STATE OF NEW JERSEY v. RICHARD A. SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD A. SCOTT,

Defendant-Appellant.

_____________________________________________

March 2, 2011

Submitted September 22, 2010 Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2792.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard A. Scott appeals from a final judgment of conviction of drug and weapons related offenses and resisting arrest. Defendant essentially maintains he is an innocent person who happened to be in the wrong place at the wrong time and that he found himself present during a "sting operation" concerning a drug transaction of which he was not a part. The jury found otherwise and we affirm.

In March 2007, Detective Bryan Minkel of the New Jersey State Police Drug Trafficking South Unit was contacted by an Officer Myers of the Philadelphia Police Department, Narcotics Unit. Meyers advised Minkel that one of his confidential informants had negotiated a deal to purchase seven ounces of crack cocaine from a source in Camden, but that the Camden source would not come to Philadelphia to complete the transaction. Myers asked Minkel to renegotiate the deal to be completed in New Jersey. Accordingly, Detective Minkel's team spoke with the confidential source and acquired information concerning the individuals involved in the proposed drug transaction.

Based on information from the source, Minkel and his team conducted an intelligence data bank check to determine the names of the identified sellers, Pierre Minor and Michael Harris. Minkel contacted Detective Sergeant Don Ciaccio, a twenty-one year veteran of the New Jersey State Police, to pose as a member of an organized crime syndicate. After planning the proposed deal with Minkel and his team, Ciaccio called Minor and arranged for the deal to take place in a parking lot adjacent to Campbell's Field in Camden at noon on March 22, 2007, at which time Ciaccio would pay $5,950 for seven ounces of cocaine.

Minkel and other surveillance officers stationed themselves around the drop site perimeter. The undercover operations team maintained contact with Ciaccio using an on-body recording device and transmitter. Minor and Harris arrived at the site in a black Dodge Intrepid and approached Ciaccio and the confidential source. They stated they only had six ounces of cocaine for sale, and Harris explained he did not bring the drugs with him for fear of being robbed. After Ciaccio assured the pair he had the money, Harris made a phone call. Upon completing the call, Harris advised that he would be back in ten minutes with the cocaine.

Harris drove off in the Intrepid while Minor remained behind with Ciaccio and the confidential source. In approximately ten minutes, the Intrepid returned to the parking lot with defendant in the front-passenger seat. A second vehicle, a black Dodge Magnum driven by co-defendant Lawrence Clements, followed the Intrepid into the parking lot. After the Intrepid stopped, defendant got out and visually scanned the parking lot. Harris also exited the vehicle, spoke briefly with defendant and then approached Ciaccio and Minor. Ciaccio suggested to Harris that the two get into Ciaccio's vehicle to complete the sale. Harris and Ciaccio entered the vehicle while Minor and the confidential source remained outside. Harris handed over a black bag containing six ounces of crack cocaine broken into quarter-ounce portions. At this point, Ciaccio gave a predetermined signal alerting the surveillance officers to move in and arrest Harris and Minor.

Minkel testified that defendant, on seeing the police units, jumped into the passenger side of the Magnum and attempted to flee the parking lot, which was surrounded by the police. Cornered, defendant and Clements exited the Magnum and fled on foot. State Troopers involved in the sting pursued as defendant ran into a construction site. During the foot pursuit, Trooper Christopher Demaise observed defendant throw a weapon into the backyard of a row home adjacent to the construction site. Demaise and a Camden police officer apprehended defendant after he jumped into a foundation hole within the construction site. Clements was also apprehended. The weapon, a Barretta 380 semiautomatic pistol, was recovered by State Troopers.

A Camden County grand jury returned indictment number 07-08-2792 charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree distribution and/or possession with intent to distribute CDS, N.J.S.A. 2C:35-5(b)(1) (count two); second-degree conspiracy/possession with intent to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(1) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b) (count six); second-degree weapons possession during CDS offenses, N.J.S.A. 2C:39-4.1(a) (count seven); and second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight).

Following the trial on May 13, 14 and 15, 2008, the jury found defendant guilty on all counts. At the sentencing hearing, the court merged counts one and three with count two and count eight into count seven. The court sentenced defendant on count two to a custodial term of twenty years with eight years of parole ineligibility. On counts five and six, the court imposed terms, concurrent with count two, of eighteen months and five years, respectively. On count seven, the court sentenced defendant to a custodial term of ten years, with a five year parole disqualifier, to be served consecutive to count two. In the aggregate, defendant received a thirty-year sentence with thirteen years of parole ineligibility. Requisite fines and penalties were also imposed.

In this appeal, defendant raises the following points of argument:

POINT I: THE TRIAL JUDGE SHOULD NOT HAVE SUA SPONTE TURNED A MERE LACK OF DEFENSE OBJECTION TO ADMISSION OF THE LAB REPORT INTO A FULL-BLOWN STIPULATION THAT, IF CALLED TO TESTIFY, THE FORENSIC SCIENTIST WOULD HAVE TESTIFIED TO CERTAIN "UNDISPUTED" FACTS THAT THE PARTIES "AGREE ARE TRUE."

POINT II: THE PROSECUTOR'S SUMMATION IMPROPERLY ATTEMPTED TO "EXPLAIN" WHY THE STATE HAD NOT TAKEN FINGERPRINTS FROM THE WEAPON, THEREBY COMMENTING ON MATTERS NOT THE SUBJECT OF EVIDENCE IN THE CASE.

POINT III: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

None of these arguments warrants a reversal.

We review defendant's arguments on the premise that any error should be disregarded unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Defendant argues that the trial court erred when it converted the absence of an objection to the laboratory report of the forensic chemist into a "stipulation." Defendant argues the judge entered the exclusive domain of counsel by stating "the parties agree these facts are true." In addressing the report, the judge stated:

There's a stipulation that was entered into between the parties. They have agreed to certain facts. The jury should treat these facts as undisputed. That is, they agree these facts are true. As will [sic] all evidence, undisputed facts may be accepted or rejected by you the jury in reaching a verdict.

The court then explained (1) that if she had appeared in court the chemist who prepared the report would testify in accordance with the facts set forth in the report, (2) that the equipment used to perform the analysis was properly functioning and (3) that the item submitted for testing was cocaine with a gross weight of 5.83 ounces.

Although defendant argues that he was prejudiced by the use of the word "stipulation," we are not convinced that he suffered any prejudice. More fundamentally, we do not find the trial judge's statement erroneous or even inaccurate. We have recognized that N.J.S.A. 2C:35-19(c) "essentially establishes a pretrial procedure for stipulating a written drug-testing report into evidence." State v. Roberson, 246 N.J. Super. 597, 605 (App. Div. 1991) (emphasis added). We have observed that "the statute permits a defendant to decline to enter the stipulation simply by giving timely notice of which fact or facts respecting the test the State must prove with admissible evidence." Ibid. A similar position has been expressed by our Supreme Court. See State v. Miller, 170 N.J. 417, 431 (2002) (noting the statute "allow[ing] the state to seek a stipulation from a defendant regarding the admissibility of a lab certificate is not problematic. There is simply no harm in asking a defendant who has the right to refuse, to enter into a stipulation").

Significantly, defendant's defense at trial was that he had just received a ride from Harris to meet Clements for lunch and was fortuitously and wrongfully included in the drug bust. The amount of cocaine recovered was, therefore, inconsequential to such a defense. Further, the trial judge clearly informed the jurors they were free to accept or reject the lab report in arriving at their verdict, and we must assume they followed such instruction. See State v. Marshall, 173 N.J. 343, 355 (2002).

Defendant next argues the prosecution violated his constitutional rights to due process and a fair trial by attempting to explain in summation why there was the lack of fingerprint testing without a basis in fact. The prosecutor offered that no fingerprinting was done because "lots of people touched the gun." He stated:

Fingerprints? Whose fingerprints are going to be there? There's going to be lots of fingerprints. Fingerprints from the two officers that cleared it, fingerprints from the defendant, if any. There were no tests done. Why were there no tests done? Because lots of people touched the gun. The gun was touched by at least three people that day. So you don't know who was doing what and where.

Defendant argues the prosecutor's explanation is devoid of evidentiary support in the record. However, the record shows the prosecutor's comments regarding fingerprinting were in fair response to defense counsel's argument that the lack of fingerprint testing raised a reasonable doubt as to whether defendant ever possessed the handgun.

In considering this issue, we note that "[b]oth the prosecutor and the defendant are allowed wide latitude in summation, but [they] are confined to the facts in evidence and the reasonable inferences which may be drawn therefrom." State v. Perry, 65 N.J. 45, 47-48 (1974). A reviewing court should look at the trial, the entire summation and the trial judge's charge, to determine if the passages complained of deprived the defendant of a fair trial. Id. at 48. It is well established "[a] prosecutor may respond to an issue or argument raised by defense counsel[,] [but] [h]er response to an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996). In reviewing such a response, we "not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985), certif. denied, 130 N.J. 393 (1991)). "Prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (citations and quotation marks omitted).

Here, the prosecutor's remarks responded to defense counsel's assertions questioning the weapon's connection to defendant. Even if the prosecutor's remarks are not wholly based on evidence within the record, we do not find them inappropriate or unfair in light of defense counsel's attack. Young, supra, 470 U.S. at 12-13, 105 S. Ct. at 1045, 84 L. Ed. 2d at 11 ("[T]he import of the evaluation has been that if the prosecutor's remarks were 'invited,' and did no more than respond substantially in order to 'right the scale,' such comments would not warrant reversing a conviction."). Moreover, the prosecution's remarks are inferable from Demaise and Minkel's testimony stating they each handled the weapon at the scene.

Lastly, defendant argues his sentence is excessive. Defendant received, in aggregate, a thirty-year term with thirteen years of parole ineligibility. In the present case, the trial court applied aggravating factor three, the risk that defendant will recidivate, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offense, N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court found no mitigating factors.

Appellate review of a trial court's sentence is guided by the three-factor test of State v. Roth, 95 N.J. 334, 364-65 (1984), which looks to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. In reviewing a sentence imposed by a trial judge, a reviewing court "may not substitute its judgment for that of the sentencing court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)). As the Supreme Court stated in Cassady:

[A]n 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. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.

[Id. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]

Defendant does not assert a violation of the sentencing guidelines, nor does he assert the aggravating and mitigating factors used in sentencing him were misapplied. We therefore only address whether the sentence shocks the judicial conscience. We find, given defendant's history of CDS offenses, his arrest only fifteen months after parole from serving four years of a nine-year sentence, his possession of a weapon during the commission of an offense involving drug distribution, and his level of involvement under the facts of this case, the sentence is not clearly unreasonable or conscience shocking.

Affirmed.