STATE OF NEW JERSEY v. RODNEY ALSTONAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
RODNEY ALSTON, a/k/a
December 9, 2014
Before Judges Fasciale, Hoffman and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-09-1763.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2); third-degree possession of CDS on or within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7; and second-degree possession of CDS with intent to distribute while on or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. We affirm the convictions, but remand to allow for the appropriate mergers consistent with this opinion.
Defendant owned two pieces of property in Asbury Park that were "in the same fenced-in property." One lot contained a single-family residence and the other lot contained a driveway. Patrolman Lorenzo Pettway of the Asbury Park Police Department obtained a search warrant for the residence on September 23, 2008. One week later, Patrolman Pettway sought out defendant and located him with his red pickup truck in an alleyway, about six blocks from the residence. Patrolman Pettway advised defendant that the police were going to execute a search warrant for defendant's residence and that they were going to bring him there so that he would be present as the police conducted the search.
During the search of the residence, the police found a clear plastic bag containing what was later determined to be 27.31 grams of cocaine, a digital scale, and three cellphones. Defendant was then placed under arrest. He made no statements at that time, but later made numerous incriminating statements while the police searched the outside yard area, such as, "I was falling behind in my bills. That's why I was selling," and "You caught me at a bad time. Last year I would have more than what you found." He also asked multiple times, "Who set me up?"
When Patrolman Pettway first located defendant in the alleyway prior to the search, the police also seized defendant's red pickup truck for forfeiture purposes. Patrolman Pettway completed vehicle forfeiture paperwork for defendant's truck that same day. As Patrolman Pettway explained, when a vehicle is seized for forfeiture, it ultimately ends up in the county impound lot. Prior to that transfer, the police first ask the owner to remove any personal property from the vehicle because personal property is not subject to forfeiture.
At the time of defendant's arrest, Patrolman Pettway advised defendant to send someone to police headquarters to remove his personal property from his truck. Following his release on bail, the police contacted defendant multiple times about retrieving his personal property from his truck, but he never did. Finally, on October 12, 2008, Patrolman Pettway removed defendant's personal property from the truck. During this process, the officer uncovered an additional package of 8.95 ounces of cocaine in a compartment in the truck, which he discovered when he accidently removed an inset.
A Monmouth County grand jury charged defendant in an eight-count indictment with third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (Counts One and Five); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count Two); third-degree possession of CDS on or within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7 (Counts Three and Seven); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(1) (Count Six); and second-degree possession of CDS with intent to distribute while on or within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Counts Four and Eight).
The jury convicted defendant on Counts One through Four, related to the cocaine found in the home. However, the jury failed to reach a unanimous verdict on Counts Five through Eight, concerning the cocaine found in the truck.
The judge sentenced defendant to five years imprisonment with two and one-half years of parole ineligibility for Counts One and Three, and ten years of imprisonment with five years parole ineligibility for Counts Two and Four. The judge ordered these sentences to be served concurrently.
On appeal, defendant argues the following points
THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. THE EVIDENCE FROM THE SEARCH OF THE PICKUP TRUCK WITHOUT A WARRANT SHOULD HAVE BEEN SUPPRESSED PURSUANT TO BAILEY V. UNITED STATES, [___ U.S. ___, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013)]. THE EVIDENCE FROM THE SEARCH OF THE HOUSE SHOULD HAVE BEEN SUPPRESSED AS THE SEARCH WARRANT WAS FATALLY DEFECTIVE IN FAILING TO DESCRIBE THE PLACE TO BE SEARCHED WITH SUFFICIENT PARTICULARITY BECAUSE IT AUTHORIZED THE POLICE TO SEARCH 1223 WASHINGTON AVENUE IN ASBURY PARK, ON WHICH THERE WAS NO BUILDING. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947), ART. 1, PAR. 7).
A. THE SEARCH OF THE PICKUP TRUCK.
B. THE SEARCH OF THE HOUSE.
THE PORTION OF THE TRIAL COURT'S DECISION WHICH DENIED ALSTON'S MOTION TO SUPPRESS HIS STATEMENTS GIVEN WITHOUT MIRANDA WARNINGS WAS INCORRECT AND SHOULD BE REVERSED.
EVEN IF ADMISSIBLE, ALSTON'S STATEMENTS SHOULD HAVE BEEN REDACTED TO OMIT REFERENCES TO OTHER CRIMES. (NOT RAISED BELOW).
IRRELEVANT AND PREJUDICIAL TESTIMONY CONCERNING THE SEARCH WARRANT VIOLATED ALSTON'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10). (NOT RAISED BELOW).
AFTER PETTWAY'S TESTIMONY THAT HE LOOKED FOR ALSTON IN THE ALLEY BECAUSE HE "HAD INFORMATION" THAT ALSTON "DID DRUG TRANSACTIONS THERE," THE DEFENSE MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.
WHEN THE PROSECUTOR DENIGRATED THE DEFENSE AND VOUCHED FOR THE CREDIBILITY OF HER WITNESSES IN SUMMATION, SHE DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARA. 10. (NOT RAISED BELOW).
THE STATE'S DRUG EXPERT OVERSTEPPED THE BOUNDARIES OF STATE V. ODOM [ 116 N.J. 65 (1989)] WHEN HE BASED HIS OPINION, THAT DEFENDANT POSSESSED NARCOTICS WITH INTENT TO DISTRIBUTE, ON POLICE REPORTS PREPARED BY OTHER OFFICERS. (NOT RAISED BELOW).
THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED. THE SENTENCE IS BASED PRIMARILY ON ALSTON'S PRIOR RECORD. HIS MOST RECENT INDICTABLE CONVICTION WAS IN 1993, AND HIS PRIOR RECORD IS DEVOID OF VIOLENT OFFENSES.
A. [The sentences on Counts One, Two
B. [The sentence on Count Three].
We begin our analysis by addressing defendant's contentions that the judge erred in denying his motions to suppress the drugs seized from the residence and the truck, as well as his voluntary statements made to police officers during the execution of the search warrant. When reviewing a trial court's decision concerning a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). Legal conclusions by the trial court, however, are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
We reject defendant's argument that the issued search warrant for the residence failed to meet the particularity requirement set forth in the State and Federal Constitutions. Both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "in nearly identical language" provide that "no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized." State v. Marshall, 199 N.J. 602, 610 (2009); N.J. Const. art. I, 7; U.S. Const. amend. IV.
The particularity requirement is generally "uncomplicated" and "mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.'" Marshall, supra, 199 N.J. at 611 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). A warrant's description of a premises "is judged on a common sense basis rather than upon a super technical basis requiring elaborate specificity." Id. at 623 (citations and internal quotation marks omitted). The purpose of this requirement is to prevent general searches; it limits "'the authorization to search to the specific areas and things for which there is probable cause to search, [and] the requirement ensures that the search will be carefully tailored to its justifications[.]'" Id. at 611 (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1016, 94 L. Ed. 2d 72, 80-81 (1987)).
In this case, the search warrant stated the specific address to be searched and included the following description
A single-family, bi-level, colonial house, with salt/pepper shingle roof, and yellow siding. The premises has a white concrete porch with a smaller salt/pepper shingle roof. The front door is a white wooden door with a white metal storm door. To the right of the door, attached to the house is a gold colored, metal mailbox with a "No Trespassing" sign posted above the mailbox. Leading from the porch to the sidewalk is a concrete walkway. Surrounding the west side of the house and the back yard area is a broken, six-foot high, wooden, stockade fence. Also located on the west side of the property is a dirt and gravel driveway running from front to back of the property. Parked in the driveway is a blue semi-truck bearing New Jersey registration AK313K. Located on the east side of the house is a white, wooden, exit/entrance doorway.
Defendant argues the warrant failed the particularity requirement because the address listed in the search warrant was for the property with the driveway, not the residence, and the description could also be mistaken for a neighboring house. We disagree.
The description provided in the search warrant permitted police officers to reasonably ascertain that defendant's residence was the intended premises for the search. Patrolman Pettway composed the detailed description of the residence in the warrant affidavit, which was the same description included in the search warrant; he was also one of the officers who executed the warrant. See State v. Bisaccia, 58 N.J. 586, 592-93 (1971) (finding a warrant was valid and its description of the premises was sufficiently particular when the executing officer was also the affiant). Moreover, the incorrect address resulted from the absence of a house number on the residence, and the description of the premises was otherwise sufficiently detailed. We review the warrant's description of the premises on a "common sense basis" rather than a "technical basis requiring elaborate specificity." Marshall, supra, 199 N.J. at 623 (citation and internal quotation marks omitted); see also State v. Wright, 61 N.J. 146, 149 (1972) (stating "pinpoint precision is not demanded" of a search warrant). Because we are satisfied the warrant fulfilled the particularity requirement, we conclude the motion judge correctly denied defendant's motion to suppress the evidence seized from the residence.
We next address defendant's appeal from the denial of his motion to suppress the evidence seized from his pickup truck. Defendant asserts the search of his truck was illegal because the police possessed no warrant authorizing the search of the vehicle, and the truck's seizure arose from his own illegal seizure. We disagree. The truck was seized pursuant to forfeiture proceedings and the search constituted a valid inventory search. See State v. One 1994 Ford Thunderbird, 349 N.J. Super. 352, 355 (App. Div. 2002) (holding "searches of vehicles impounded in contemplation of forfeiture are to be judged by the rules governing inventory searches"). An inventory search involves a two-level inquiry: (1) "whether 'the impoundment itself is justified,'" and (2) the "'legality of the inventory.'" Id. at 365 (quoting State v. Mangold, 82 N.J. 575, 583 (1980)).
The forfeiture statute "recognizes a distinction between two kinds of contraband," prima facie and non-prima facie, "also known as derivative contraband[.]" State v. Seven Thousand Dollars, 136 N.J. 223, 233 (1994); N.J.S.A. 2C:64-1a. When seeking to forfeit derivative contraband, the State must prove by a preponderance of the evidence that the property facilitated or was intended to facilitate the commission of a crime, became or was intended to become an integral part of the criminal activity, or was the proceed of illegal activity. N.J.S.A. 2C:64-1a(2)-(4); Seven Thousand Dollars, supra, 136 N.J. at 233. There must be a "direct causal connection between the use of the property and the crime," and this connection must be "proximate and substantial[.]" Thunderbird, supra, 349 N.J. Super. at 370 (citation and internal quotation marks omitted). After determining the validity of impoundment, the legality of an inventory search must be determined by examining the "scope of the search," whether it follows departmental procedures, and if the owner was afforded the opportunity to remove his or her personal property. Id. at 365 (quoting Mangold, supra, 82 N.J. at 584).
There is sufficient credible evidence in the record to support the judge's finding that defendant's pickup truck was properly seized in contemplation of forfeiture because of its use in defendant's distribution of CDS. Patrolman Pettway testified that a confidential informant observed defendant driving the truck following a controlled drug transaction, as found by the motion judge. Patrolman Pettway also witnessed defendant drive away in the truck after a drug transaction and another officer witnessed defendant drive the truck to and from his residence on the day it was seized. Additionally, the subsequent inventory search of the vehicle was conducted pursuant to the Monmouth County uniform forfeiture procedures and defendant was given multiple opportunities and reminders to remove his personal property. The judge credited Patrolman Pettway's testimony that he inadvertently discovered the cocaine when he was removing papers from a storage area behind the driver's seat in the truck. The record supports the judge's finding that defendant's truck was "utilized in furtherance of unlawful activity, in this case distribution of CDS," and that the cocaine was legally discovered as part of a valid inventory search conducted after defendant had failed to timely remove his personal property. Accordingly, we conclude the motion judge correctly denied defendant's motion to suppress the evidence seized from his pickup truck.
Defendant also contends that the judge erred in denying his motion to suppress his voluntary statements made to the police during the execution of the search warrant. It is well-established that the Fifth Amendment's constitutional protection against self-incrimination extends its reach outside the courtroom to also shield defendants who are in-custody and facing interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980) ("[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.").
In this case, although defendant was in-custody at the time of his statements, he was not facing interrogation. Defendant voluntarily made these statements unprompted by the police officers, he did not face any questioning, nor were any words or actions of the officers "reasonably likely to evoke an incriminating response" from defendant. Innis, supra, 446 U.S. at 301, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308. The judge found Patrolman Pettway's testimony credible and denied defendant's motion to suppress because the statements were "sporadic." Deferring to the trial court's factual findings which are supported by sufficient credible evidence, we affirm the denial of defendant's motion to suppress these statements.
We also reject defendant's contention that the trial court improperly denied his motion for a mistrial following Patrolman Pettway's testimony concerning "information" about defendant's potential drug dealing location. During his testimony, Patrolman Pettway stated that he sought defendant in an alley because he "had information that that would be one of the areas where [defendant] would . . . deal narcotics from." Defendant moved for a mistrial, but the judge denied the request and instead issued the following curative instruction
The second part of the statement is with reference to that's where he was known to hang out and sell drugs or something like that. First part of what the detective said is admissible, that he was known to frequent the alley or be in the alley or something like that. [The objection to the second] part is sustained. You are to disregard it totally. It did not occur. I want it to be deleted from your collective recollections of the testimony from this point on.
Defendant argues that the judge should have granted the motion for mistrial because the officer's testimony created a prejudice that denied defendant a fair trial, as the statement was evidence of "other crimes" under N.J.R.E. 404(b) and needed to fulfill the four-part Cofield1 analysis. We disagree. Defendant incorrectly relies on Cofield, as that analysis is applied to determine the admissibility of evidence concerning other crimes. Cofield, supra, 127 N.J. at 334. Here, however, the statement was not admitted into evidence or used by the State.
Granting a motion for a mistrial "is an extraordinary remedy to be exercised only when necessary to prevent an obvious failure of justice." State v. Yough, 208 N.J. 385, 397 (2011) (citation and internal quotation marks omitted). Therefore, we "will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (citation and internal quotation marks omitted). The decision of "whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge." Yough, supra, 208 N.J. at 397 (citation and internal quotation marks omitted).
In this case, defendant's objection was immediately sustained by the judge who gave a curative charge and had the testimony stricken from the record. We find no mistaken exercise of the broad discretion afforded to the trial judge and affirm the denial of defendant's motion for a mistrial. The trial judge was in the best position to assess the situation and decide if a curative instruction was adequate to neutralize any prejudice. See ibid. Further supporting the lack of any prejudice against defendant and refuting defendant's assertion that he was denied a fair trial is the jury's inability to convict defendant on Counts Four through Eight. See State v. Bauman, 298 N.J. Super. 176, 209 (App. Div.), certif. denied, 150 N.J. 25 (1997) (stating "[i]n light of the fact that defendant was acquitted by the jury on three counts, it cannot be concluded that [a] remark substantially prejudiced defendant's right to have the jury fairly evaluate his case").
Defendant also raises numerous issues for the first time on appeal. When an issue was not raised in the trial court, we apply the plain error rule. Thus, "defendant must demonstrate plain error to prevail." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). This requires us to disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Ross, 218 N.J. 130, 142-43 (2014). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We first address defendant's contention that the portions of his statements made to the police officers, even if admissible, should have been redacted to eliminate references to other crimes. We disagree.
N.J.R.E. 404(b) prohibits the use of evidence of other crimes "when offered solely to prove a defendant's propensity to commit crime." State v. DiFrisco, 137 N.J. 434, 497-98 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (citation and internal quotation marks omitted). Specifically, N.J.R.E. 404(b) provides that
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Evidence of other crimes may be admissible if it is (1) "'relevant to a material issue'"; (2) "'similar in kind and reasonably close in time to the offense charged'"; (3) "'clear and convincing'"; and, (4) "'probative value of the evidence must not be outweighed by its apparent prejudice.'" State v. Herrerra, 211 N.J. 308, 340 (2012) (quoting Cofield, supra, 127 N.J. at 338).
Evidence of other crimes may also be admitted if it is intrinsic evidence, which "is exempt from the strictures of [N.J.R.E.] 404(b)," and "need only satisfy the evidence rules relating to relevancy, most importantly the [N.J.R.E.] 403 balancing test." State v. Rose, 206 N.J. 141, 177-78 (2011). "'[E]vidence is intrinsic if it directly proves the charged offense'" and is therefore no longer evidence of "some other crime[.]" Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, __ U.S. __, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).
The State argues defendant's references to other crimes in his statements to the police officer are intrinsic evidence. We agree. Defendant's statements, explaining he had fallen behind in the payment of his bills, admitted that the drugs found by the police in the search of his home were for sale. Defendant's statements were direct evidence of defendant's knowing possession of the drugs with the intent to distribute. We therefore find no plain error.
Defendant next argues that testimony referring to the search warrant violated his constitutional rights of due process, a fair trial, and an impartial jury. We disagree and find no plain error as this was not "clearly capable of producing an unjust result[.]" See R. 2:10-2. A jury does not need to "be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt," unless such references are capable of misleading a jury. State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
In this case, the testimony concerning the warrant was relevant to the State's case and merely provided background information to the jury regarding the lawfulness of the police presence at defendant's residence. See ibid. (providing that evidence of a warrant might need to be placed before a jury to show that the police acted properly). Additionally, the warrant was a search warrant for the residence, and not an arrest or search warrant for defendant's person, and no reference was made during the testimony to a judge issuing the warrant. See ibid. (finding no issue with references to a search warrant for a defendant's telephone records and residence, and distinguishing it from State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992), where a reference to an unexecuted search warrant for a defendant's person suggested guilt). We therefore find no plain error concerning the references to the search warrant during testimony.
Defendant further argues that the prosecutor's statements during summation denigrated the defense and bolstered the credibility of the State's witnesses. Again, we find no plain error.
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Furthermore, "[t]he failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84.
Defendant argues the prosecutor's comments impermissibly criticized the defense for discrediting the State's case, which was the defense's job, and also argues that the comments implied the trial was a "sham" since defense counsel knew defendant was guilty. Additionally, defendant contends the prosecutor vouched for State witnesses' credibility with statements such as, "Does it make sense to you that [Patrolman] Pettway would go before the grand jury and intentionally lie to them about who saw the defendant prior to the search[?]" However, the prosecutor's comments were in response to defense counsel's summation, which suggested that the State was "trying to win" and "trying to keep things from [the jury]" so that the jury would not have the "whole truth" but would have the truth as the State "see[s] it to be." Additionally, defense counsel's summation included comments that "nothing that [Patrolman Pettway] says is believable" and "that essentially the oath means nothing to him."
We conclude the prosecutor's comments were within the permitted parameters. Our courts have found prosecutorial comments concerning the credibility of police officers were inappropriate when they "unfairly invite the jury to speculate concerning whether the effect of an acquittal would be to terminate the officer's career." Id. at 86; see also State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993) (finding a prosecutor asking if an officer's "career and the penalties that [the officer] would sustain for perjuring [himself] worth the conviction for a $20.00 bag of cocaine?" was inappropriate).
Taken in the context of defense counsel's statements, the prosecution was merely responding to the defense's assertions, such as the "oath means nothing" to Patrolman Pettway. Unlike cases where comments were found to bolster witness credibility, the prosecutor's remarks did not suggest that the witnesses should be believed solely because of their position as police officers and the risk that lying would damage their careers. We therefore conclude no plain error occurred because the comments were not "clearly capable of producing an unjust result[.]" R. 2:10-2.
The final issue defendant raises for the first time on appeal is that the testimony of the State's narcotics distribution expert exceeded the scope permitted by State v. Odom, 116 N.J. 65 (1989). Defendant contends the testimony fell outside the permitted scope for narcotics experts because it was based on a report prepared by other officers and not admitted into evidence. Our Supreme Court established standards for eliciting proper expert testimony in the context of narcotics in Odom, stating that hypotheticals may be offered to the expert, but should only refer to
the testimony and evidence adduced about the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or distribution.
[Id. at 81-82 (citation and internal
quotation marks omitted).]
The jury must also "be advised, following the presentation of the expert's opinion, of the basis for that opinion." Id. at 82. If an expert's testimony exceeds these standards, we must ask "whether the offending evidence might have affected the jury's verdict." State v. Miraballes, 392 N.J. Super. 342, 361 (App. Div.), certif. denied, 192 N.J. 75 (2007).
In this case, the prosecution presented the expert with a hypothetical that was within the boundaries set forth in Odom and the witness explained the basis for his opinion. Defendant contends, however, that the expert's reliance on other officer's reports not in evidence indicated his opinion on other officers' credibility. We disagree. The expert never discussed the credibility of other witnesses and only mentioned other reports in response to a question asked by defense counsel. We thus find no plain error occurred. The witness responded to a proper hypothetical, which did not unduly prejudice defendant under N.J.R.E. 403, and there is no evidence that the jury would have reached a different verdict if not for the reference to the report.
Finally, we reject defendant's contention that his sentence is excessive as to both its base terms and parole ineligibility. While we remand for the appropriate mergers of defendant's offenses, we otherwise affirm his sentence.
We are required to affirm a sentence as long as it "properly identifies and balances aggravating and mitigating factors" supported by credible evidence and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215 (1989). Additionally, under N.J.S.A. 2C:43-6b, a period of parole ineligibility is appropriate "where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors . . . ." If the sentencing judge determines that parole ineligibility is appropriate, the court "'shall state on the record the reasons for imposing the sentence[.]'" State v. Bessix, 309 N.J. Super. 126, 130 (App. Div. 1998) (quoting State v. Kruse, 105 N.J. 354, 359 (1987)).
We conclude that defendant's sentence was not excessive. The judge found aggravating factors N.J.S.A. 2C:44-1a(3) ("risk that the defendant will commit another offense"), -1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and -1a(9) (need for deterrence). He found no mitigating factors. Defendant's criminal record, including convictions for simple assault, possession of CDS, tampering with evidence, two counts of assault on a law-enforcement officer, possession of marijuana, and two other municipal court convictions, amply support the trial court's finding of aggravating factors three, six and nine. The record further supports the court's finding that no mitigating factors apply.
We are satisfied the judge made findings of fact concerning aggravating factors and the absence of mitigating factors that were based on competent and reasonably credible evidence in the record. The judge also properly balanced the aggravating factors against the nonexistent mitigating factors when he imposed the discretionary period of parole ineligibility, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
The State concedes that a limited remand is required to reflect the appropriate merger of offenses, which will not affect the aggregate sentence imposed. Count One, possession of cocaine, should be merged into Count Two, possession with intent to distribute. See State v. Wright, 312 N.J. Super. 442, 455 (App. Div.) (citing State v. Rechtschaffer, 70 N.J. 395, 411 (1976)), certif. denied, 156 N.J. 425 (1998). Additionally, Count Two should be merged into Count Three, possession with intent to distribute in a school zone. See State v. Blow, 123 N.J. 472, 472-73 (1991). Count Three should then be merged into Count Four, possession with intent to distribute within 500 feet of a public housing facility. State v. Parker, 335 N.J. Super. 415, 426 (App. Div. 2000) (citing State v. Davis, 68 N.J. 69, 81 (1975)).
We affirm the convictions, but remand for the judge to amend the judgment of conviction to make the proper mergers consistent with this opinion. We do not retain jurisdiction.
1 State v. Cofield, 127 N.J. 328, 338 (1992).