STATE OF NEW JERSEY v. CARL DALEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4675-05T44675-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL DALEY,

Defendant-Appellant.

________________________________

 

Submitted: October 8, 2008 - Decided:

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-08-0993-I.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carl Daley appeals from his conviction for possession of controlled dangerous substances (CDS), weapons offenses and eluding. Additionally, defendant asserts the sentence imposed was excessive. More specifically, on appeal defendant presents these arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT EXPERT TESTIMONY WITHOUT QUALIFYING THE WITNESSES AND WITHOUT PROVIDING EXPERT REPORTS.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.

POINT III

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.

POINT IV

THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE TRIAL, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE CONVICTIONS MUST, THEREFORE BE REVERSED.

POINT V

THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE IMPOSITION OF THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.

POINT VI

THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.

We affirm defendant's conviction and remand for re-sentencing.

I

Trial testimony revealed these facts. On January 9, 2002, a confidential informant (CI) contacted Detectives Ronald Altmann and Troy Bailey of the Paterson Police Department and reported a Jamaican man named "Carl" would be leaving his first floor apartment at 354 East 27th Street around 2:00 p.m. to make deliveries of marijuana. The informant described Carl as 5'8" with a dark complexion, and approximately thirty-five to forty years old. The CI said Carl would be driving either a red Chevy Beretta or a gold Nissan Maxima.

Altmann showed the CI defendant's photograph and the CI confirmed defendant was the person who would be making the marijuana deliveries. A utilities check revealed defendant resided on the first floor apartment at 354 East 27th Street. At approximately 1:30 p.m., Bailey set up a surveillance at that address.

Bailey observed a gold Nissan Maxima parked in front of the residence. Shortly before 2 p.m., Bailey observed a red Chevy Beretta pull up and park in front of the Maxima. Defendant, who matched the physical description given by the CI, exited the Beretta, placed a black bag into the trunk of the Maxima, and entered the first floor apartment at 354 East 27th Street. At 2:05 p.m., defendant exited the apartment and stood on the porch looking up and down the street. Bailey observed a large bulge around defendant's waistband. While looking around, defendant walked slowly toward, then entered the Beretta. Bailey advised the backup team to move in.

Altmann, along with the back-up team of plain-clothed detectives, Ivette Otero, Marvin Sykes, and Robert Challice, arrived in an undercover van. Defendant was sitting in the car with the engine running. The detectives stopped diagonally in front of the Beretta, blocking its path. Altmann, Challice, and Otero exited the van, with their police badges displayed on chains around their necks. They yelled "police," and told defendant to shut off the car.

Altmann approached the driver's side of the vehicle and saw defendant behind the wheel. On the front passenger seat, Altmann also saw several brick-shaped, greenish brown objects tightly wrapped in clear plastic, which he suspected to be marijuana. Neither Challice nor Otero saw anything on the front passenger seat.

Defendant placed the car in reverse, then drove forward onto the sidewalk to veer around the undercover van. Altmann grabbed the door handle and unsuccessfully tried to open the door. Otero and Challice jumped to avoid being hit; Challice smashed the driver's side car window with a baton, shattering the glass as the vehicle sped away. Altmann, Otero, and Sykes followed in pursuit. The detectives lost sight of the vehicle.

Some minutes later, the Beretta was found abandoned five blocks from defendant's residence. Bailey testified he recovered approximately eighteen grams of marijuana from the vehicle. The glove compartment contained several cable television and utilities bills addressed to defendant. The "bricks" of marijuana Altmann observed were no longer in the vehicle. A search of the area to locate defendant proved unsuccessful.

Challice remained to secure defendant's apartment. After entering the common hallway on the first floor, he forcibly entered the apartment with his weapon drawn. He testified he observed a clear plastic bag of suspected marijuana on the bed in the front bedroom and noticed some paperwork bearing defendant's name and address on a bedroom dresser. He did not disturb or retrieve the drugs or the paperwork. Challice searched the passenger compartment of the Maxima and looked into the black bag on the back seat, which contained clothing.

A search warrant was issued at 4 p.m. While searching the first floor apartment, Detective Virginio Formentin, a member of the back-up team, recovered "a brick like chunk" of marijuana, weighing 15.7 ounces inside a cooler in the front bedroom, and approximately thirteen ounces of marijuana in a plastic bag found on the bed. Formentin testified the marijuana seized had a street value of $1,000 to $1,500 per pound.

In a dresser in the front bedroom, Altmann found several documents bearing defendant's name, including a birth certificate, passport, resident alien card, and a Sprint PCS bill. Also found were several Western Union transfer receipts, showing a transfer of cash to a Los Angeles, California, location; a certificate of title for the Beretta, in the name of Enrique Santana; a certificate of title for the Maxima, in the name of Carl C. Daley; and a rent receipt book with receipts written to "R. Daley."

Sergeant Kevin Brady, another back-up team officer, recovered a digital scale, latex gloves, and eight boxes of assorted plastic bags from a nightstand in the bedroom. In a closet near the kitchen, Brady found a Cobray Mac 11 machine pistol, later determined to be operative, and a thirty-round capacity magazine.

While standing in the first floor hallway, Otero detected a strong odor of marijuana emanating from the basement. She walked down the basement stairs and immediately observed a large package wrapped in newspaper, paper towels, and clear plastic wrap. The newspaper-wrapped package was in front of several "[h]umongous speakers" and other "D.J. equipment." Otero noticed "a green vegetation substance" through an opening in the top of the package. She suspected the package contained marijuana, and it was later confirmed the package held almost nineteen pounds of marijuana. Otero took the evidence upstairs to show Bailey.

Also in the basement was a pillowcase, containing a handgun and four nine-millimeter rounds, which were recovered about four to five feet from the marijuana. A subsequent test of the handgun revealed it was in working order. The search warrant did not include the basement. Police had no information defendant used or occupied the basement.

Defendant and Diana Jones, his live-in girlfriend, offered testimony. Jones stated on the date of the incident, defendant returned from shopping to drive her to work. Defendant went outside to warm up the car while Jones finished watching a television show. Jones heard yelling outside and saw someone break the window of the Beretta; she thought defendant was being carjacked. Jones grabbed her coat and pocketbook and ran outside "to see what's going on." By the time she went outside, defendant and the people who broke the car window were gone. Jones saw a tall Caucasian man, whom she believed wore a police badge, running up the steps to the front of the apartment. Jones did not speak with the officer. Although she thought defendant was carjacked, Jones did not call the police because she was not "think[ing] straight." Jones also did not attempt to call defendant's cell phone.

Jones, who had been living in the apartment for three weeks, never saw marijuana or guns. Also, she never saw baggies, rubber gloves, or the digital scale retrieved by police. Jones acknowledged she never went into the basement.

Defendant testified on his own behalf. He explained that he, Jones and his brother, Rudy R. Daley, lived in the first floor apartment at 354 East 27th Street. On the afternoon of January 9, 2002, defendant was approached by a person he knew as "Bamboo." Bamboo asked defendant to get him a pound of good "weed" because he had purchased garbage from another. Defendant told Bamboo he could not help him because he "d[id]n't do that no more." Nevertheless, because "[Bamboo] just d[id]n't want to take no for an answer," defendant agreed to see if he could get Bamboo marijuana.

Defendant returned to his apartment to drive his girlfriend to work. While he was warming up the car, someone knocked on his window and shouted. Before defendant could look up, his driver side window was shattered. He saw several strangers standing next to the Beretta and thought he was being carjacked. Defendant stated the strangers did not identify themselves as police officers and were not wearing badges. Defendant sped away.

After traveling a few blocks, defendant drove to a dead-end street and abandoned the car because he was frightened and did not know whether he was being chased. Defendant did not return to his apartment but walked to Santana's auto body shop, where he worked. Defendant wanted to tell Santana what had happened to the Beretta. Santana was aware of the incident because he was listening to a police scanner. Defendant then called his attorney, who arranged for defendant to turn himself into the police the following morning.

Defendant denied possessing or seeing the marijuana, guns, baggies, gloves, or digital scale introduced by the State. He believed the items were not recovered from his apartment, but rather the seven police officers "just lie[d] that they found it there." With regard to the marijuana allegedly recovered from the Beretta, defendant guessed it belonged to Bamboo, who must have left it when he was with defendant earlier that day. Defendant believed Bamboo was the police CI and that he intentionally planted the marijuana in defendant's car. Bamboo died prior to trial.

Defendant stated he had no knowledge of the speakers and musical equipment in the basement, testifying, "I don't do nothing with music." Defendant also stated he had past dealings with Detective Bailey. Defendant asserted the FBI was investigating a complaint that Bailey stole $6,500 from his brother.

The jury convicted defendant of fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count one), third-degree unlawful possession of an assault firearm/handgun, N.J.S.A. 2C:39-5(b) (count three), second-degree possession of an assault firearm/handgun while committing a CDS offense, N.J.S.A. 2C:39-4.1 (count six), and second-degree eluding, N.J.S.A. 2C:29-2(b) (count nine). Immediately following the rendered verdict, the court held a bifurcated trial on the last charge of the indictment, second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count ten). The jury also convicted defendant on that count. The State moved for imposition of an extended-term sentence, asserting defendant was a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). The court granted the motion.

On March 31, 2006, defendant was sentenced. The court merged count three into count ten and imposed a discretionary extended term of fifteen years on count ten, with a seven and one-half year period of parole ineligibility, a concurrent five-year terms on counts six and nine, and a concurrent eighteen-month term on count one, all concurrent to the sentence on count ten.

II

Defendant raises arguments challenging: discretionary trial rulings (points I and IV); the denial of his motion for acquittal and a new trial (points II and III); and the sentence imposed (points V and VI). Grouping the issues in these categories, we begin their review.

A

Trial Discretion

First, defendant argues the trial court erred in allowing (1) Altman to offer his opinion that the brick-like packages he saw in defendant's car were marijuana, and (2) Formentin to state the estimated street value of the illegal drugs recovered, because neither had been qualified to provide expert testimony. We reject these contentions.

Both Altmann and Formentin were qualified as experts at the suppression hearing. During trial, the court overruled the defense's objection and again qualified Altmann as an expert to state his belief that the objects were bricks of marijuana concluding, "at the suppression hearing, I weighed his qualifications and . . . he was cross examined at that time. And the defense has had the transcript[, and defendant has] the same defense counselor that participated in the suppression motion."

Formentin too had been qualified as an expert at the suppression hearing. At trial, Formentin was qualified as an expert, subject to the State producing his resume and the defense's right to cross-examine him on his qualifications.

Substantial deference is accorded to a trial court's determination of whether to qualify a proposed expert and will only be reversed for "manifest error and injustice." State v. Jenewicz, 193 N.J. 440, 455 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). Our review reveals no abuse of discretion occurred. Altmann was employed with the Paterson Police Department for twelve and one-half years, during six of which he was a narcotics division detective, involved in over 2000 drug investigations. Formentin had been employed with the Paterson Police Department for seventeen years, thirteen of which he served as a narcotics division detective. The experience and training of these officers satisfactorily qualified them as experts to provide the limited testimony that identified the objects Altman saw in the Beretta as marijuana and the estimated street value of a pound of marijuana offered by Formentin. N.J.R.E. 702; In re Yaccarino, 117 N.J. 175, 196 (1989); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

Also, we are unpersuaded by defendant's related challenge that the experts failed to submit a pre-trial report. Transcripts from the suppression hearing were provided to defendant. The detectives' testimony remained consistent with the testimony presented at the hearing. We find no violation of Rule 3:13-3(c)(9), and reject defendant's claim of prejudice. State v. Russo, 243 N.J. Super. 383, 408-09 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991).

Defendant asserts prosecutorial misconduct warrants a new trial. Specifically, during defendant's cross-examination, the prosecutor held up the assault firearm recovered from defendant's residence and stated "Bamboo . . . is now dead." The context of the statement requires us to set forth the immediately preceding examination.

[PROSECUTOR:] Have you ever seen this assault firearm?

[Defendant:] No.

Q. Do you know what this is attached to it?

A. No.

Q. You don't know that this is a magazine?

A. No.

Q. Or that bullets belong in this gun?

A. I'm not familiar with guns.

Q. So it's your testimony, all you're doing that day is trying to drive your girlfriend to work. Somebody named Bamboo, who by the way is now dead, correct- -

[DEFENSE COUNSEL]: Objection.

Q. - - so he can't confirm or deny this.

[DEFENSE COUNSEL]: Objection.

In the side-bar that followed, defense counsel asserted it was inflammatory to inquire about Bamboo's death while holding the automatic weapon because it inferred defendant was connected to Bamboo's death. The prosecutor adamantly denied any such intention of inferences was designed or demonstrated. The prosecutor restated his intention was to point out Bamboo could neither confirm nor deny defendant's version of events because he was dead. The trial judge instructed the prosecutor to ask defendant whether he knew Bamboo had died. Defendant's reply to the question showed he had no personal knowledge of Bamboo's death and the subject inquiry ended there.

During this questioning, the prosecutor showed each item of evidence to defendant, cross-examining him on his knowledge of the items. She inquired about the baggies, the scale, the weapons and the ammunition. The objectionable question started to recap defendant's testimony. The reference to Bamboo's death was followed by, "so he can't confirm or deny this." We disagree with the premise that the State's questioning implied suspicious circumstances surrounding Bamboo's death. No such inference can be drawn from the record. Further, defendant was asked if he was aware of Bamboo's death. His denial of that knowledge militated against the theory now ascribed to the prosecutor, that it was defendant who caused Bamboo's death.

We find the action now challenged did not "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Moreover, when reviewed in the context of the State's questioning, we conclude the conduct did not demonstrate misconduct. State v. Frost, 158 N.J. 76, 83 (1999).

B

Denial of Acquittal Motion and Challenge to the Sufficiency of the Evidence Supporting the Verdict

Next, defendant argues the trial court erred in denying his motion for acquittal at the close of the State's case, Rule 3:18-1, as the State failed to present sufficient evidence to convict because "there was no direct evidence definitively linking [defendant] to any of the items seized." For the same reason, defendant argues the jury's verdicts were against the weight of the "credible and admissible evidence" necessitating reversal. We find these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

When considering defendant's motion for acquittal, the trial court reviewed the specific evidence supporting each count of the indictment. The judge denied defendant's motion after concluding sufficient evidence existed to warrant a conviction on all the counts involved. Giving the State the benefit of all favorable inferences, as required, State v. Reyes, 50 N.J. 454, 459 (1967), we concur with the judge's analysis and find the record contains sufficient evidence to "enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crime or crimes charged." State v. Perez, 177 N.J. 540, 549 (2003).

Defendant's failure to request a new trial bars our consideration of his newly presented argument, that the weight of the evidence does not support the verdict. R. 2:10-1.

C

Sentencing Challenges

Although we reject the arguments advanced by defendant seeking reversal of his conviction, we grant remand, without objection from the State, for reconsideration of the appropriate sentence within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range, as required by State v. Pierce, 188 N.J. 155, 168-69 (2006).

The factual record contained, and the judge found, the grounds necessary to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The court's review of defendant's criminal record revealed five prior indictable convictions--all drug related felonies. While the court properly exercised its discretion to impose a discretionary extended term, defendant's sentence must be vacated and the matter remanded for re-sentencing to properly consider the full sentencing range available to defendant. Pierce, supra, 188 N.J. at 168-69.

The extended term for a second-degree crime is between ten and twenty years, N.J.S.A. 2C:43-7(a)(3). Thus, the appropriate sentencing range available to the sentencing court was the bottom of the original second-degree sentencing range, five years, N.J.S.A. 2C:43-6(a)(2), to the top of the extended second-degree sentencing range, twenty years, N.J.S.A. 2C:43-7(a)(3). Because the court sentenced defendant to an extended term as a persistent offender before Pierce was decided, it proceeded on the assumption the applicable sentencing range was ten to twenty years, rather than five to twenty years, thereby failing to consider the full range of a possible sentence. 188 N.J. at 168-69. Accordingly, defendant is entitled to a new sentencing hearing.

In light of the decision to remand for re-sentencing, it is inappropriate to consider defendant's claim that his sentence was excessive.

Affirmed in part, remanded for re-sentencing.

Defendant was acquitted of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1), third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f), second-degree possession of a handgun and/or an assault firearm for unlawful purpose, N.J.S.A. 2C:39-4(a), fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a).

(continued)

(continued)

18

A-4675-05T4

December 17, 2008