STATE OF NEW JERSEY v. ANDRE WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1178-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE WILLIAMS,

Defendant-Appellant.

_________________________________

March 10, 2011

Submitted October 6, 2010 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0647.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Kate Simmons, Designated Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant on charges of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); and second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. The jury convicted defendant of all charges. At sentencing, the trial court imposed an aggregate nine-year sentence, with a four-year period of parole ineligibility, together with fines and penalties. The sentences imposed not only addressed the three narcotics offenses for which defendant was convicted but an accusation to which he had also pled guilty.

On appeal, defendant raises the following points for our consideration:

POINT I

THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO THE OPINION THAT DEFENDANT HAD DISTRIBUTED DRUGS IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (NOT RAISED BELOW).

POINT II

DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION AND . . . DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO ADDRESS THIS CONTENTION.

A. DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY HIS FAILURE TO OBJECT TO LEADING QUESTIONS POSED TO THE STATE'S EXPERT AS WELL AS THE PROSECUTOR'S ASSUMPTION OF FACTS NOT ENTERED INTO EVIDENCE.

B. DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY HIS FAILURE TO REQUEST THAT THE JUDGE GIVE THE MODEL JURY CHARGE REGARDING PRIOR INCONSISTENT STATEMENTS.

C. DEFENSE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY HIS FAILURE TO FILE A MOTION TO SUPPRESS THE EVIDENCE.

POINT III

THE NINE[-]YEAR JAIL SENTENCE FOR POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 500 FEET OF PUBLIC PROPERTY IN THE SECOND DEGREE WAS MANIFESTLY EXCESSIVE.

We reject each of the points raised. We are satisfied that the expert opinion provided by Officer Robert Liput (Officer Liput) was not reached based upon facts that were not in evidence, defendant's claims of ineffective assistance of counsel are either without merit or, more appropriately, the subject of post-conviction relief, and the sentence imposed was not manifestly excessive.

I.

The facts presented at trial on which the expert rendered his opinion disclosed that on the evening of October 17, 2006, around nine o'clock in the evening, officers in three vehicles were patrolling the area of Hawthorne Avenue where there had been complaints of narcotics activities. Officer Kevin Mathew (Officer Mathew), who was in plain clothes, exited his vehicle and was walking on Hawthorne when he observed an individual, later identified as Bilal Muhammad (Muhammad), defendant's co-defendant, seated in the driver's seat of an Acura parked in front of 344 Hawthorne. Muhammad was inspecting a clear plastic bag which Officer Mathew suspected was a controlled dangerous substance. At the same time, he also saw an individual, later identified as defendant, standing in the doorway of 344 Hawthorne. Officer Mathew displayed his badge and illuminated the interior of the vehicle with his flashlight. Muhammad "immediately tossed the item that he was holding in his hands to the ground, to the floor of the passenger side of the vehicle in front." Officer Jason West (Officer West), who was also on the detail and who had been closely following Officer Mathew, approached the vehicle from the driver's side and ordered Muhammad to exit the vehicle, where he was detained. Officer Mathew opened the front passenger door and retrieved the clear plastic bag that Muhammad had discarded on the floor of the vehicle. The bag contained fifteen smaller bags of suspected cocaine. During a search incident to his arrest, officers recovered $48 in cash from Muhammad.

Defendant remained in the doorway as the events were unfolding with Muhammad, until other officers stopped their vehicle in front of 344 Hawthorne. Officer Jose Dipaso (Officer Dipaso) testified that "[a]s [they] were pulling up[,]" defendant acted in a nervous manner, and he observed defendant "place a baggy in the crevice of the doorway" and then begin to move away from the doorway, walking eastbound on Hawthorne, until he and another officer detained him. Seconds later, Officer Dipaso returned to the doorway of 344 Hawthorne Avenue and retrieved a "bag[-]like item" from the "crease of the doorway[.]" The bag contained eleven clear bags of suspected cocaine. The drugs from the vehicle and the door crevice at 344 Hawthorne were field-tested and were positive for cocaine. Police found $132 on defendant following a search conducted incident to his arrest. Both officers testified that there was a light pole in front of 344 Hawthorne, a fact disputed by defendant's private investigator, Karyl Ryans, who testified that the pole to the west of 344 Hawthorne was a telephone pole and it did not have a light on top of it.

The State presented expert testimony on drug trafficking from Officer Liput, a member of the Essex County Sheriff's Department's Narcotics Unit. Neither defendant objected to Officer Liput's qualifications. He provided the jury with testimony regarding how cocaine is commonly packaged and the value of each small bag of packaged cocaine. He also explained to the jury the meaning of certain words in the context of drug activity and common practices of drug dealers. The State then posed a hypothetical question to him:

Subject A. is observed sitting in a vehicle in front of [a] store[]front. He is observing [sic] holding a clear bag containing suspected cocaine. Officers approached and Subject A. discard[s] bag to the floor of the car. That bag is found to contain [fifteen] smaller baggies contained at the same time as officers converge on the scene. Subject is seen standing in the doorway area in the presence of police officers and set [sic] item is found to contain eleven small baggies of suspected cocaine. Subject A. is later found with [$48] on his person and [S]ubject B. is later found with [$132].

Based upon the hypothetical, Officer Liput concluded that "both subjects possessed those drugs with intent to distribute them, sell them." The prosecutor then asked: "Since there's an apparent drug transaction in that particular action[,] why would you draw that conclusion?" Officer Liput explained:

Given the areas [sic] high narcotics trafficking area. Given that the amount of drugs and the way it was packaged, that they remained in the area, that in the hypo, that one of the subjects, Subject B. was then stashing the drugs into the doorway utilizing a stash location where normally a drug user that goes into a drug area to buy drugs would not utilize a stash location. Once he buys the drugs they leave.

Given all these facts, you know, together, it is my expert opinion that he did possess the drugs with intent to sell them.

Defendant argues the prosecutor introduced into the hypothetical facts that were not in evidence by phrasing his question with the language: "Since there's an apparent drug transaction . . . ?" The State responds that this is an error in the transcript and the question was actually: "Since there's [no] apparent drug transaction[,] why would you draw that conclusion?"

We first observe that there was no objection to the prosecutor's question at trial. We therefore review the claimed error under the plain error standard. Plain error is not simply any error but an error that is capable of producing an unjust result. R. 2:10-2. From our careful review of the record, we are satisfied that no error occurred that was capable of producing an unjust result. In reaching this conclusion, we do not find, as the State argues, that the phrasing was an error in transcription. The fact that there may be errors in other parts of the transcript does not establish, as an undisputed fact, that the transcriber did not accurately transcribe what the assistant prosecutor said regarding this particular question posed to the expert. It is also evident that defendant, in pointing to this language as a ground for reversing his conviction, does not concede that the question, as transcribed, was an error in transcription.

We are satisfied, however, that when the record is viewed as a whole, there is substantial evidence in the record that demonstrates the statement was more likely a misstatement on the part of the assistant prosecutor and certainly did not confuse the issues before the jury. There are a number of instances throughout the record that make it clear that there was no actual drug transaction and that the jury was not being asked to make such a finding.

Immediately following the hypothetical question, the expert opined: "Given all these facts, you know, together, it is my expert opinion that he [Subject B. in the hypothetical] did possess the drugs with intent to sell them." Cross-examination proceeded next and co-defendant's attorney asked the expert: "Is it uncommon in your experience to have a drug bust with no buyers?" The expert responded: "It does happen, yes sir. How common? I mean some days it does happen and some days it doesn't but it did happen."

Next, in defense counsel's summation, he told the jury: "Now, nobody was in that area. The officer doesn't observe any exchanges." Additionally, the assistant prosecutor, in his summation, stated: "[T]hey're both charged with possession of cocaine with the intent to distribute it, not that they actually distributed it but that he possessed it with intent to distribute." The assistant prosecutor continued:

He gave you in his expert opinion that in that hypothetical those people did have the drugs with the intent to distribute them.

The fact [that] there were no buyers or there were no observations, transactions, is of no moment. He told you it's not usual for there to not actually be an observed transaction. He also told you that buyers normally don't remain in an area, they buy their drugs and they leave[,] so the fact that they stayed there is further weight to the fact that they had intent to deal those drugs.

Given this record, we are confident the jury understood that there was no "apparent drug transaction" that occurred and that the assistant prosecutor's misstatement did not have the capacity to cause an unjust result. R. 2:10-2; see also State v. Feal, 194 N.J. 293, 312 (2008) ("To be sure, not every prosecutorial misstatement warrants a new trial.")

II.

Because we find no error capable of producing an unjust result in connection with the assistant prosecutor's misstatement, defendant's claim of ineffective assistance of counsel based upon defense counsel's failure to object to this misstatement is without merit. A claim of ineffective assistance of counsel requires a defendant to show (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey). The record clearly demonstrates that neither defendant was charged with distributing a controlled dangerous substance, nor was the jury misled into believing that actual distribution of drugs was an issue in the case. Therefore, trial counsel was not deficient, and the misstatement did not prejudice defendant. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Likewise, defendant's claim that trial counsel was ineffective because he failed to request a jury charge regarding prior inconsistent statements is equally without merit. Because defendant did not request the specific Model Jury Charge (Criminal) instruction on inconsistent statements, we review the court's failure, sua sponte, to give such an instruction under the plain error standard. R. 2:10-2. Accurate jury instructions are crucial to a fair trial, and failure to provide a clear and correct instruction may constitute plain error, that is, error capable of producing an unjust result. See State v. Koskovich, 168 N.J. 448, 507 (2001). However, not every omission or error in a jury instruction warrants reversal of a conviction. See State v. Holden, 364 N.J. Super. 504, 514 (App. Div. 2003) (holding that in "appropriate situations an omission or mistake in a jury charge may be deemed harmless") (citing State v. Wallace, 158 N.J. 552, 558-60 (1999)). Here, the court, in its general instructions on analyzing the credibility of the witnesses, instructed the jury to consider, among other factors, any inconsistent statements of the witnesses.

Defendant's final ground for reversal of his conviction, premised upon alleged ineffective assistance of counsel, is based upon trial counsel's failure to file a motion to suppress the drugs recovered from the doorway crevice. This claim is more particularly suited for a post-conviction relief proceeding because its resolution requires consideration of facts outside of the trial record. State v. Preciose, 129 N.J. 451, 460 (1992).

III.

Finally, we find no merit to defendant's claim that the sentence imposed was manifestly excessive. Defendant was convicted of two third-degree crimes and one second-degree crime. The latter offense calls for imposition of a presumptive custodial term of at least five years and no more than ten years. N.J.S.A. 2C:43-6(a)(2). Further, because defendant had previously been convicted of distributing drugs, he was subject to a mandatory extended term as well as a minimum term of parole ineligibility of at least one-third to one-half of the nine-year sentence the court imposed. N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7(c). Before imposing sentence, the court identified the aggravating factors it deemed relevant: (1) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior record and seriousness of the prior offenses for which he had previously been convicted, N.J.S.A. 2C:44-1(a)(6); and (3) the need to deter defendant and others from engaging in further violations of the law, N.J.S.A. 2C:44-1(a)(9). The judge also considered, in mitigation, that only a small quantity of drugs was involved. The court then engaged in a weighing of the aggravating and mitigating factors and concluded that the aggravating factors "preponderate[d]."

Based upon our review of the record, we are convinced that the trial court adhered to our sentencing guidelines in imposing defendant's sentence and the sentence imposed does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

A