imposed. See State v. Thomas, 188 N.J. 137, 149 (2006); N.J.S.A. 2C:43-6f.

The judgment is affirmed.

We are advised that Brimley and DeJesus entered guilty pleas. Other purchasers were not arrested because the backup unit was not yet in place for the first fifteen minutes or so.

The stipulations included that the map introduced into evidence "accurately depicts ... the 1000 foot radius surrounding Public School Number Four" and that "Public School Number Four was owned and operated by [the] Paterson Board of Education for educational purposes on July 28th of 2005." As a result the failure to charge that the school was used for school purposes was harmless.

Although not qualified as an expert, Altman had been a Paterson police officer for fourteen years and been involved in over three thousand narcotics investigations.

(continued)

(continued)

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A-1130-06T4

December 31, 2008