STATE OF NEW JERSEY v. MARQUIS SMITH

NOT FOR PUBLICATION WITHOUT THE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.

MARQUIS SMITH,

Defendant-Appellant.

_____________________________________

July 28, 2014

Argued May 19, 2014 Decided

Before Judges Kennedy and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-09-02373.

Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).

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

PER CURIAM

Following a four-day jury trial, defendant, Marquis Smith, was found guilty of four of fourteen charges, third-degree possession of heroin, N.J.S.A. 2C:35-10a (1) (count one); second-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (count three); second-degree possession with intent to distribute heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five); and second-degree possession with intent to distribute heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count seven). Co-defendant, Anthony Stewart, was acquitted of all charges.

Defendant was sentenced to an aggregate term of sixteen years with eight years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f) and 2C:35-5(b)1.

In his appeal, defendant raises the following points:

POINT I

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL FOLLOWING THE PRESENTATION OF THE STATE'S CASE IN CHIEF.

POINT II:

The trial judge ERRED IN SENTENCING DEFENDANT TO AN EXTENDED TERM OF IMPRISONMENT OF [SIXTEEN] YEARS IN NEW JERSEY STATE PRISON OF WHICH A MANDATORY EIGHT YEARS MUST BE SERVED.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We discern the facts from the trial record. On September 1, 2009, members of the Atlantic City Police Department were conducting an investigation into the illegal distribution of narcotics in the area of the Stanley Holmes Village housing project, in particular, an apartment located at City Place. Stanley Holmes Village was known to police as an "extremely high-crime area, well known for narcotics, weapons," and had been the unfortunate scene for "numerous homicides . . . in the past."

Detective Stephen Palamaro of the Atlantic City Police Department started his surveillance of the City Place apartment at approximately 7:15 p.m. When Palamaro began his surveillance, defendant was on the front porch of the apartment. At some point, Palamaro saw defendant "go in and out of this apartment several times." Palamaro conducted his surveillance "about twenty yards away," without the use of binoculars. The front porch dimensions were more "like a courtyard," and "there were other people in the area." Palamaro observed the defendant "[m]ostly hanging out" and "talking to people that were out in the courtyard."

After approximately thirty minutes of surveillance, Palamaro saw the defendant depart the location on foot. Palamaro followed defendant as he walked towards Martin Luther King Boulevard. Palamaro lost sight of him for a few minutes but spotted him again as he was walking with another man, identified as Nazir Allen1.

At approximately 8:00 p.m., Atlantic City Police Detective William Warner entered the apartment at City Place with other officers pursuant to a search warrant. The one bedroom apartment looked "lived in," but it was not occupied. Warner found "a large package of . . . heroin, located on the floor of the living room right in front of the couch." There appeared to be "well over 2,000 bags" of heroin. In the kitchen freezer, marijuana-laced phencyclidine (PCP) was found. Also, two handguns, additional heroin, money, scales and packaging materials consistent with distribution of narcotics were found in the bedroom. In addition, mail addressed to Stewart was found in the apartment.

Warner found other items in the apartment which he believed linked the defendant s presence to the apartment. They were "a caricature [drawing of the defendant hanging on the living room wall], a cell phone, and a jacket." Thus, he directed Palamaro to arrest defendant and bring him back to the apartment.

Palamaro followed the defendant. In a search incident to arrest, Palamaro found $233 in defendant's pocket, but no drugs, weapon, or keys were found.

Once defendant arrived at the apartment, "[h]e was very nervous . . . sweating profusely, [and] physically trembling." When the cell phone constantly rang, defendant stated it was his and asked if he could answer it. His request was denied. Among the packaging items found in the bedroom, was the defendant s cell phone box which contained "[w]hite rice." Warner explained that rice is often used "[to] keep [] the heroin dry so it doesn t ruin the product." Defendant also claimed the jacket was his. The apartment also contained other clothing, underwear, socks, and shoes, but Warner "d[id]n[']t have a clue who it belonged to."

Atlantic City Police Forensic Unit Detective Michael Tracy arrived at the apartment at 8:30 p.m., and recovered the revolver and semiautomatic handgun. The weapons were submitted to the New Jersey State Police for finger-printing, but no fingerprints were detectable. In addition, the large package of heroin found in the apartment had a hair "several inches long," and was submitted for DNA testing. It was stipulated at trial that the State lab report concluded "the hair from the heroin packaging could not be associated to [defendant or Stewart]."

According to Debbie Alston-Molley, the assistant housing manager at Stanley Holmes Village, to her knowledge, no one else resided in the apartment other than its lessee, Stewart. The lease prohibited anyone besides Stewart from living in the apartment. She claimed she knew everyone who lived in Stanley Holmes Village, but she did not know defendant, and had no knowledge that he resided at the apartment with Stewart. She testified that the apartment front door automatically locks once it closes.

After the conclusion of the State's case, both defense attorneys made motions for acquittal. In response to their motions, the prosecutor drew a distinction between the defendants, arguing:

[T]he State's case is stronger as it relates to Mr. Smith. [H]e is the last and only person seen in that apartment just prior to police making entry . . . his cell phone is in the apartment. It's ringing, indicative of the fact that he is likely coming back there . . . .

He's observed on the porch going in and out . . . . [There was] testimony that as soon as [he] walked in that front door, that particular package of C.D.S. was visible. [He] could not have been in that front door without knowing that it was there . . . .

[T]here's testimony that Mr. Smith left his brand-new jacket inside of that property and apartment . . . [and] [t]here's the caricature [of Mr. Smith] . . . .

The trial judge denied the motions for acquittal. With respect to the defendant, the trial judge found he had constructive possession of the drugs and weapons based upon his presence at the apartment, his personal property inside the apartment, and his access to the heroin in the living room. The judge ruled:

[G]iving the State the benefit of all reasonable inferences that could be drawn from its circumstantial case against the defendant [Smith] on the strength of personal items discovered, his presence at the scene before the execution of the search warrant, and the readily apparent view of the contraband as found, particularly the drugs and then the handguns found in places where one would be expected to put a weapon if one wanted to keep it from being discovered by others, all those facts and circumstances taken together, reasonable fact-finders could conclude beyond a reasonable doubt that the defendants are guilty of the offenses.

Defendant did not testify. However, Stewart testified in his defense. It was stipulated that Stewart leased the apartment when the search warrant was executed. Stewart stated that he gave Allen, his cousin, a key to stay in the apartment because when Allen got out of jail in June 2009, "he really had no place to live" and "was staying on the floor at my sister s house." To Stewart's knowledge, no one other than Allen lived in the apartment. He maintained that he did not know the defendant, and they met for the first time during a court appearance for this matter.

The jury found defendant guilty of the four charges related to the heroin located in the apartment's living room, possession of heroin (count one); possession with intent to distribute heroin (count three); possession with intent to distribute heroin within 1,000 feet of school property (count five); and possession with intent to distribute heroin within 500 feet of a public housing facility (count seven). Defendant was acquitted of the ten remaining charges related to the possession of CDS and handguns which were located in areas of the apartment other than the living room.

On September 14, 2012, the trial court merged counts one, five, and seven, with count three, and sentenced defendant to sixteenyears' imprisonmentwith eight years' parole ineligibility due to N.J.S.A. 2C:43-6(f) and 2C:35-5(b)1.

Defendant appeals the trial judge's denial of his motion for acquittal and imposition of sentence.

II.

In reviewing a motion for acquittal based on insufficiency of evidence pursuant to R. 3:18-1, our review is limited and deferential, and we apply the same standard that binds the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). Thus, it must be decided when viewing the evidence in its entirety, with the State having the benefit of all favorable inferences, and recognizing that such evidence need not exclude "every other hypothesis except that of guilt," State v. Brown, 80 N.J. 587, 598 (1979), whether there is sufficient evidence to find guilt beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967).

Defendant contends that the trial court erred in denying his motion for acquittal because the State did not prove that he possessed the heroin in dispute. Specifically, the State did not "demonstrate that the apartment belonged to defendant [] or that he occupied or used the apartment." Defendant argues that since no key to the apartment was found in his possession when he was arrested, there was no "evidence to explain how he could get inside the apartment to exercise any control over the drugs found inside [,]" given the door automatically locks once it closes.

Defendant further contends between the time Palamaro followed him and the police executed the search warrant at the apartment, a fifteen minute gap elapsed, police did not observe the apartment to see if anyone else exited the apartment before the search warrant was executed. Defendant concludes that "the State failed to prove that [he] was an individual who was able to control or terminate possession of the drugs found in the apartment." We are not persuaded by these arguments.

We affirm substantially for the reasons expressed by the trial judge. We only add the following.

To establish the defendant had constructive possession of the heroin requires that he had "the 'capacity' to maintain control of and the 'ability to affect' the item during a span of time." State v. Schmidt, 110 N.J. 258, 271 (1988). There must be "direct dominion and control over the [drugs] . . . ." State v. Roldan, 314 N.J. Super. 173, 187 (App. Div. 1998). "Constructive possession cannot be based on mere presence at the place where contraband is located." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd, 133 N.J. 481 (1993). There must be "intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by knowledge of its character." Brown, supra, 80 N.J. at 597 (1979).

Applying these standards, and viewing all the evidence in the light most favorable to the State, we are satisfied that defendant's motion for acquittal should have been denied. It can be reasonably concluded that the defendant had some control or interest in the apartment. He went in and out of the apartment three or four times within a half hour span before leaving the property. The 2,000 separate bags of heroin were found in obvious view in the living room, which is accessed by the front door. Defendant's cell phone and jacket remained in the apartment after he left the apartment. There was a caricature picture of defendant hanging on the living room wall. Defendant's cell phone box was found inside the apartment, containing white rice, which is used by drug dealers to keep heroin dry so that it doesn't ruin. When Palamaro brought defendant back to the apartment he was nervous, trembling and sweating profusely. Together, these facts evidence that defendant was staying in the apartment, had an intent to return, was aware of the heroin in the apartment, and had the ability to control the heroin.

Defendant argues that a jury could have concluded that he was not guilty based upon the evidence that he did not have an apartment key, and the absence of police surveillance on the apartment after he left and was followed by Palamaro. However, for purposes of a motion for acquittal, there need not be proof that every hypothesis be excluded in order to overcome such a showing. Brown, supra, 80 N.J. at 598.

Accordingly, there was no basis to grant defendant's motion for acquittal following the presentation of the State's case in chief.

Finally, we address defendant's contention that his sentence was excessive for second degree convictions.

On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Defendant argues that in granting the State's request for extended term, the trial judge imposed a sixteen year sentence with an eight year period of parole ineligibility that was equivalent to a first degree sentence. He asserts the trial judge failed to adequately discuss why aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a(3),(6), and (9), applied to his sentence. The trial judge merely referenced defendant's "lengthy and serious juvenile and adult record speaks of a person likely to reoffend and [can] only be deterred by the imposition of a substantial term of incarceration." Defendant argues his one previous municipal court conviction of marijuana possession, and his three convictions for third-degree offenses, unlawful handgun possession, heroin possession, and manufacturing, distributing, or dispensing heroin, were "not particularly lengthy or serious." Defendant also contends the trial judge should have considered mitigating factor eleven, N.J.S.A. 2C:44-1b (11) because a lengthy prison term would be an excessive hardship to his dependents, two young children and a seventy-two year old grandmother. We are not persuaded by these contentions.

The trial judge's decision to impose an extended term of imprisonment between ten and twenty years pursuant to N.J.S.A. 2C:43-6(f) and 2C:35-5(b)1 is not being challenged. The trial judge's decision to sentence defendant in the middle of that range given his prior convictions, and not applying mitigating factor eleven, is not shocking to our conscience nor an abuse of discretion. Accordingly, the sentence should not be modified.

Affirmed.

1 According to Det. Palamaro, Nazir Allen was murdered in an unsolved homicide before the trial began.