STATE OF NEW JERSEY v. ANTHONY BECKWITH

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5868-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY BECKWITH,

Defendant-Appellant.

_________________________________________________

October 18, 2010

 

Submitted September 21, 2010 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment Nos.

07-10-1657 and 08-01-0183.1

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ingrid A. Enriquez,

Designated Counsel, on the brief).

 

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Loren A. Youmans,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Anthony Beckwith, was indicted by a Hudson County Grand Jury, along with others, pursuant to Indictment No. 07-10-1657, for the crimes of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Seventh Count); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Eighth Count); third-degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Ninth Count); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Tenth Count); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Eleventh Count); second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1a (Twelfth Count); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2, 2C:35-5a(1) and 2C:35-5b(3) (Thirteenth Count). He was charged in Indictment No. 08-01-0183 with second-degree possession of a revolver for an unlawful purpose, N.J.S.A. 2C:39-4a (First Count), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Second Count), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9e (Third Count).

Defendant was tried on Indictment No. 07-10-1657. He was convicted by a jury of all charges except conspiracy. Defendant was sentenced to three years in prison for merged counts of possession and possession with the intent to distribute CDS. He was sentenced to five years in custody with three years of parole ineligibility on the school zone charge, and he was sentenced to three years in custody on the merged weapons charges. Although these sentences were run concurrently, defendant was also given a consecutive sentence of five years in custody on the charge of possessing a weapon while committing a CDS crime. Aggravating factors 3 (risk of reoffense) and 9 (the need for deterrence) were found, N.J.S.A. 2C:44-1a(3) and (9), along with mitigating factor 11 (the hardship imposed on defendant's pregnant fiancée), N.J.S.A. 2C:44-1b(11).

Following trial, on July 14, 2008, defendant pled guilty, pursuant to Indictment No. 08-01-0183, to second-degree possession of a weapon for an unlawful purpose after accepting a plea offer of five years in custody with three years of parole ineligibility, concurrent to the sentence imposed on the earlier indictment. As we have stated, defendant's appeal addresses that earlier 2007 indictment.

On appeal, defendant presents the following arguments:

POINT I

 

THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD POSSESSED CDS AND THE GUN.

 

POINT II

 

THE TRIAL COURT ERRED IN PERMITTING SERGEANT CHRISTOPHER ROBATEAU TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS. (Not Raised Below.)

 

POINT III

 

THE WARRANTLESS SEARCH AND SEIZURE OF THE CDS AND GUN WAS NOT BASED ON ANY REASONABLE AND ARTICULATE (SIC) SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPPRESSING THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I PARS. 1 AND 10. (Not Raised Below).

 

POINT IV

 

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL.

 

POINT V

 

THE DEFENDANT CLEARLY AND CONVINCINGLY SHOWED THAT RELEVANT MITIGATING FACTORS WERE PRESENT TO AN EXTRAORDINARY DEGREE, AND, CUMULATIVELY, THEY GREATLY EXCEEDED ANY AGGRAVATING FACTORS.

 

I.

 

The record establishes that, on the morning of July 17, 2007, the Jersey City police conducted a drug surveillance in the area of 49-A Jewett Avenue. While the surveillance was underway, Officer Ray Weber, who was located in very close proximity to the events he described, observed Roscy Dennis2 sitting on the steps of 49-A Jewett Avenue, where he was joined by defendant, who exited the building and sat beside Dennis for a short time before both men reentered the building, reappearing shortly thereafter. Olu Rotilu was seated nearby in a silver Nissan Altima. Thereafter, Vagarri Craig, a passenger who was driven to the location in a blue Volvo, left the car while counting currency, approached Dennis and defendant, and conversed with them. Dennis then called to Rotilu, who left the Altima and engaged in what appeared to be a hand-to-hand drug transaction with Craig. Weber then radioed perimeter units to pick up Craig and the driver of the Volvo, Miguel Ramos, which they did, discovering vials of cocaine with red caps.

After the drug transaction, defendant entered 49-A Jewett Avenue, using keys to do so. Dennis remained outside, and Rotilu returned to his car and left the area. Rotilu was later intercepted by the police and found to be carrying $817 in cash, which the police suspected to be drug sale proceeds. When Dennis observed the police stopping Rotilu, Dennis ran into 49-A Jewett Avenue, shutting the door. The police followed and arrested Dennis who was found to be carrying $119 in cash.

Sergeant Patricia Cassidy, who was in charge of the surveillance but had been acting as a perimeter officer, came to the scene following the arrest of Dennis. Cassidy proceeded into the first-floor hallway of the apartment building at 49-A Jewett Avenue, looking for defendant, who was said to be wearing a white sleeveless tee shirt. Although she in fact passed defendant on the first floor, and noticed that he had just come downstairs in the company of a woman, she did not identify him, because he had removed his shirt and was bare chested. When questioned, the woman stated that the building had only two floors. However, when Cassidy proceeded with Officer Dave Weber to the second floor, they realized there was a third floor and continued upward.

Once on the third floor, Cassidy observed a railroad-type apartment with closed doors and, at the end of the hallway, a room with a door that was open by approximately one foot. Looking through the opening, Cassidy observed a white sleeveless tee shirt lying on the ground near the door sill. She then entered the room, looking for defendant, and saw on the bed a gun, loaded with five rounds of ammunition, and thirty-three vials of cocaine with red tops. On a T.V., located at the end of the bed, Cassidy found an I.D. bearing defendant's name, but an address different from 49-A. The photograph on the I.D. was that of the man that Cassidy had seen on the first floor.

Realizing that the man on the first floor was defendant, Cassidy and Weber went back downstairs, but he was gone. He was arrested pursuant to a warrant on a later date.

II.

On appeal, defendant argues that he should have been granted a judgment of acquittal on the charges of possession of CDS, contained in the Seventh Count of the indictment, and unlawful possession of a weapon, contained in the Tenth Count, because the State failed to prove beyond a reasonable doubt that he actually or constructively possessed those items, found by the police on the bed in the third-floor room. However, after viewing the State's direct and circumstantial evidence in its entirety and giving the State the benefit of all favorable testimony and inferences, we are satisfied that a reasonable jury could find beyond a reasonable doubt that defendant was guilty of the two possession charges by finding that the items at issue were constructively possessed by him. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967); N.J.S.A. 2C:2-1c. As stated by the Court in State v. Brown, 80 N.J. 587 (1979):

"[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time," State v. Davis, 68 N.J. 69, 82 (1975), accompanied by knowledge of its character. Such possession can be constructive rather than actual. Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists.

 

[Brown, supra, 80 N.J. at 597 (some citations omitted).]

 

Indeed, we have affirmed possession convictions on the basis of similar evidence of constructive possession in State v. Harrison, 358 N.J. Super. 578, 586 (App. Div. 2003), aff'd sub nom State v. Spivey, 179 N.J. 229 (2004). In that case, drugs and guns were found in an apartment leased to the defendants. Affirming Spivey's convictions for drug- and gun-related offenses, we noted "the underlying crime of possession of CDS 'with intent to distribute' is a crime that can be proved irrespective of the possessor's physical presence alongside the drugs. It is enough that he had the ability to control the drugs and the gun in his apartment." Id. at 584.

In the present case, there was no evidence that defendant had leased the third-floor room in which the gun and drugs were found. However, substantial evidence linked defendant to 49-A Jewell Avenue and to that third-floor room. Prior to the drug sale, Officer Ray Weber witnessed defendant exiting 49-A Jewett Avenue to sit with Dennis, and then returning into the building for a short time with him. Weber also saw defendant standing with Dennis and Rotilu while a hand-to-hand drug transaction occurred involving the sale of red capped vials of cocaine that were packaged in the same fashion as the thirty-three vials later discovered in the building's third-floor room. After the sale, Weber saw defendant entering 49-A Jewett Avenue by use of a key that he held in his possession. Upon Sergeant Cassidy's entry into the building, she witnessed defendant inside that building coming down the stairs from an upper floor. Further, upon reaching the third floor and looking through the partially opened door into the room in question, Cassidy saw a tee shirt that conformed to the description given by Weber of what defendant was wearing, and upon entry into the room, she discovered his identification card. The State presented nothing that would suggest the occupancy of the room by anyone other than defendant. Finally, the attempt by defendant's female companion to convince Cassidy that the building contained only two floors can be construed as an effort to conceal defendant's occupancy of the third floor room. We find these facts, viewed as a whole, to provide sufficient evidence to sustain defendant's possessory convictions.

III.

Defendant next argues that it was improper to admit the opinion of expert witness Sergeant Robateau, introduced by means of a hypothetical that conformed to the evidence in this matter. Robateau was given the following hypothetical:

Assume actors A, B and C are observed in the area of 49-A Jewett Avenue. Now assume actors B and A have a conversation and go into 49-A Jewett Avenue, then they exit when actors D and E approach [in] their vehicle. . . . Assume actors D and E approach specifically after D exits the vehicle approaching actors A and B. Assume now that actor A calls to actor C to approach and actor C approaches and then a hand to hand transaction is observed from actor C to actor D, which is cash for objects, while actors A and B are present and observed. Soon after this transaction police stop actors D and E, finding drugs in their possession[. T]he police also stop actor C finding $817 in his possession[,] and a loaded gun as well as 33 vials as well as actor B's identification card are found.

 

Robateau was then asked questions regarding various of the other individuals described in the hypothetical and, in connection with actors A and C, he responded:

A and C obviously acted in concert, specifically by A steering what in my opinion would be a potential customer over to C, he called him over.

 

. . .

 

A and C were acting in concert to distribute that particular narcotic to actor D who I stated before was that probably the intent was just to make a purchase and leave.

 

Then, in questioning that focused on actor B, the following exchange occurred:

Q Now actor B was the one in the hypothetical who was present but then also his I.D. was found with a gun [and] his shirt and such later on. Do you [have] any opinion as to what actor B was doing?

 

A Well, actor B, during the transaction he was present at the time that the transaction was being was being conducted.

 

Q And what does that demonstrate to you based on your training and experience?

 

A Well, at a minimum his culpability or his state of mind would be that he knowingly was there and present during the [drug] transaction so he would have had to have known what was going on during the transaction even though he didn't actually take any type of physical action during the transaction. And of course, going to the latter part of that, the recovery of the identification alon[g] with the narcotics and the weapon would show that there is of course some type of nexus between him and the narcotics and the and/or weapon.

 

Q Sergeant, based on your training and experience do you have an opinion as to the contents of the bag, specifically the bag with the multiple vials? I believe you stated how many were in there?

 

A Thirty three.

 

Q Were for personal use or distribution?

 

A I would have to say undoubtedly they are for distribution purposes, just not only just based on the sheer amount of it but also the fact that an observed sale was was observed during the course of the surveillance.

In making his argument, defendant relies on our opinion in State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). In Baskerville, we reversed a conviction based upon inconclusive evidence, gained through a long-distance surveillance, that hand-to-hand transfers of drugs for money had occurred and expert testimony, based on a hypothetical conforming to the facts of the case, that the individual representing defendant in the hypothetical was selling narcotics. In doing so, we held that the admission of the testimony of the expert as to the significance of facts, which were not beyond the ability of a juror to understand, impermissibly bolstered the State's otherwise weak surveillance evidence of the commission of a crime. Id. at 258-64. However, in reaching our conclusion we acknowledged that "'[E]xpert opinion is admissible if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar, or if . . . the expert testimony would "assist the jury in comprehending the evidence and determining issues of fact."'" Id. at 257-58 (quoting State v. Berry, 140 N.J. 280, 292-93 (1995) (quoting State v. Odom, 116 N.J. 65, 70 (1989)). Additionally, we acknowledged that "an expert's description of methods typically used in drug transactions" would constitute a proper subject of expert testimony. Id. at 257 (citing Berry, supra, 140 N.J. at 292-93).

In our view, Robateau's testimony regarding the tripartite relationship between A, C and the buyer constituted the type of modus operandi testimony that the Court in Berry had found proper, as we acknowledged in Baskerville. Ibid.

The remainder of the expert testimony focused on whether the drugs found in the room occupied by defendant were for personal use or distribution. That has likewise been held to be a proper subject of expert testimony. Odom, supra, 116 N.J. at 78-79; State v. Summers, 350 N.J. Super. 353, 365 (App. Div. 2002), aff'd, 176 N.J. 306 (2003). As a consequence, we reject defendant's argument to the contrary.

IV.

Defendant makes a further argument that counsel was ineffective in failing to move for suppression of the drugs and gun. Determining that such an argument requires consideration of evidence outside of the trial record, we defer our consideration until such time as a petition for post-conviction relief has sharpened the evidence relevant to the issue presented. State v. Preciose, 129 N.J. 451, 461 (1992).

We find defendant's argument with respect to cumulative error to have insufficient merit, in light of our rejection of defendant's substantive legal arguments on appeal, to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

As a final matter, defendant complains that his sentence was excessive, that the trial judge improperly failed to give sufficient weight to mitigating factor 11, and that the judge should have considered mitigating factor 10 and imposed a term of probation. However, defendant's argument is premised on the commission only of third-degree crimes, whereas he was convicted of committing two second-degree crimes: possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1a. Thus, the presumption of imprisonment applies unless "having regard to the character and condition of the defendant, [the court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d.

Our review of the record satisfies us that defendant has not met the heavy burden imposed on him to overcome the presumption under standards established in State v. Evers, 175 N.J. 355, 392-95 (2003). Case law establishes that the fact that defendant has previously led a blame-free life or is a first offender neither of which conditions defendant can meet is insufficient to overcome the presumption. Id. at 388, 400; State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied, 111 N.J. 589 (1988). It is not overcome solely by a preponderance of mitigating factors which, again, the judge did not find to have occurred. Evers, supra, 175 N.J. at 392-95; State v. Roth, 95 N.J. 334, 358 (1984). Nor is relative youth sufficient. Cf. State v. Styker, 262 N.J. Super. 7 (App. Div.), aff'd o.b., 134 N.J. 254 (1993). Further, we are persuaded that, as the result of the enactment of N.J.S.A. 2C:39-4.1d, requiring the imposition of a consecutive custodial term for commission of possessing a firearm while committing a drug crime, the imposition of a non-custodial term in the present case would be wholly improper.

We note that in sentencing defendant, the judge stressed that he was imposing the lowest possible sentence upon him. In the circumstances, we find no abuse of discretion in the judge's sentencing determinations. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); Roth, supra, 95 N.J. at 356-66.

The State notes, however, some errors in the sentence that require correction. First, the Seventh Count (possession of CDS) and Eighth Count (possession of CDS with the intent to distribute), which the judge merged, should have been further merged into the Ninth Count (possession of CDS within 1000 feet of a school). State v. Gonzalez, 123 N.J. 462, 464 (1991). Additionally, the Tenth Count, charging unlawful possession of a weapon, should not have been merged into the Eleventh Count, charging possession of a weapon for an unlawful purpose. State v. DeLuca, 325 N.J. Super. 376, 392 (App. Div. 1999), aff'd on other grounds, 168 N.J. 626 (2001). Rather, the Eleventh Count should have been merged into the Twelfth Count, charging possession of a weapon while committing a drug crime. State v. Diaz, 144 N.J. 628, 636 (1996), although the judge was correct to impose a consecutive sentence in this regard. N.J.S.A. 2C:39-4.1. Upon remand, the judge should also consider the applicability of the Graves Act mandatory minimum sentencing provisions to the weapons-related sentences. See N.J.S.A. 2C:43-6c. As a final matter, the judgment of conviction must be modified to note the two second-degree crimes.3

Defendant's convictions are affirmed. The matter is remanded for resentencing.

1 Although the notice of appeal filed on behalf of defendant, Anthony Beckwith, lists the judgment of conviction resulting from this latter indictment as a subject of the appeal, no arguments address it.

2 We have spelled Dennis's and Rotilu's names as they appear in the indictment.

3 Contrary to the State's arguments, we find that the judge otherwise correctly ran the sentence on Count 12 consecutively to the other counts in the indictment and to Indictment No. 08-01-0183.