STATE OF NEW JERSEY v. JEREMY INGRAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEREMY INGRAM,

Defendant-Appellant.

___________________________

February 28, 2014

Submitted October 2, 2013 Decided

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-09-2695.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction, following a jury trial, for drug possession and the eight-year sentence imposed. We affirm.

I.

On June 21, 2008, around 5:54 p.m., Troopers William Neumann and Gregory Austin were patrolling the Cramer Hill section of Camden as part of a crime suppression detail.1 Police had received complaints of narcotics activities in this area, although no specific individuals engaged in narcotics activities had been identified. As the troopers turned off River Road onto Biedman Street, they saw a black male, later identified as defendant, walking with a white female. The white female removed currency from her purse and gave it to defendant, who then began to reach in his waistband. As their vehicle reached the middle of the block, a Hispanic male to the left of the vehicle yelled, "'State boys,'" terminology Trooper Neumann testified is used to alert individuals of police presence. The two individuals separated and the troopers went directly to defendant, who "looked like whatever he was trying to get from his waistband he didn't get it all the way in." The troopers grabbed him and observed ten bags of suspected cocaine hanging out of his waistband. They placed defendant under arrest and then proceeded to arrest the Hispanic male, later identified as Ruben Enriquez.

By the time of trial, Enriquez had already entered into a plea agreement with the State. As part of the negotiated plea agreement, he agreed to testify against defendant on behalf of the State. He testified that on the day he and defendant were arrested, he had been speaking with a friend when he saw a marked State Police vehicle in the area, prompting him to yell to defendant, "hey Jay, State boys," because he believed defendant was selling drugs. Although he had seen defendant around the neighborhood, he indicated he did not know defendant well.

Defendant testified on his own behalf. He was in Camden on the day of his arrest because he had been en route to a job appointment, which had been arranged through a temporary employment service in Cherry Hill, where he lived. He took a bus from Cherry Hill into Camden with the intent to keep the 4:30 p.m. appointment. When he realized he was running late and also knew that others were vying for the temporary position, which would be filled on a "first come first serve" basis, he knew he would not get the job. He, therefore, decided to get off the bus and try to visit his niece and nephew, who lived in the Cramer Hill section of Camden.

While walking on Pierce Street, an unmarked green minivan, with tinted windows, pulled up and two African-American males and a Caucasian male, dressed in tactical gear, "hopped out like the A-team, actually like how they do in the movies," and then "slammed" him to the ground without saying anything. The men handcuffed him and seated him on the curb. They proceeded to ask him whether he worked for Ruben Enriquez. Defendant testified he "didn't know who he was" and "pled the Fifth Amendment." He explained that he "was totally unaware of what was going on. I didn't want to implicate him as being a drug dealer or a buyer, whatever I knew who he was, I knew what was going on, I was totally unaware of what was going on that day."

According to defendant, the police took the $120 he had on his person, a stainless steel lighter, and his belt, which matched the shoes he was wearing. They also took his hat and threw it away. The troopers were almost "ready to strip search [him] because they was (sic) aggravated they couldn't find no drugs" and repeatedly asked him, "Where's the drugs at? Where the drugs at? We know you're out here pushing drugs." One of the African-American males from the minivan, who approached where defendant was seated, was holding approximately sixty bags of drugs and asked him whether the drugs belonged to him. When defendant told him "no," the trooper responded, "Where the stash at? We just found this. We're going to put this on you."

Also during the trial, both Trooper Austin and defendant acknowledged they were familiar with each other. According to Trooper Austin, he had previously arrested defendant for loitering because defendant had been hanging out in front of a store with another individual who was selling drugs and was arrested on drug charges. Trooper Austin explained, "Jeremy had no purpose for being at the store. He was there for quite a while." Although defendant had explained to him that he was waiting for a ride, Trooper Austin testified that he "didn't fully believe him." Defendant testified that he clearly remembered Trooper Austin from the prior incident and knew that the trooper recognized him from that prior incident. He stated the loitering charge was downgraded to noise pollution.

A grand jury indicted defendant and co-defendant Enriquez on charges of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution and/or possession with the intent to distribute, a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and third-degree distribution and/or possession with intent to distribute a controlled dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three). The jury convicted defendant of the drug possession charge. At sentencing, the State filed a motion for imposition of a discretionary extended term, pursuant to N.J.S.A. 2C:44-3(a). The court granted the motion and after weighing both aggravating and mitigating factors and finding no mitigating factors, imposed an eight-year state prison term with a four-year period of parole ineligibility, together with appropriate fines and penalties. The present appeal ensued.

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

POINT I

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF THIRD-DEGREE POSSESSION OF CDS, THIRD-DEGREE DISTRIBUTION AND/OR POSSESSION WITH INTENT TO DISTRIBUTE CDS AND THIRD-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE CDS WITHIN 1,000 FEET OF A SCHOOL, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND DEFENDANT SHOULD BE GRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE.

POINT II

EVEN IF THE FACTS ARE NOT AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY FAILURE TO SUPPRESS EVIDENCE UNDER THE EXCLUSIONARY RULE BECAUSE

A. THE POLICE DID NOT HAVE

PROBABLE CAUSE TO ARREST AND;

B. EVEN IF THE POLICE HAD REASONABLE AND ARTICULABLE SUSPICION THAT A CRIME WAS TAKING PLACE OR ABOUT TO OCCUR, NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE SCOPE OF THE SEARCH OF DEFENDANT WITHOUT A WARRANT (Not Raised Below).

POINT III

THE PROSECUTOR'S COMMENTS WENT BEYOND THE FACTS PRESENTED TO THE JURY AND EXCEEDED THE BOUNDS OF FAIR COMMENT DENIGRATED THE DEFENSE AND BOLSTERED THE CREDIBILITY OF A WITNESS, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL (Not Raised Below).

POINT IV

DEFENDANT'S SENTENCE WAS EXCESSIVE.

II.

"A conviction will not be reversed unless the jury verdict clearly and convincingly constitutes a miscarriage of justice." State v. LaBrutto, 114 N.J. 187, 207 (1989). See also R. 3:20-1. "The responsibility for determining whether the guilt of the accused has been proved beyond a reasonable doubt rests with the jury[,]" and "[a]ppellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div. 1995) (citations omitted). Thus, "a reviewing court should not overturn the findings of a jury merely because the court might have found otherwise if faced with the same evidence." State v. Afanador, 134 N.J. 162, 178 (1993). Indeed, "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice. Unless no reasonable jury could have reached such a verdict, a reviewing court must respect a jury's determination." Ibid.

Here, the facts clearly support defendant's conviction for third-degree possession of cocaine. Defendant attacks the credibility of Troopers Austin and Neumann. However, "[t]he jury's fact-finding function is all-inclusive and encompasses the evaluation of the credibility of witnesses and the weight and worth of evidence." State v. Ingenito, 87 N.J. 204, 211 (1981). Moreover, it is well established that "[a] jury is not bound to believe the testimony of any witness, in whole or in part." State v. Muhammad, 182 N.J. 551, 577 (2005) (citation omitted). Jurors "may reject what in their conscientious judgment ought to be rejected and accept that which they believe to be credible." Ibid. It was for the jury to determine what parts, if any, of Trooper Austin's and Trooper Neumann's testimony were credible, and the jury's reasonable conclusion on this issue may not be disturbed on appeal.

III.

Defendant's Point II does not warrant discussion in a written opinion. See R. 2:11-3(e)(2). We merely observe that the arguments advanced in this point were not raised in pre-trial proceedings nor during trial and are, therefore, deemed waived. See R. 3:5-7(f); see also State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988) (observing "[i]t is now well-established that constitutional claims, such as Fourth Amendment rights, may be waived unless properly and timely asserted"); State v. Kim, 412 N.J. Super. 260, 268-71 (App. Div.) (noting "[d]efendants who seek to exclude evidence on constitutional grounds are required to file a motion to suppress the evidence in accordance with Rule 3:5 7, governing motions to suppress in the Law Division"), certif. denied, 202 N.J. 344 (2010).

IV.

In Point III, defendant contends the prosecutor engaged in prosecutorial misconduct in her opening statement by mischaracterizing the nature of the evidence that would be presented and did so as well in her summation by mischaracterizing what was actually presented. Specifically, defendant urges that there was no testimony that either trooper actually witnessed a hand-to-hand exchange of currency between him and the white female. Defendant additionally urges that the assistant prosecutor improperly bolstered the testimony of the State's witnesses and pejoratively referred to defendant as a three-time convicted felon.

Because defendant raised no objections to the assistant prosecutor's opening or summation or the particular question to Trooper Neumann, which defendant now finds objectionable, we review defendant's prosecutorial misconduct claims under the plain error standard. See R. 1:7 2 and R. 2:10 2; see also State v. Macon, 57 N.J. 325, 336 37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Determining whether a defendant has been denied a fair trial requires a reviewing court to consider the "tenor" of the trial as a whole. Ibid.

Measured under these lenses we find no prosecutorial misconduct. Trooper Neumann testified that "it appeared that the white female handed the accused currency." Trooper Austin testified that he "saw the white female take currency, some kind of paper currency from her purse and hand it to Jeremy Ingram, who then accepted same and began to reach in his waistband." The challenged comments did not deprive defendant of a fair trial, but merely reflect legitimate inferences within the factual parameters of the case. State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. dismissed as improvidently granted, 189 N.J. 420 (2007).

Nor do we conclude the assistant prosecutor committed prosecutorial misconduct when she stated, "The State submits that what the troopers testified to is what actually happened in this case" or requested that the jury judge Trooper Austin's credibility. Defense counsel in closing called into question the credibility of the State's witnesses. The assistant prosecutor's comments merely responded to this contention by the defense. See State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (holding that prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility), certif. denied, 182 N.J. 148 (2004). She did not vouch for their credibility as witnesses. Ibid. Moreover, it was the jury's responsibility to judge the credibility of the witnesses. Consequently, in requesting that it do so, her remarks were neither offensive nor egregious.

Defendant's remaining criticisms directed at the assistant prosecutor, including reference to the fact that defendant is a three-time convicted felon, her characterization that the case was not "overly complicated," and "will not take more than a few days to present," as well as his challenge to the eight-year extended custodial sentence are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 A crime suppression detail focuses on targeting sellers of narcotics in high crime areas.