STATE OF NEW JERSEY v. KEVIN CAREY, a/k/a KEVIN M. CAREY KEVIN MARK CAREY, KEVIN ODOM KEVIN OMON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3751-07T43751-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN CAREY, a/k/a KEVIN M. CAREY,

KEVIN MARK CAREY, KEVIN ODOM,

KEVIN OMON,

Defendant-Appellant.

_________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Waugh and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1251.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Carey appeals his conviction for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution and/or possession with intent to distribute CDS, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3); and third-degree distribution and/or possession with intent to distribute CDS within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7, as well as the resulting six year sentence, during three of which he would not be eligible for parole. We affirm.

I.

We discern the following factual and procedural history from the record.

In February 2007, Camden Police Sergeant Dan Morris, who had been a police officer for twenty-two years, was assigned to the Anti-Crime Supplemental Patrol Unit, focusing on South Camden where there were "high incidents of homicides and gun violence." During his tenure with the Camden Police, Morris had "participated in over thousands" of narcotics arrests and had "personally made hundreds" himself. Morris had the opportunity to observe street-level drug transactions and seize narcotics, and was also familiar with different types of narcotics and their packaging.

Sergeant Walter Arthur had been a Camden Police Officer for twenty years. In February 2007, he was assigned to the City Supplemental Unit, which focuses on "street-level drug traffickers, violent offender [and] high-visibility saturated patrols." Arthur had been involved in drug-related investigations, narcotics arrests, had observed street-level drug transactions, and was familiar with different types of narcotics.

On February 7, 2007, at approximately 11:30 p.m., Morris and Arthur were patrolling the area of Whitman Park, known as 403 sector, in a marked patrol car and in uniform. Arthur characterized 403 sector as "possibly the worst area in the city . . . notorious for street-level drug trafficking crimes, homicides, quality of life violations[,] . . . pretty much [an] open air [drug market]." He described nearby Newport and Thurman Streets as "notorious for street-level drug trafficking and crime."

Morris testified that he "received a radio transmission via [the] main radio channel that there was a report of shots fired, gunshots fired, . . . on Newport and Thurman." After receiving the transmission, Morris and Arthur, who were within a few blocks of Newport and Thurman Streets, headed to the area, arriving within approximately one minute. According to Morris, they were "[l]istening for gunshots, watching, watching people, watching their hands, . . . using a safe approach." Arthur testified that he "[h]eard several gunshots coming from the vicinity . . . ."

As they approached, Morris and Arthur observed two people approximately ten to fifteen feet away on the corner of Newport and Thurman Streets. They were the only people in the area. Morris was able to observe both individuals clearly as he exited the patrol car. He testified that the lighting in the area was "adequate" at the time. According to Morris:

We approached, kept a little distance, watched their hands, you know. It's a dangerous . . . kind of call that you're dealing with. We approached the guys, you know, to find out what was going on, . . . why were they there, pat down their persons to check for our safety and theirs if there [were] any weapons present.

As Morris was getting out of the patrol car, he observed "[Carey] take a small plastic bag and try to put it to the side; like, discard it from his person." He further testified that Carey "tossed" the plastic bag. Arthur testified that Carey "discarded a clear plastic bag, attempted to walk away quickly, along with another male that was there also."

After making his observations, Morris instructed Arthur and the back-up officers that the two men, including Carey, needed to be secured and patted down. Arthur retrieved the discarded plastic bag, which was a sandwich bag containing seventy-six small plastic heat-sealed bags. Each of the smaller bags contained a small rock-like substance, which was later determined to be cocaine. The plastic sandwich bag was found "at the feet of the defendant." Arthur also found $95 in cash when he searched Carey. At trial, Morris used a map of Camden to demonstrate that the area of Carey's arrest, the intersection of Newport and Thurman Streets, was within 1000 feet of a functioning school property.

Carey was indicted on April 12, 2007. The trial started on November 26, 2007. Morris and Arthur testified to the facts outlined above.

Investigator Matthew McKeown of the Camden County Prosecutor's Office was "qualified as an expert in the field of drug distribution and street-level sales, including how drugs are packaged, priced and distributed." McKeown testified:

Typically . . . with street-level sales, drugs are packaged in small quantities, nothing large, something that could be easily concealed or taken so it's not obvious, especially to police. Usually most drugs are packaged in some form of plastic bag, about an inch . . . but something so small that if you shut your hand around it you can't see it. Usually the bags are going to be colored in some way . . . .

McKeown testified that the seventy-six heat-sealed bags recovered at the time of Carey's arrest were consistent with street-level packaging, given the size of each bag, the quantity of narcotic, and the tint on the bags. McKeown also testified that "ninety percent of the time the street-level CDS is carried in a simple sandwich bag." He differentiated between the number of bags characteristically found on a personal user and the number of bags characteristically found on a seller of narcotics. He testified that a personal user of narcotics would possess between two and four bags; whereas, a dealer would possess "anything over ten or fifteen" bags. McKeown opined that the seventy-six bags recovered at the scene were intended "for distribution based on the number and the way they're packaged."

On November 29, 2007, the jury found Carey guilty on all counts. On February 22, 2008, the trial judge sentenced Carey to a six-year term of incarceration, of which three years to be served without eligibility for parole. Counts one and two were merged with count three.

This appeal followed.

II.

On appeal, Carey raises the following issues:

POINT I: 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 BY THE ERRONEOUS AND PREJUDICIAL ARGUMENT AND INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION (Not Raised Below).

POINT II: THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, 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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED WHEN THE STATE PRODUCED EVIDENCE THAT ANONYMOUS SOURCES COMPLAINED OF DRUG DEALING IN THE SAME AREA WHERE THE DEFENDANT WAS LOCATED (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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT PERMITTED THE STATE'S EXPERT WITNESS TO ALSO BE A FACT WITNESS WITHOUT PROPER INSTRUCTIONS TO THE JURY (Not Raised Below).

POINT IV: THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

A.

We turn first to the alleged trial errors, none of which were raised during the trial.

Pursuant to Rule 2:10-2:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

"Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). We review Carey's arguments according to that standard.

i.

Carey argues that his constitutional rights were violated and that he was prejudiced by testimony from Morris and Arthur that they had received numerous complaints about drug activity at the location of his arrest. We disagree because none of the testimony related, directly or indirectly, to assertions by the anonymous individuals that Carey had engaged in such criminal activity. State v. Branch, 182 N.J. 338, 350 (2005) ("[B]oth the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged."); State v. Bankston, 63 N.J. 263, 268-69 (1973); and State v. Taylor, 350 N.J. Super. 20, 33 (App. Div.) ("The principle distilled from Bankston and its progeny is that testimony relating inculpatory information supplied by a co-defendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights." (quotation and citation omitted)), certif. denied, 174 N.J. 190 (2002).

In addition, the statements attributed to those non-testifying individuals, both as to illegal activity and gunshots, was "non-testimonial" in nature and, consequently, admissible under the Supreme Court's holding in State ex rel. J.A., 195 N.J. 324 (2008). In J.A., the Court held that the Confrontation Clause does not bar "non-testimonial" hearsay at trial.

In Davis [v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)], the Supreme Court concluded that the statements made by the domestic violence victim to the [9-1-1] operator, identifying her husband as her assailant, were nontestimonial. Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240-41. The Court stressed that the defendant was in the process of beating his wife, the declarant, while she spoke with the [9-1-1] operator. Ibid. Thus, the declarant-victim was "speaking about events as they were actually happening, rather than describ[ing] past events." Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240 (quotation omitted) (alteration in original). Although the Court recognized that "one might call [9-1-1] to provide a narrative report of a crime absent any imminent danger," the woman in Davis was "plainly [calling] for help against a bona fide physical threat." Ibid. Viewed objectively, the "primary purpose" of the victim's statements was to resolve an ongoing emergency, not "to learn . . . what had happened in the past." Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240.

Because the victim's [9-1-1] statements were not "testimony" in the Sixth Amendment sense--an account of a past event--but rather a cry for help "to enable police assistance to meet an ongoing emergency," id. at 828, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240, the admission of those statements did not violate the Confrontation Clause. Id. at 828-29, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240-41.

[Id. at 345-46 (footnote omitted).]

Because we find no error, we do not need to reach the issue of whether it was harmless.

ii.

Carey also argues that McKeown should not have been permitted to testify as both a fact and an expert witness, and that the trial judge should have given an additional instruction to the jury because of the dual role. He relies on State v. Jackson, 278 N.J. Super. 69, 78 (App. Div. 1994) ("[W]e recognize an intertwining of the roles of the fact and expert witness might create juror confusion and this possibility places a burden on the trial judge to insure the jury is properly instructed as to the dual role of the witness and its function in evaluating the testimony."), certif. denied, 141 N.J. 95 (1995).

Although we agree with Carey that McKeown's dual role was undesirable and that the judge should have given the jury an additional instruction, we see nothing about McKeown's very limited fact testimony that was "clearly capable of producing an unjust result." Bunch, supra, 180 N.J. at 541. Significantly, in our view, McKeown was not a fact witness with respect to Carey's own conduct at the time of his arrest, which, as we observed in Jackson, supra, 278 N.J. Super. at 78, would "create a special risk that the jury may infer the opinion about the criminal nature of the conduct is based on knowledge of the officer about the defendant beyond the evidence produced at trial." Consequently, we find no plain error.

iii.

The final trial error alleged by Carey concerns the issue of constructive possession. He argues that both the prosecutor and the trial judge misstated the law in that regard. Although we agree that the prosecutor's description of constructive possession was incomplete and, therefore, inaccurate, we are satisfied that the judge correctly instructed the jury and that there is no basis for reversal.

In his summation, the prosecutor described constructive possession as follows:

To be in possession, you don't have to actually have something on your person or in your hand. You can have constructive possession, which is you have the ability to control it, it's yours, you still have possession of it even though it's not on you.

My books on that table, they're not on my person. They're still [in] my possession. There's my name on that bottom book. I have constructive possession of them because I can control them. I can take them into possession. I can walk over, pick them up, then I have them. That's constructive possession.

The things in your home, you have constructive possession of them. They're not here, you can't reach them, but you're in constructive possession of them.

We agree that the prosecutor's statement fails to mention the required intentionality. See State v. McCoy, 116 N.J. 293, 299 (1989) ("[C]onstructive possession exists when a person intentionally obtains a measure of control or dominion over the stolen goods although they are under the physical control of another.")

However, the trial judge's charge was clearly correct. After telling the members of the jury that they were required to "accept and apply the law" as he gave it to them in the charge and that "any statements by the attorneys as to what the law may be must be disregarded by you if they are in conflict with my charge," the judge charged the jury as follows with respect to possession:

To possess an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as cocaine must know or be aware that he possesses it and he must know . . . what it is that he possesses or controls is . . . cocaine. In other words, to possess an item, one must knowingly procure or receive an item or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chose to do so.

. . . .

Constructive possession means possession in which the possessor does not physically have the item on his or her person, but is aware that the item is present and is able to exercise intentional control or dominion over it.

So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it either directly or through another person or persons is then in constructive possession of that item.

The latter section is consistent with the Model Jury Charge on constructive possession. See Model Jury Charge (Criminal), "Possession" (2005).

We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). Having done so, we see no error in the charge given by the judge. In addition, we see no basis to assume that the jurors failed to follow the trial judge's admonition that they accept the law as he stated it in his charge and that they disregard any inconsistent statements of the law made by counsel. See State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions."). Because the judge gave an appropriate charge, State v. Whitaker, 402 N.J. Super. 495, 515 (App. Div. 2008), aff'd, 200 N.J. 444 (2009), cited by Carey, is inapposite and reversal is not required.

B.

We now turn to the issue of Carey's sentence. Although acknowledging that the imposition of an extended term was mandatory, Carey argues that the judge should have imposed a five year rather than a six year sentence.

The scope of our review of a sentence is limited. Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we review a sentence within a set of guidelines established by the Supreme Court in State v. Roth, 95 N.J. 334, 364-66 (1984). Within these guidelines, we can

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Id. at 364-65.]

In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record."

We find it somewhat anomalous that the trial judge found both a "risk that defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), and that "[t]he character and attitude of defendant indicate that he is unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(9). It appears, however, that the judge concluded that Carey's prior criminal history supported the former but that his medical condition supported the latter. In any event, he clearly took the medical condition into account, albeit not by finding "excessive hardship" pursuant to N.J.S.A. 2C:44-1(b)(11).

Despite the apparent anomaly, we are satisfied that the decision to impose a sentence at the lower end of the extended-term range, five to ten years pursuant to N.J.S.A. 2C:43-6(f), does not constitute an abuse of discretion, nor does it shock our conscience.

Carey's remaining arguments with respect to the sentence are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

III.

In summary, for the reasons set forth above, we affirm both the conviction and the sentence.

 
Affirmed.

Arthur defined "open-air drug market" as

 
drug dealing [that] goes on twenty-four hours a day. It's out in the open. It's no secret. Guys exchange monies for drugs. Buyers come in. They walk on foot. They come in cars. Transactions are made. It's just business as usual until the police come. It's just the way -- that's just how it is there.

Neither Carey nor the other individual at the scene were found in possession of weapons.

We also note that there was substantial credible evidence that Carey had actual physical possession of the cocaine before he threw it away.

(continued)

(continued)

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A-3751-07T4

July 26, 2010