STATE OF NEW JERSEY v. AMEAN ELLIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMEAN ELLIS a/k/a

ELLIS AMEAN, ANDRE ELLIS,

SADOT ELLIS, AMEAN GREEN,

AL MEAN ELLIS,

Defendant-Appellant.

May 24, 2013

 

Submitted February 12, 2013 - Decided

 

Before Judges Alvarez and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1213.

 

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

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

 

Appellant filed pro se supplemental briefs.

 

PER CURIAM

Tried before a jury, defendant Amean Ellis was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and second-degree possession with intent to distribute a controlled dangerous substance in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2).1 At the sentence hearing on June 7, 2010, the trial court granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), merged defendant's second and third-degree convictions, and imposed a term of fifteen years imprisonment, subject to seven and one-half years of parole ineligibility, along with appropriate fines and penalties.

Defendant now appeals, and we affirm his convictions. We remand the matter for further consideration of the sentence, however, because of the State's failure to file the extended-term motion within fourteen days of the return of the verdict as required by Rule 3:21-4(e), and because the record is unclear as to the predicate offenses.

I

We glean the following facts from the trial record. The Woodbridge Police Department received a call regarding a disturbance at a motel at approximately 1:50 a.m. on April 22, 2008. When Officer Benjamin Stevenson2 arrived, he met defendant, who appeared to have been "severely beaten," in the motel lobby. Defendant explained to Stevenson that when he answered a knock at his door, two men forced their way in, punched and kicked him, and stole his wallet and cell phone. Defendant walked back to his room, accompanied by Stevenson, where the officers observed furniture "strewn about" and blood splattered on one of the beds. After defendant was taken out of his room to be transported to a nearby hospital, Stevenson noticed, on a dresser, fourteen small plastic bags containing a white powdery substance he believed was cocaine; he also saw marijuana sitting on a candy wrapper on a table. Stevenson seized the drugs and defendant was later arrested.

At approximately 10:30 p.m. that same date, Officer Dean Janowski was dispatched to that same motel, where the night manager escorted him to defendant's room and turned over a shopping bag filled with items that had been found there: two scales, three boxes of plastic sandwich bags, two pairs of scissors, and several individually packaged bags of cocaine. In total, there were thirty bags, each containing approximately a gram of cocaine, and two additional bags each containing approximately half a gram of cocaine.

During the trial, the State qualified as its narcotics expert Investigator Blaise DiPierro of the Middlesex County Prosecutor's Office. He testified that the fourteen bags of cocaine Stevenson seized each held close to a gram of cocaine and were "corner cut." The thirty-two bags Janowski retrieved were also corner cut. DiPierro opined that the number of bags, greater than would be possessed for individual drug use, were consistent with distribution.

Defendant, who has a prior criminal history, testified that he lived in Georgia with his family and had been staying in New Jersey to visit with relatives in the area. Sometime in the evening of April 21, 2008, he smoked a "Philly blunt" cigar filled with marijuana. He invited a woman named Tiffany, last name unknown, whom he had met at a convenience store on a previous trip to New Jersey, to spend the evening. After she arrived, she and defendant talked and drank beer until she received a phone call and went outside to her car. Shortly after her return, he heard a knock and a voice saying "police." When defendant opened the door, it slammed into his face. He blacked out, and when he recovered consciousness, found himself alone, on the floor, and bleeding.

Defendant went down to the motel lobby and asked for assistance. He agreed that when Stevenson arrived, he walked him back to his room. Defendant insisted that only the marijuana belonged to him and denied using cocaine. He claimed that the paraphernalia and drugs were not his, and could not explain their presence in the motel room. He also denied telling Stevenson that two men had robbed him of his wallet and cell phone.

Trial counsel objected to the admission of Janowski's and the expert's testimony regarding possession with intent, contending it would prejudice the jury's consideration of the fourteen bags of cocaine Stevenson found. She moved for a mistrial on that basis, asserting that "this jury has already been tainted with that information." Trial counsel also argued that no adequate foundation was established to warrant the admission of the second set of drugs discovered in the motel room because the State did not call any motel employees to testify about the discovery of the items. Counsel made a motion in limine and for a mistrial, attempting to prevent Janowski from testifying while simultaneously seeking a mistrial because the opening statements referred to the second set of drugs. The trial court denied both applications.

At the close of the State's case, trial counsel renewed her application for a mistrial. She argued that "the bell's been rung" because the State's entire case as to possession with intent rested on the later discovery of the thirty-two bags of drugs. In their absence, trial counsel contended, the jury could find there was no intent to distribute as to the first fourteen bags. The indictment does not separately charge defendant with possession with intent to distribute the fourteen bags, however. Count one charges defendant with third-degree possession, i.e., less than half-ounce. Only count two charges defendant with possession with intent to distribute cocaine in a quantity of half an ounce or more.3

In any event, the judge treated the application for a mistrial as if premised on the State's failure to present sufficient proofs of defendant's ownership of the second set of drugs. He said:

In this case the defense argues that there's no nexus. The Court begs to differ. This is a question of fact. These drugs, according to the testimony, were found the same day. In fact, not just the same day, approximately ten hours, within a half a day of the initial finding. They were secured.

 

The Court specifically asked the prosecutor to provide the drugs to the Court so the Court could look at the drugs to see if they are the same or similar in their appearance. The Court finds, for the record, that both the drugs found in the initial 19 bags . . .

 

[Prosecutor]: Fourteen bags, S-2.

 

THE COURT: Fourteen bags are, in the Court's mind, exceptionally the same, if not identical in packaging. They are both similar sizes of drugs, of quantity of drugs. They are both clear packaged corner cuts of a plastic bag. They are both tied off using the same wrap that the drugs are in. The packaging is for all intents and purposes from the Court's observations identical. The weights from the Court's observations are, and I've not weighed this, just by layperson's observations, identical. . . . [I]f they were exchanged one for the other, I would not be able to pick one out from the other.

 

So they're the same or similar packaging, same or similar size, same day, same drug. We're not talking about two different drugs. We're talking about the same drug. Granted, there's been no qualitative analysis. We don't know whether it's ten percent or 20 percent cocaine. But, again, the Court makes a finding, places on the record they look like identical colors. I'm not a color expert, but they look the same to the Court.

 

So they have very similar characteristics. Same characteristics, same room, same day, within ten hours, same size, same packaging, same drug. Door is open that was closed. It's a sufficient circumstantial nexus upon which the State may argue that they were possessed by the same person.

 

Is there sufficient proof to go to the jury? The Court finds there is. And accordingly, your motion for acquittal under State v. Reyes[, 50 N.J. 454 (1967)] is denied. Your motion for mistrial is denied.

 

In sentencing defendant, the court found aggravating factors three, six, nine, and eleven. See N.J.S.A. 2C:44-1(a)(3), (6), (9), and (11). The judgment did not mention factor eleven or that defendant was mandatory extended-term eligible.

II

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

POINT I

THE COURT ERRED IN REFUSING TO EXCLUDE EVIDENCE RELATING TO THE DRUGS FOUND IN THE SHOPPING BAG TWENTY HOURS AFTER ELLIS LEFT THE HOTEL ROOM.

 

POINT II

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE PRIOR TO TRIAL FOR SEVERANCE OF THE TWO DISTINCT DRUG CHARGES. (Not Raised Below).

 

POINT III

THE COURT IMPROPERLY SENTENCED DEFENDANT TO AN EXTENDED TERM, DESPITE THE PROSECUTOR'S FAILURE TO PROVIDE PROPER NOTICE OF ITS INTENT TO SEEK SAME. IN THE ALTERNATIVE, EVEN IF NOTICE WAS ADEQUATE, THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND MUST BE VACATED.

 

Defendant asserts the following in a pro se brief:

STATE[']SDE[CIS]ION TOIGNORE UNCONSTITUTIONAL CONSTRUCTION OF DRUG CHARGING, SHOCKS THE CONSCIENCE IN VIOLATION OF THE DEFENDANT[']S 4TH, 6TH, AND 14TH AMENDMENT UNDER THE SUBSTANTIVE DUE PROCESS CLAUSE.

 

THE STATE KNOWINGLY USED PERJURED TESTIMONY TO CONVICT THE DEFENDANT, IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL UNDER THE 6TH 4TH 5TH AND 14TH.

 

In "opposition to the Attorney General response brief," defendant raises the following in a second pro se submission:

THE STATE[']S PROSECUTION IS AV[OI]DING THE FACT THAT THE DEFENDANT WAS NOT ARRESTED FOR THE SO CALLED DRUG CHARGE, UNTIL A YEAR LATER: DE[CIS]ION TO IGNORE UNCONSTITUTIONAL CONSTRUCTION OF DRUG CHARGING, SHOCKS THE CONSCIENCE IN VIOLATION OF THE DEFENDANT[']S 5TH, 6TH, AND 14TH AMENDMENT UNDER THE PROCEDURAL AND SUBSTANTIVE DUE PROCESS CLAUSE.

 

III

Despite the language in defendant's first point heading, his principal contention of error is that the court should have severed the charges. He also asserts that the court's denial of the motions made by his attorney regarding Janowski's and the expert's testimony, and the effect admission of the second set of drugs would have on the issue of intent to distribute as to the first set of drugs, requires reversal. We do not address the latter point as defendant was not separately charged with possession with intent to distribute the fourteen bags, and the jury found defendant possessed cocaine with the intent to distribute in second-degree weight as to the thirty-two bags alone.

Motions for severance, which should be made pretrial pursuant to Rule 3:10-2, rest within the trial court's sound discretion, and are accordingly subject to an abuse of discretion standard on appellate review. State v. Brown, 118 N.J. 595, 603 (1990); State v. Pitts, 116 N.J. 580, 603 (1989).

As provided in Rule 3:7-6, "[t]wo or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged are of the same or similar character . . . or constitute[ed] parts of a common scheme or plan." Indeed, Rule 3:15-1(b) bars "separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial." In order to establish prejudice, a defendant must do more than merely claim it resulted from a joint trial. See State v. Moore, 113 N.J. 239, 274 (1988).

All the drugs were seized the same day from the same place within hours. The first fourteen bags taken from defendant's motel room looked "identical in packaging," "similar [in] size[]," each had "clear packaged corner cuts of a plastic bag," were "tied off using the same wrap that the drugs are in," and were the same drug as the next group of bags. The trial judge added, "if they were exchanged one for the other, I would not be able to pick one out from the other." Hence, we find no merit in the argument that the two sets of drugs lacked a factual nexus sufficient such that they were improperly addressed in one trial.

Furthermore, defendant does not identify the manner in which a joint trial prejudiced him. He was convicted of only one count of second-degree drug distribution, count two which jeopardy he would have faced had he been separately tried for the thirty-two bags seized in the second batch. The outcome was no different as a consequence of one trial than had there been two trials. If anything, defendant benefitted from disposition at a single trial because the judge merged the third-degree possession as to the fourteen bags into the distribution offense, and only sentenced defendant to one offense overall, that being the greater second-degree offense. Defendant thus avoided the possibility of a sentence on one third-degree weight crime for the fourteen bags, followed by a sentence on the second-degree drug distribution conviction for the thirty-two bags.

Additionally, the jury was instructed that it must separately consider the evidence relevant and material to each charge. Jurors are presumed to follow instructions. State v. Miller, 205 N.J. 109, 126 (2011). Hence the court committed no error in allowing a unified trial on the matters.

IV

Defendant contends his trial counsel was ineffective for having failed to file an application for severance prior to the commencement of trial. As we have said, no legal grounds for severance existed and severance might have prejudiced defendant. Nonetheless, consideration of ineffective assistance of counsel claims is ordinarily postponed to such time as defendant's direct appeals are concluded. The issue is best deferred. See State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007).

V

Finally, defendant contends that the court improperly sentenced him to an extended term, an argument with which we are constrained to agree. Rule 3:21-4(e) clearly requires a notice of motion seeking extended-term sentencing to be filed by the State within two weeks of conviction absent some showing of good cause. No motion was filed. No good cause was even argued. Trial counsel objected to the State's failure to file a motion although she declined the court's offer of a two-week postponement of the sentence. Tipping the balance in favor of a remand, and highlighting the rationale behind the rule's filing requirements, see State v. Martin, 110 N.J. 10, 14-17 (1988), is that the record lacks precise details regarding the convictions which make defendant extended-term eligible pursuant to statute as a previously convicted drug distributor. No certified judgments of convictions were presented to the trial judge. No presentence report was provided on appeal. For purposes of appellate review, the information we have is inadequate. Accordingly, we remand in order for the court to resentence defendant after the filing of a formal motion with certified copies of the relevant judgments of conviction appended in conformance with the rule.

VI

We find defendant's arguments in his pro se submissions to be so lacking in merit as to not warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed as to defendant's conviction; remanded for sentencing consistent with this opinion.

1 Defendant was initially also charged with disorderly persons possession of marijuana, N.J.S.A. 2C:35-10(a)(4). The judgment of conviction states that charge was dismissed.

2 Because Stevenson was about to be deployed by the military overseas, the videotape of his pre-trial motion to suppress testimony was played to the jury.

3 The indictment did not mention aggregation of quantities. See N.J.S.A. 2C:35-5(c). It is not clear why the verdict sheet required the jury to separately find whether the third-degree quantity was also possessed with intent to distribute, since that was not separately charged. The seeming confusion is not raised as an issue on appeal nor could it have prejudiced defendant given the indictment only contained one count of possession with intent in the second-degree weight range, and the quantity was satisfied by the thirty-two baggies later discovered in his motel room alone.