A-0STATE OF NEW JERSEY v. RONALD JOHNSON

 
(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NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD JOHNSON,

Defendant-Appellant.

__________________________

Submitted April 23, 2013 - Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-06-01418.

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

 

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplement brief.

PER CURIAM

A jury convicted defendant Ronald Johnson of third-degree possession of crack cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a, but acquitted him of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3), and school zone possession with intent to distribute, N.J.S.A. 2C:35-7.1 Judge Albert J. Garofolo denied the State's motion to sentence defendant to a discretionary extended term, and instead sentenced defendant to an ordinary term of five years in prison, half to be served without parole. Defendant received 228 days of jail credit.

Defendant appeals from his conviction and from the sentence. He presents the following points for our consideration:

POINT I

OFFICER MAYER'S TESTIMONY THAT "WE RECEIVED INFORMATION THAT NARCOTICS WERE BEING SOLD AT A CERTAIN LOCATION ON BELLEVUE AVENUE," SPECIFICALLY [] BELLEVUE AVENUE, APARTMENT NUMBER [],2 CONSTITUTED INADMISSIBLE HEARSAY AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO A FAIR TRIAL. (Not Raised Below.)

 

 

POINT II

 

DEFENDANT'S SENTENCE IS EXCESSIVE.

 

In a supplemental pro se brief, defendant also raises these arguments:

POINT I

 

THE DEFENDANT WAS DENIED THE RIGHT UNDER THE SIXTH AMENDMENT CONFRONTATION CLAUSE TO CONFRONT THE STATE CHEMIST AT TRIAL.

POINT II

 

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE STATE'S LABORATORY CERTIFICATE WITHOUT SHOWING PRE-TRIAL RELIABILITY OF THE SCIENTIFIC METHODOLGY UNDERLYING THE REPORT JUSTIFYING THE REPORT'S ADMISSION WITHOUT A LIVE WITNESS.

 

POINT III

 

THE DEFENDANT'S CONSTITUTIONAL RIGHT OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WAS VIOLATED WHEN THE STATE DISCLOSED JUST A LABORATORY REPORT FORTY MONTHS AFTER THE DEFENDANT WAS CHARGED FOR CDS OFFENSES.

 

POINT IV

 

DUE TO THE STATE'S UNCONSTITUTIONAL SEARCH AND SEIZURE, DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED.

 

POINT V

 

THE LABORATORY REPORT WAS IMPROPERLY ADMITTED INTO EVIDENCE BECAUSE THE STATE FAILED TO ESTABLISH THE CHAIN OF CUSTODY THAT BROUGHT THE CDS EVIDENCE TO THE STATE POLICE LABORATORY WHERE IT WAS ALLEGEDLY TESTED.

 

Having reviewed the trial record we conclude that all of defendant's appellate arguments are without merit. Except as addressed herein, they do not warrant discussion in a written opinion. See R. 2:11-3(e)(2). We affirm the conviction and the sentence.

I

The most pertinent trial evidence can be summarized as follows. Officer Michael Mayer of the Atlantic City Police Department testified that on May 25, 2008, he and a fellow officer were on a plain clothes detail. He testified that they drove their unmarked patrol car to a specific address on Bellevue Avenue because they had "received information that narcotics were being sold" there. Shortly after Officer Mayer gave that testimony, the trial judge gave the jury a strong and detailed curative instruction. He told the jury that there was "incompetent evidence of what [the officer] stated" about why he reported to the scene on Bellevue Avenue, and they should "completely disregard" that testimony.

Officer Mayer further testified that when he arrived at the specified address, he saw defendant standing in front of the building. He decided to approach defendant because he believed there was an outstanding warrant for his arrest. The officer

admitted that he later learned the warrant had been "satisfied." He also clarified that it was a "traffic warrant."

However, at the time, acting under the mistaken belief that the warrant was open, he approached defendant. He observed that defendant looked "very surprised," put his hand in his pocket, and started knocking on the door to one of the apartments. When the door opened, defendant dropped something on the ground and "attempted to enter into the apartment."

Seeing that the object was a "brown plastic bag" which he thought might contain CDS, Officer Mayer retrieved it, field tested the contents, and preliminarily determined that the bag contained sixteen small ziplock bags of cocaine. After testifying in detail to the chain of custody, and his submission of the suspected drugs to the State Police laboratory, Officer Mayer testified, without objection, that the State Police laboratory issued a report showing that the contents of the bag tested "[p]ositive for cocaine."

The State also presented testimony from an expert witness, who opined that sixteen bags of cocaine, packaged as they were here, were more likely to have been possessed for purposes of distribution than solely for personal use. However, the jury evidently did not credit that testimony, because it acquitted defendant of the possession with intent charges.

II

Defendant first contends that Officer Mayer should not have been permitted to testify that he was in the area because the police had received citizen complaints that someone was selling drugs at the apartment on Bellevue Avenue. He contends that this was equivalent to telling the jury that an unnamed informant accused defendant of selling drugs, in violation of defendant's Sixth Amendment right to confront the witnesses against him. See State v. Branch, 182 N.J. 338, 351 (2005); State v. Bankston, 63 N.J. 263, 268-69 (1973). He argues that this error warrants reversal of his conviction. Since the issue was not raised at trial, we review the issue under the plain error standard. See R. 2:10-2.

We agree that the officer's testimony was inappropriate. See State v. Luna, 193 N.J. 202, 217 (2007). However, the trial judge promptly gave the jury a curative instruction to disregard it. And in his preliminary jury charge, the judge explained to the jury in some detail the importance of disregarding any evidence he ruled inadmissible during the trial. We find no basis to depart from our usual presumption that the jury followed the judge's instruction to disregard the officer's testimony. State v. Loftin, 146 N.J. 295, 390 (1996). Lastly, since the jury acquitted defendant of possession with intent to

distribute, and the evidence of simple possession was overwhelming, there is no basis for a finding of plain error. See State v. Macon, 57 N.J. 325, 336 (1971).

In his pro se brief, defendant claims the court should not have admitted in evidence the laboratory report identifying the substance as cocaine, without requiring the State to produce the chemist who analyzed the substance. See State v. Simbara, 175 N.J. 37, 49 (2002). However, nothing in the record before us indicates that the defense timely filed the required pre-trial notice concerning that issue. See N.J.S.A. 2C:35-19c (a defendant's failure to comply with the statutory time limit constitutes a waiver of objection to admission of the lab report at trial).

On the first day of trial, defense counsel questioned whether the lab report listed the correct amount of cocaine, based on his review of the identifying numbers on two different lab reports. However, the prosecutor explained that the two reports related to two different pending cases against defendant, and the numbers to which defense counsel referred were the case numbers. The judge accepted that explanation, which defense counsel did not refute. We find no merit in defendant's argument.

Defendant challenges his sentence as excessive. In light of his prior criminal record, there is nothing shocking to the conscience in the sentence imposed. See State v. Roth, 95 N.J. 334, 363-65 (1984). Nor can we find any abuse of discretion or other error in the sentence. See State v. Bieniek, 200 N.J. 601, 609-12 (2010).

Affirmed

1 In deciding pre-trial motions, the trial court granted defendant's motion to dismiss a charge of hindering his own apprehension, but denied his motion to suppress evidence.

2 We omitted the exact street address to protect the privacy of the residents.

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