STATE OF NEW JERSEY Cross- v. TRAVIS TOWNSEND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4488-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Cross-Appellant,

v.

TRAVIS TOWNSEND,

Defendant-Appellant,

Cross-Respondent.

___________________________________________________________

December 17, 2010

 

Submitted April 21, 2010 - Decided

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

04-04-0939.

Yvonne Smith Segars, Public Defender, attorney

for appellant/cross-respondent (Robert L.

Sloan, Assistant Deputy Public Defender, of

counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent/cross-appellant

(John J. Scaliti, Senior Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

A Bergen County grand jury charged defendant Travis Townsend with fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1(a) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count two); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count five).1 On August 22, 2006, a jury acquitted defendant of resisting arrest but found him guilty on the remaining four counts. Because he was a repeat drug offender, the court sentenced defendant to a seven-year mandatory extended prison term with three-and-one-half years of parole ineligibility on count three; concurrent five-year terms on counts four and five; and a concurrent eighteen-month term on count one. Appropriate statutory penalties and assessments were also imposed.

On appeal, defendant presents the following arguments:

POINT I

 

THE JUDGE'S INTERFERENCE THROUGH THE PARTISAN QUESTIONING OF DEFENSE WITNESSES, DESIGNED TO DEMONSTRATE THAT ONE WITNESS'S TESTIMONY WAS INCONSISTENT WITH DEFENDANT'S TESTIMONY AND THAT A SECOND WITNESS'S APPEARANCE WAS NOT VOLUNTARY BUT PURSUANT TO A WRIT FROM PRISON, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const., Amend. XIV; N.J. Const. (1947), Art. I, pars. 1, 9, 10.

 

POINT II

 

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

POINT III

 

DEFENDANT'S CONVICTIONS FOR POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE (SCHOOL ZONE) AND POSSESSION OF COCAINE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE.

 

Based on our examination of the record, the briefs, and the applicable law, we affirm defendant's convictions. However, we remand for resentencing.

On October 1, 2003, while patrolling a high crime area in the City of Englewood in an unmarked vehicle, Officer Salvatore LaFerlita (Officer LaFerlita) and Parole Officer Sean Van Luben (Officer Van Luben) observed defendant and Washington standing on the sidewalk consuming alcohol in violation of an Englewood ordinance. Officer Van Luben recognized Washington, a parolee, and the officers stopped their vehicle to question the two men. At that point, defendant and Washington walked from the sidewalk area up the front steps of a residence, which was later determined to be Washington's home. The officers followed them onto the property and went "up a couple of steps." Officer LaFerlita directed his attention to defendant, while Officer Van Luben questioned Washington.

Officer LaFerlita testified that defendant "was clearly intoxicated. He was acting belligerent, he was agitated, his position was that he was on private property, he was tired of getting harassed by the cops, he wasn't doing anything wrong." Defendant's behavior, in conjunction with an approximately seven-inch height advantage and position "one or two steps" above the officers, prompted Officer LaFerlita to conduct a pat-down search for weapons. As Officer LaFerlita began the pat down, defendant "swung his right elbow" at him and began to run. Officer LaFerlita chased defendant past "about three houses" and tackled him to the ground. After a brief struggle, defendant was handcuffed and placed under arrest. Officer LaFerlita then searched defendant and found two clear plastic bags containing seventy-three rocks of a substance later confirmed to be crack cocaine in defendant's pocket.

At trial, the State elicited testimony from Detective Donald Ingracelino of the Bergen County Narcotics Task Force (Detective Ingracelino), who was qualified as an expert in the field of narcotics trafficking. In response to a hypothetical question, which mirrored the facts of the case, Detective Ingracelino testified that possession of seventy-three bags of crack cocaine valued at over $700 without accompanying use paraphernalia suggested that the crack cocaine was possessed with an intent to distribute. Additionally, the parties stipulated that defendant was arrested within a school zone.

Defendant testified and admitted that he possessed the seventy-three rocks of crack cocaine, but he claimed that the cocaine was for his personal use, not distribution. Defendant's fiancée Andrian Pauli (Pauli), defendant's father, and Washington all testified regarding defendant's drug habit.

In his first point, defendant argues that he was deprived of a fair trial because the judge questioned Pauli in a manner that "suggested that the defense case was weak and inconsistent" and characterized Washington's trial testimony as "involuntary." We disagree.

Chronologically, Officer LaFerlita and defendant testified before Pauli. Officer LaFerlita stated that once defendant was apprehended, handcuffed, and placed under arrest, a subsequent search revealed two bags of crack cocaine. Defendant refuted Officer LaFerlita s sequencing, asserting that Officer LeFerlita had taken the drugs from his pocket while he was on Washington s front steps:

[DEFENDANT]: [Officer LaFerlita] went in my pocket . . . . [H]e he just stuck his hand in my pocket and pulled out two bags.

 

[DEFENSE COUNSEL]: And then what happened?

 

[DEFENDANT]: I pushed his hand away and began to walk off.

 

. . . .

 

[DEFENSE COUNSEL]: And you started to walk off?

 

[DEFENDANT]: Yeah.

 

. . . .

 

[PROSECUTOR]: [Officer LaFerlita] says that you ran three houses down after the police came, but when [defense counsel] asked you what happened, you didn t say that. Did you run three houses down or not?

 

[DEFENDANT]: I began to walk off.

 

[PROSECUTOR]: The drugs were taken from you, your testimony is, before you ran three houses down?

 

[DEFENDANT]: Yes.

 

However, Pauli s testimony on this point conflicted with defendant s, and the court asked Pauli two additional questions to clarify when she had observed the police seize the cocaine from defendant:

[PAULI]: [Defendant and Washington] were sitting [on the front steps] for maybe an hour or so talking, and then the cops walked up . . . .

 

So then [defendant] gets up and is walking towards the car so we can leave. . . . Then all of a sudden [Officer LaFerlita], like went after him. . . . [Defendant] staggered back and fell to the ground and that's when [Officer LaFerlita] got him and put his hands in the back. . . .

 

. . . .

 

[DEFENSE COUNSEL]: Was [defendant] under arrest at that point?

 

[PAULI]: No. The cop was just on him. . . .

 

. . . .

 

[DEFENSE COUNSEL]: . . . What happened next?

 

[PAULI]: [Officer LaFerlita] put handcuffs on him and put him on Washington's lawn. . . .

 

[DEFENSE COUNSEL]: . . . And then what happened?

 

[PAULI]: And then -- well, before that, that's when [Officer LaFerlita] pulled the things, the bag out of his pocket . . . .

 

[DEFENSE COUNSEL]: Are you referring to the drugs?

 

[PAULI]: Yes.

 

[DEFENSE COUNSEL]: . . . [I]s that before [defendant] was arrested that the drugs were pulled out of his pocket?

 

[PAULI]: Before, yeah. Uh huh. When [Officer LaFerlita] had him down on the ground . . . that's when he went into his pocket and pulled out --

 

[THE COURT]: So [defendant] was laying on the ground and you saw that?

 

[PAULI]: Yes, sir.

 

[THE COURT]: Didn't happen before then?

 

[PAULI]: No.

 

Defendant contends he did not receive a fair trial because the trial court improperly interjected itself into the case when it questioned Pauli. Defendant claims that State v. Taffaro, 195 N.J. 442 (2008), supports his position. We do not agree.

In Taffaro, the defendant was accused of violating a restraining order by posting a personal ad on Craigslist inviting people to contact his sister for sexual favors by telephoning her at her unlisted telephone number. Id. at 446. At the time, defendant and his sister were involved in a dispute regarding their parents estate, and defendant s sister had obtained a restraining order that prohibited defendant from communicating with her "personally, or by telephone, in writing, or in any other manner directly or indirectly." Id. at 445-46. At trial, defendant claimed that two acquaintances, Daniel Ng and Redner Portela, had typed the ad on his computer while they were visiting him. Id. at 446. Defendant testified that when he learned of the ad, he told Ng and Portela to remove the message and he "believed them when they said they had done so." Id. at 447. However, Ng and Portela both denied typing or posting the offensive ad. Ibid. Thus, as the Court noted, "the case devolved into a battle over credibility." Ibid.

The Court concluded that defendant was entitled to a new trial because the trial judge asked defendant more than thirty questions, id. at 448, which "did not help clarify defendant's understandable testimony; instead, they underscored the weaknesses in his defense." Id. at 452. Moreover, the Court found that the trial judge's questions "covered, in part, terrain that had already been crossed" and that the "questions had the capacity to signal disbelief." Id. at 453.

More recently, in State v. O'Brien, 200 N.J. 520 (2009), the Court reiterated the principles enunciated in Taffaro:

[I]t is proper, and even encouraged, for a trial judge to step in when a party s basic rights are being threatened, when expedition is necessary to prevent a waste of judicial time/resources, when testimony requires clarification, or when a witness appears to be in distress or is having trouble articulating his/her testimony. However, that right is limited particularly in the context of a jury trial, where the judge is not the factfinder to ensure that a court does not telegraph to the jury any partiality to a given party s side.

 

[Id. at 534 (citations omitted).]

 

In this case, unlike in Taffaro and O Brien, the trial judge did not question Pauli in such a way that he assumed the role of the prosecutor and the court's questions, which clarified certain facts without suggesting any view, were neither improper or unduly protracted. In addition, the trial court instructed the jury as follows:

Now, the fact that I may have asked a question or questions of the witness or witnesses in the case must not influence you in any way in your deliberations. The fact that I asked such question or questions does not indicate that I hold any opinion one way or the other as to the testimony given by the witness.

 

Under these circumstances, we are satisfied that the trial court's brief questioning, which was not objected to, did not cross "the line that separates permissible judicial intervention in a trial from improper advocacy." Taffaro, supra, 195 N.J. at 450.

Similarly, defendant contends the trial judge "unfairly undermined the defense claim that Washington was credible" by characterizing "Washington's appearance as involuntary." This claim is based on the following colloquy, which took place during Washington's direct testimony:

[DEFENSE COUNSEL]: Are you getting a shorter sentence to come here?

 

[WASHINGTON]: No, Ma am.

 

[PROSECUTOR]: Objection.

 

[THE COURT]: Assistance, that s made with the State not with defense counsel.

 

[DEFENSE COUNSEL]: I just want to be clear that he is not . . . getting a shorter sentence as a result of him coming here.

 

[DEFENSE COUNSEL]: Why did you come, Mr. Washington?

 

[THE COURT]: No, you subpoenaed him, he has no choice.

 

[DEFENSE COUNSEL]: I didn t subpoena him.

 

[THE COURT]: You had to under the circumstances to writ him up.

 

[DEFENSE COUNSEL]: To bring him up, but I didn t subpoena him.

 

[THE COURT]: You didn t subpoena him, we wouldn t have gotten him up here. We don t bring -- you got to subpoena him. When I asked you to writ him up, I didn t issue a subpoena. I wouldn t have brought him up if there was . . . no subpoena. It s the only way we bring someone up, same with the State, same with the defendant.

 

[DEFENSE COUNSEL]: I asked you to writ him up.

 

[THE COURT]: If I had known there was no subpoena, he would not be here today.

So as far as I m concerned, ladies and gentlemen . . . he was taken out of State Prison to get here by the Court, because he was involuntarily brought here, he didn t request to come here.

 

[DEFENSE COUNSEL]: When I asked you if you wanted to come and testify as a witness what was your response?

 

[PROSECUTOR]: You Honor, objection.

 

[THE COURT]: I'll allow that.

 

[WASHINGTON]: It was the right thing. I just wanted to tell what happened that night.

 

In our view, this exchange does not support defendant's claim that the trial judge's remarks undermined Washington's credibility. On the contrary, Washington indicated that he wanted to testify because "[i]t was the right thing" and because "he wanted to tell what happened that night." In addition, the court's remarks regarding the process for obtaining Washington's presence in court had nothing to do with Washington's credibility as a witness. Accordingly, we find that the judge's remarks did not prejudice defendant's right to have the jury fairly assess his case.

In his second point, defendant argues that the trial judge erred in finding aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11) (stating that imposition of a fine or penalty "without also imposing a term of imprisonment would be perceived by the defendant or others merely as a part of the cost of doing business"). The State acknowledges this error, and we agree. See State v. Dalziel, 182 N.J. 494, 502 (2005) (indicating that N.J.S.A. 2C:44-1(a)(11) is "[b]y its very terms . . . inapplicable unless the judge is balancing a non-custodial term against a prison sentence").

The defendant also argues, and the State concedes, that counts four and five merge with count three. Once again, we concur. See State v. Gonzalez, 123 N.J. 462, 464-65 (1991) (holding that third- and fourth-degree Section 5 offenses merge with Section 7 (school zone) offenses).

On its cross-appeal, the State argues "defendant received over 400 days of jail credit to which he was not entitled." At sentencing, the court acknowledged that the record was "very incomplete" regarding the length of defendant's prior incarcerations. In response, the State requested "that there be a submission with some documentation" and asked the court "to hold off on awarding [jail] credits." Nevertheless, the court proceeded to award defendant 426 days of jail credit.

Based on the sentencing errors in points two and three, we find it appropriate to remand for resentencing. See State v. Thomas, 195 N.J. 431, 437 (2008) ("If the appellate panel finds that there has been [a sentencing] error, 'a remand to the trial court for resentencing is strongly to be preferred.'") (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)). Prior to resentencing, the parties can submit documentation to assist the court in determining the jail credits defendant is entitled to receive.

In view of the foregoing, we affirm defendant's convictions but remand for resentencing. Jurisdiction is not retained.

 

1 Fourth-degree obstruction of justice, N.J.S.A. 2C:29-1(a) (count six), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count seven), were charged against co-defendant Corey Washington (Washington). Washington entered a guilty plea to count six and was sentenced to a one-year prison term. Only defendant Townsend is involved in this appeal.