STATE OF NEW JERSEY v. MICHAEL NELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2406-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL NELSON aka MICHAEL ALEXANDER

NELSON,

Defendant-Appellant.

______________________________________

December 15, 2010

 

Submitted October 5, 2010 - Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law

Division, Union County, Indictment No. 07-04-0340.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Meredith L. Balo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of attempted possession with intent to distribute a controlled dangerous substance, five pounds or more of marijuana, a crime of the second degree, N.J.S.A. 2C:5-1, 35-5b(10), and attempted possession with intent to distribute that marijuana within five hundred feet of a public facility, a crime of the second degree, N.J.S.A. 2C:5-1, 35-7.1. The same jury found defendant not guilty of possession of one ounce or more of marijuana with the intent to distribute it and not guilty of one ounce or more of marijuana with the intent to distribute it within five hundred feet of a public facility. The trial court sentenced defendant to two concurrent five-year terms. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand this matter to amend the judgment of conviction.

On November 16, 2006, a package was delivered to the Sears Auto Center on Route 22 in Union. The package smelled strongly of ammonia and was addressed to someone who did not work at the store. Ralph Horowitz, the employee in charge of the store on that day, took the package into the office, opened it and found three tightly wrapped bags. He opened one of the bags and found marijuana and he immediately called the police.

Detective Kevin Kalendek of the Union Police Department, driving an unmarked vehicle and dressed in civilian clothes, responded to the store. He was accompanied by Detective Sickinger. By the time the officers arrived, at approximately 6:30 p.m., Horowitz had realized that the package was addressed to an individual who had worked at the store but no longer did so. The officers examined the package and determined it contained more than twenty pounds of marijuana. Kalendek alerted his lieutenant as well as the Union County Narcotics Strike Force of his discovery.

He removed the three bags of marijuana and replaced them with rolls of packing tape, seeking to approximate the original weight of the box. He then closed the package and placed it in the warehouse with the remainder of the packages that had been delivered that day. Kalendek selected a surveillance point in the store and Sickinger selected one outside the store. They had, by that time, been joined by a number of other officers who took up surveillance locations.

The store closed for business at 8:00 p.m., and all employees other than Horowitz departed. At approximately 8:30 p.m., a black Honda Accord pulled into the store's parking lot and drove through it. An individual, talking on a cell phone, got out of the car and peered into the front windows of the Sears store. Horowitz came out and asked if he needed anything but the man motioned him away. Horowitz then went to his car, opened the bay doors to the shop and pulled his car into the warehouse. The man approached and handed Horowitz the cell phone; the person on the other end of the line was a part-time employee of the Sears store, Alfredo Rodriguez. After speaking to Rodriguez, Horowitz let the man take the package which had earlier been delivered.1 The man placed the package into the back seat of his car; before he could drive off, he was surrounded by the police who had been on the scene. He was placed in handcuffs and advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At trial, defendant was identified as the person who came to pick up this package.

When the police removed the package from the rear seat of the car, they detected a strong odor of marijuana coming from within the car. The marijuana that had previously been removed from the box had been wrapped and pressure-taped to conceal the odor. Detective Kalendek believed that the odor in the car was not caused by the marijuana that had been shipped in the box but had a different source, and the police began to search the car. On opening the trunk, the odor became even more pronounced.

Kalendek was speaking to defendant while the search was in progress, and defendant told him that he had been scheduled to meet another individual in a nearby parking lot who was to give him $300 for handing over the package. Hearing that another individual was involved, Kalendek directed that the search of the vehicle at the scene be suspended, and he ordered it towed to police headquarters, where the search resumed. Ultimately, a smaller quantity of marijuana was found concealed in the vehicle's trunk by its rear left tail light.

The vehicle itself was registered in the name of defendant's wife. She testified at trial that she regularly drove the car, as did the couple's son and daughter.

Kalendek continued to speak to defendant at police headquarters, telling him he faced serious charges since the box contained drugs worth $100,000. Initially, defendant told Kalendek that he did not know what was in the box. Later, he said that the box did not contain $100,000 worth of marijuana because it had been too light. Kalendak had not previously mentioned marijuana to defendant; he had only used the non-specific term "drugs." Kalendek said that defendant continued and told him that he had in the past had marijuana worth $100,000 delivered to the same store and had been arrested. He told Kalendek that he had been found not guilty at trial when he said he hadn't known what was in the box. He assured Kalendek that he would "beat this one," just as he had the earlier charge. Defendant's prediction proved only partially correct; he was found guilty with respect to the marijuana delivered to the store but not guilty with respect to the marijuana secreted in the car.

On appeal, defendant raises the following contentions:

POINT I 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 TRIAL COURT'S ERRONEOUS AND CONFUSING INSTRUCTION ON THE LAW OF ATTEMPT TO POSSESS MARIJUANA WITH THE INTENT TO DISTRIBUTE

(Partially Raised Below)

 

A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON SUBSECTION (1) ATTEMPT, PRECLUDING THE JURY FROM CONSIDERING THE DEFENSE OF IMPOSSIBILITY, WAS ERRONEOUS AND PREJUDICIAL

 

B. THE TRIAL COURT'S INSTRUCTIONS ON THE LAW OF ATTEMPT TO POSSESS MARIJUANA WITH THE INTENT TO ATTEMPT DISTRIBUTION WERE AMBIGUOUS AND CONFUSING

(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 WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED

(Not Raised Below)

 

POINT III 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 IMPROPER ADMISSION OF OTHER CRIME EVIDENCE

 

POINT IV THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH OF AN IMPOUNDED VEHICLE AT POLICE HEADQUARTERS WITHOUT EXIGENT CIRCUMSTANCES

 

POINT V THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED

 

POINT VI THE CONVICTIONS ON COUNTS ONE AND THREE SHOULD HAVE BEEN MERGED

 

I

Pursuant to N.J.S.A. 2C:5-1a,

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
 
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
 
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
 
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

 

At trial, the court ruled that it would instruct the jury with respect to subsection (1) of the statute, but not subsections (2) and (3). There was no objection to the charge that the trial court gave to the jury; indeed, not only was there no objection to the court's instructions, but defense counsel told the trial court that it did an "admirable job, it was fair, unbiased."

Defendant must thus show that the charge as given constituted plain error. R. 2:10-2. Plain error has been described as a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (citation omitted).

"[C]lear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994) (citations omitted). Jury instructions constitute "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).

Defendant's primary contention that the trial court's charge constituted plain error rests upon his assertion that he could not have been guilty of attempted possession of marijuana because the box did not contain marijuana at the time it came into his custody. He argues on appeal that the trial court should have given the jury an instruction on the defense of impossibility. He points to State v. Condon, 391 N.J. Super. 609 (App. Div.), certif. denied, 192 N.J. 74 (2007), to support his position. The defendant in that case engaged in a series of graphic internet conversations with an investigator working with the Federal Bureau of Investigation's Child Exploitation Task Force who pretended to be a thirteen-year-old girl. Id. at 612-13. The defendant arranged to meet the "girl," having told "her" they would engage in sexual intercourse. Id. at 613. When he arrived at the site, he was arrested. At trial, he was convicted of attempted sexual assault. Id. at 613-14. Defendant argued on appeal he could not be guilty because the thirteen-year-old girl was fictional, not real. We rejected that contention, as we also did in the recent case of State v. Kuhn, 415 N.J. Super. 89 (App. Div. 2010).

We noted in Condon that the defendant could be found guilty under subsection (3) of the attempt statute, which refers to "an act or omission constituting a substantial step in a course of conduct planned to culminate in [the] commission of the crime." He could not, however, be found guilty under subsection (1). Condon, supra, at 617. Because the trial court had charged the jury with respect to both subsections, and the verdict sheet did not distinguish between the two, it was necessary to reverse his conviction and remand for a new trial. Id. at 617-18.

Cannel, in his commentary to this section of the criminal code, notes the distinction between these subsections of the attempt statute. Subsection (1), he notes, "applies where the defendant has done everything that would have constituted the crime if the circumstances were as a reasonable person would have thought them to be." Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:5-1 (2010). Under subsection (3), on the other hand, "a person can be convicted of attempt . . . even though the crime itself could never have been completed." Id. at comment 6.

Thus, the defendant in Condon could not be guilty under subsection (1) because the charged act was never completed, but he could be guilty under subsection (3) because he had taken a "substantial step" toward commission of the crime. Here, on the other hand, the crime of attempted possession of a controlled dangerous substance was complete when defendant took possession of the package; no further steps on his part were necessary. The trial court's decision to charge the jury with subsection (1) of the statute was correct.

We also reject defendant's second complaint with respect to the court's charge, which is, again, raised for the first time on appeal. Focusing on three lines of transcript, he complains that the trial court instructed the jury that defendant was charged with attempted possession with intent to distribute a controlled dangerous substance and then defined "distribution" to include "attempted distribution." This, defendant contends, amounted to an instruction on attempted possession with intent to attempt distribution, a concept he describes as prejudicially confusing and misleading.

It is well-settled, however, that a trial court's charge is to be read as a whole. State v. Martini, 187 N.J. 469, 477 (2006) (citation omitted). If, read as a whole, the court's charge is a correct statement of the law, set forth in a manner that is understandable to the jury, there is no reversible error.

Here, the trial court set forth for the jury the applicable principles for the law of attempt. Because defendant was charged with attempted possession with intent to distribute, it was also necessary for the trial court to explain to the jury the elements of the crime of possession of a controlled dangerous substance with the intent to distribute it. N.J.S.A. 2C:35-5. This, in turn, required a definition for the jury of the term "distribute." To supply this definition, the trial court correctly used the model jury charge, which includes the phrase "attempted distribution," leading to defendant's present complaint. Reviewing this charge, and the sequence with which it unfolded, we can perceive no realistic basis upon which to conclude that the charge was confusing or prejudicial.

II

Defendant's next argument focuses on one portion of Detective Kalendek's testimony at trial. As we noted earlier, defendant told Kalendek that he was to meet another individual in a nearby parking lot, deliver the box and receive $300 for his efforts. Kalendek set up surveillance at that location, hoping to apprehend this other person. After waiting a brief period of time, he ended that effort. Kalendek described this in the following manner, saying he "tried to verify [defendant's] story. After a few moments, though, it felt like, you know, I didn't believe him anymore. I thought he was lying to me."

Although defendant made no objection at the time, he now argues that this statement was so improper and prejudicial, that his convictions should be reversed. While we concur that the statement was improper and should not have been made, we decline to reverse defendant's convictions on that basis. "[C]redibility is an issue which is peculiarly within the jury's ken and with respect to which ordinarily jurors require no expert assistance." State v. Frisby, 174 N.J. 583, 595 (2002) (citation omitted). It is thus improper for one witness to express an opinion as to the credibility of what he or she has been told. Such a statement is not, however, a mandate for reversal. State v. Kemp, 195 N.J. 136 (2008).

Here, the State did not solicit the comment nor subsequently refer to it in any manner. Defendant made no objection when it was made, thus indicating he perceived no prejudice. We cannot conclude that this fleeting remark led this jury to a result it would otherwise not have reached. R. 2:10-2.

III

We earlier noted defendant's statement to Detective Kalendek that he had faced similar charges several years earlier and had "beaten" them. Detective Kalendek was permitted to recount that conversation to the jury; defendant now claims that this constituted improper use of "other crimes" evidence under N.J.R.E. 404(b).2

We reject the manner in which defendant has constructed this argument. His statements to Kalendek were clearly admissible under N.J.R.E. 803(b)(1), and the trial court gave clear, correct instructions to the jury with respect to how it should analyze and weigh this testimony. State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).

IV

Defendant's next argument focuses on the search of the automobile that was started at the scene when the officers detected the odor of marijuana and continued after the vehicle was towed to police headquarters. The result of that search was the discovery of a small quantity of marijuana hidden in the trunk. The trial court denied defendant's pre-trial motion to suppress, finding probable cause and exigent circumstances.

We do not find it necessary to trace the evolution of cases analyzing automobile searches. Defendant was acquitted of all the charges relating to this smaller quantity of marijuana and thus suffered no prejudice.

V

Defendant presents two remaining arguments. The first, that the trial court should have granted his motion for acquittal, lacks sufficient merit to warrant discussion in a written opinion. State v. Reyes, 50 N.J. 454 (1967); R. 2:11-3(e)(2).

The State concurs with his second contention, that his convictions under count one for attempted possession of a controlled dangerous substance with intent to distribute and count three for attempted possession of a controlled dangerous substance with intent to distribute within five hundred feet of a public facility, should merge. We thus remand this matter to the trial court for entry of an amended judgment of conviction. In all other respects, defendant's convictions are affirmed.

Defendant's convictions are affirmed; the matter is remanded to the trial court for entry of an amended judgment of conviction.

1 At the motion to suppress, there was testimony that Rodriguez told Horowitz to give the package to the waiting man. The trial court struck that hearsay testimony at the trial, telling the jury it must disregard that testimony in its deliberations.

2 The trial court ruled earlier that the State would not be permitted to introduce direct evidence of the earlier charges.