STATE OF NEW JERSEY v. RASHAAN FURGESS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1393-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAAN FURGESS,

Defendant-Appellant.

_______________________________________________

December 8, 2009

Submitted November 9, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1963.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rashaan Furgess was convicted by a jury of nine drug related offenses. After merging various offenses, the trial court sentenced him to eight years imprisonment with three years of parole ineligibility on second-degree possession with intent to distribute cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count five), and imposed a concurrent sentence also of eight years imprisonment with three years of parole ineligibility on second-degree possession with intent to distribute heroin within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count nine). The trial court also imposed the requisite financial assessments and penalties.

A review of the record indicates the following salient facts. Detective Louis Weber testified for the State that on January 18, 2007, he and other officers of the Newark Police Department conducted surveillance of a courtyard at 205 Pennington Court. He observed defendant and codefendant Doyle Raindrop exit the building and walk into the courtyard. A woman approached defendant in the courtyard, spoke to him, and then handed him some paper currency. Defendant gave the money to Raindrop who then walked to the windowsill of apartment 1A on the first floor of 205 Pennington Court. Raindrop retrieved "unknown objects" from the windowsill and handed them to defendant. Defendant, in turn, handed the objects to the woman.

Believing that they had witnessed a drug transaction, the officers proceeded into the courtyard to make arrests. While Raindrop was immediately apprehended, defendant ran away. Weber testified that when another officer shouted that defendant had climbed into the window of the first floor apartment 1A, Weber ran into the building and apprehended defendant as he was exiting that apartment. Inside the apartment, the police found glassine envelopes of heroin and forty-three vials of cocaine in the windowsill and two rocks of cocaine on the kitchen table. They found glassine envelopes of heroin and $680 in cash on defendant's person.

The State also called a detective from the Essex County's Sheriff's Office as an expert in street level narcotics sales. The expert testified about the packaging of cocaine and heroin for street distribution, explained the purpose of stash locations, and described the manner in which street sales of cocaine and heroin are conducted. He also answered a hypothetical question that incorporated facts from the case.

The defense presented two witnesses to refute the police officer's account. One witness was the tenant who lived in apartment 1A with her three-year-old son. She testified that on the day in question, a police officer climbed through the window into her bedroom and then went to the front door and let the other officer in. She denied that anyone else had climbed through the window. She denied knowing defendant and Raindrop, and stated that she saw them for the first time that day when they were arrested.

A second witness testified that on the day in question, he spoke to Raindrop in the courtyard and then left. When he came back shortly thereafter, two police vehicles pulled into the courtyard and detained Raindrop, the witness, and others. He then saw officers go around the corner and bring back defendant who was then searched and handcuffed.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S JURY INSTRUCTIONS WERE INCOMPLETE, INADEQUATE, AND BIASED (NOT RAISED BELOW).

(A)

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON THE ISSUE OF INDENTIFICATION CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

(B)

THE TRIAL COURT'S JURY CHARGE CONCERNING THE DEFENDANT'S FAILURE TO TESTIFY WAS BIASED AND UNDERMINED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION (NOT RAISED BELOW).

(C)

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON "MERE PRESENCE" WAS PLAIN ERROR (NOT RAISED BELOW).

POINT II

DETECTIVE WEBER'S TESTIMONY THAT THE HEROIN FOUND ON THE DEFENDANT AND ON THE [WINDOWSILL] WAS "PACKAGED FOR DISTRIBUTION" CONSTITUTED PLAIN ERROR BECAUSE IT WAS AN IMPROPER PERSONAL OPINION THAT THE DEFENDANT WAS GUILTY (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S USE OF A SPECIOUS HYPOTHETICAL QUESTION BECAUSE IT PERMITTED DETECTIVE HOLLOWAY TO RENDER AN OPINION IMPROPERLY BOLSTERING THE STATE'S THEORY OF THE CASE (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL SENTENCES THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM [FIVE] YEAR TERMS.

All of the issues asserted by defendant seeking to overturn his conviction were not raised before the trial court and hence are subject to the plain error standard under Rule 2:10-2. Under this standard, a conviction will be reversed where the error was "clearly capable of producing an unjust result." R. 2:10-2. After a careful review of the record and counsel's arguments in light of the governing law, these issues are not sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the conviction.

Defendant also contends that the trial court abused its discretion when it imposed a sentence beyond the statutory minimum. Because trial judges have "wide discretion" when imposing a sentence, we give their determination of a sentence "great deference." State v. Dalziel, 182 N.J. 494, 500, 501 (2005). "Judges who exercise discretion and comply with the principles of sentencing remain free from the fear of 'second guessing.'" Id. at 501 (quoting State v. Megargel, 143 N.J. 484, 494 (1996)). We review a sentence in light of the legislative policies, sentencing guidelines, the findings of aggregate and mitigating factors, and determine whether it is "clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)).

At the sentencing, the trial court found aggravating factor three, the risk that defendant will commit another offense, aggravating factor six, defendant's prior record, which was lengthy, and aggravating factor nine, the need for deterrence. See N.J.S.A. 2C:44-1 (setting forth the aggravating and mitigating factors to be considered when imposing a sentence). In mitigation, the trial court found mitigating factor two, defendant did not contemplate that his conduct would cause or threaten serious harm, and mitigating factor eleven, that the maximum imprisonment would entail excessive hardship to defendant or his dependents. See ibid.

The trial court concluded that the aggravating factors predominated. The trial court stated the sentence "should be slightly above the midpoint, I believe, if you work down from the ten. I believe a slight discount from the higher end is the appropriate sentence" and imposed a sentence of eight years. In light of our standard of review and defendant's prior record and the other aggravating and mitigating factors as noted by the trial judge, we find no abuse of discretion in the sentence imposed.

Affirmed.