STATE OF NEW JERSEY v. PAUL JOHNSON, JR. a/k/a TONY DORCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0066-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL JOHNSON, JR. a/k/a

TONY DORCH,

Defendant-Appellant.

____________________________________________

June 21, 2012

 

Submitted June 12, 2012 - Decided

 

Before Judges Fisher and Grall.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0409.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant seeks reversal of his conviction of drug offenses based on, among other things, his contentions that the evidence was insufficient to support the verdict and that the prosecutor made incorrect statements to the jury as to what the evidence reflected. We find no merit in these and defendant's other arguments and affirm, although a remand is necessary to correct the judgment of conviction.

Defendant was indicted and charged with: conspiracy to commit second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:5-2; two counts of third-degree CDS possession, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); two counts of third-degree CDS possession with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and two counts of second-degree CDS possession with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Co-defendant Nicholas Dorch was also indicted and charged with the same offenses.

Defendant and Dorch were tried together over the course of three days. The evidence adduced at trial came from only witnesses called by the State, namely, the officers involved in the arrest and subsequent search, a chemist, who identified the seized substances as cocaine and heroin, and a city surveyor, who testified that the area where the events in question occurred was within 1000 feet of a school and within 500 feet of a public housing facility.

The evidence provided by these witnesses revealed that, on October 12, 2008, at approximately 10:35 p.m., a police detective of seventeen years experience was conducting surveillance on South 16th Street in Newark. The detective observed an unidentified male wearing headphones approach defendant, who was standing in front of his home, counting money. Dorch was observed "pacing up and down" in the vicinity. Words were exchanged between defendant and the man wearing headphones, and they "gesture[d] to each other." The detective could not hear what was said. Dorch then walked into an alleyway two houses down from defendant's location, where he was observed reaching behind and picking up items from behind a discarded door lying in the alley. Dorch returned and handed the retrieved items to the man with the headphones, who then walked away.

Following these observations, police arrested defendant and Dorch. Officers searched the area behind the discarded door in the nearby alleyway and recovered numerous bags and folds of cocaine and heroin. Defendant was found to be in possession of $608 and Dorch was in possession of $540.

After the State rested, defendant unsuccessfully moved for a judgment of acquittal. The jury later found defendant and Dorch guilty of all charged offenses.1 Prior to sentencing, defendant filed a motion for a new trial, which was also denied.

Following appropriate mergers, the trial judge sentenced defendant to an eight-year prison term on the second-degree public-housing convictions and a five-year prison term on the third-degree school-zone convictions. On the latter, the judge imposed four-year periods of parole ineligibility.2

Defendant appeals, arguing:

I. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE THE CHARGES ON THE INDICTMENT BEYOND A REASONABLE DOUBT, THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL CONSTITUTES AN ABUSE OF DISCRETION.

 

II. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL CONSTITUTES A MISCARRIAGE OF JUSTICE.

 

III. THE PROSECUTOR COMMITTED MISCONDUCT AT TWO KEY PHASES OF THE TRIAL BY KNOWINGLY MAKING A SUBSTANTIAL MISSTATEMENT OF FACT, WHICH DEPRIVED THE DEFENDANT OF HIS RIGHTS OF DUE PROCESS AND A FAIR TRIAL. U.S. Const., Amends V, VI, XIV; N.J. Const. Art. I, 10.

 

A. The Prosecutor Deliberately Misstated The Facts In Evidence.

 

B. The Court's Curative Instruc-tion Was Woefully Inadequate.

 

C. The Prosecutor's Deliberate Misstatements Of A Fact In Evidence Improperly Lessened His Own Burden Of Proof.

 

D. These errors cumulatively and collectively constitute a denial of defendant's due process and fair trial rights, thus warranting a reversal of his conviction.

 

IV. DEFENDANT'S SENTENCE IS EXCESSIVE.

 

We find insufficient merit in Points I, II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Points I and III. We also find no merit in Point IV, in which defendant argues that the judge gave too much weight to the aggravated factors contained in N.J.S.A. 2C:44-1(a)(3), (6), (9), while failing to find or weigh the mitigating factor contained in N.J.S.A. 2C:44-1(b)(11); however, even though defendant did not raise it, we observe that the judge imposed excessive four-year parole ineligibility periods on the third-degree school-zone offenses and remand for their reduction to three years.

In Point I, defendant argues that he was entitled to a judgment of acquittal because, in his view, the evidence does not support the verdict. This argument has no merit. To be sure, certain of the elements the State was required to prove required the jury to draw inferences because there was no evidence that defendant handed CDS to the man with the headphones; indeed, the man with the headphones was never located. Notwithstanding, the jury was entitled to infer that defendant and Dorch were working together and that the unheard conversation between defendant and the man with the headphones prompted Dorch to obtain something from behind the discarded door in the nearby alley. And the jury could also infer from the CDS obtained from behind the discarded door that Dorch had handed the man with the headphones CDS. In light of the evidence produced by the State, and the legitimate inferences the jury could draw from that evidence, the judge was required to deny the motion for acquittal. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

In Point III, defendant argues that his right to a fair trial was prejudiced by alleged misstatements made by the prosecutor in his summation. Certainly, the prosecutor's initial comment complained of was inaccurate. That is, during the argument on the motion for a judgment of acquittal, which occurred out of the jury's presence, the prosecutor argued that there was testimony that the police observed the man with the headphones "give currency" to defendant. The judge promptly corrected the prosecutor, recognizing that the testimony did not support the prosecutor's contention. This statement, of course, had no ability to prejudice defendant's right to a fair trial because it was a statement the jury did not hear.

During his summation, the prosecutor argued there "was an exchange" between the man with the headphones and defendant. Defendant promptly objected, arguing that there was no testimony to support that contention. The judge's instruction to the jurors was to remind them that their recollection of the evidence was controlling and that what counsel had or would say to them was just argument.

We find no error in the judge's handling of the situation. Indeed, we find no misstatement by the prosecutor. The testimony certainly supported the argument that there was "an exchange" -- that is, an exchange of words -- between the man with the headphones and defendant. The prosecutor's argument was consistent with the testimony and was not uttered in a manner to suggest to the jury that the State's witnesses had testified that either money or drugs physically passed between the man with the headphones and defendant.

In Point IV, as noted earlier, defendant only argued the excessiveness of the sentence imposed, claiming the judge failed to recognize the applicability of a mitigating factor. We find no merit in that argument. R. 2:11-3(e)(2). However, for the reasons expressed in our companion opinion in his co-defendant's appeal, we conclude that the judge unlawfully imposed four-year periods of parole ineligibility on the third-degree school-zone convictions. The parole ineligibility term a court is required to impose for a school-zone conviction is three years or a term between one-half and one-third of the sentence imposed, whichever is greater. N.J.S.A. 2C:35-7(a). As the maximum sentence for a third-degree offense is five years, N.J.S.A. 2C:43-6(a)(3), the mandatory parole ineligibility period for a third-degree school-zone offense cannot be greater than three years. Accordingly, the mandatory parole ineligibility terms imposed here must be reduced to three years. Although defendant did not raise this argument on appeal, we are authorized to sua sponte correct an illegal sentence. See, e.g., State v. Hammond, 231 N.J. Super. 535, 545 (App. Div.), certif.denied, 117 N.J. 636 (1989).

Affirmed with the exception that we remand for a reduction of the parole ineligibility terms in conformity with this opinion.

1Today, we also decided the issues raised in Dorch's appeal (No. A-2273-10) by way of a separate opinion.

2At that time, the judge also sentenced defendant on an unrelated indictment (No. 08-02-0646-I), as to which defendant had pleaded guilty to a third-degree CDS offense, to a three-year prison term in accordance with a negotiated plea agreement to run concurrently with the prison terms imposed in the indictment in question in this appeal.