STATE OF NEW JERSEY v. NYEEM YOUNGER

NOT FOR PUBLICATION WITHOUT THE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.

NYEEM YOUNGER,

Defendant-Appellant.

______________________________________________________

May 13, 2014

Submitted May 6, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-01-0082.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

At the conclusion of a three-day trial, a jury convicted defendant of two counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), two counts of third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and two counts of third-degree CDS possession with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The judge later granted the State's motion for an extended term and following the appropriate merger of all the convictions into one of the school-property convictions imposed a seven-year prison term, subject to a three-and-one-half-year period of parole ineligibility.

Defendant appeals, presenting the following arguments for our consideration:

I. [THE] LAY WITNESS OPINION TESTIMONY [OF A POLICE OFFICER] REPEATEDLY OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN[1] AND WAS NOT SUFFICIENTLY MITIGATED BY THE COURT'S CURATIVE INSTRUCTIONS (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10).

II. THE SEVEN-YEAR SENTENCE WITH THREE-AND-A-HALF YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

We find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject Point I for the following reasons.

In Point I, defendant complains of a number of instances when, in testifying about the circumstances that resulted in defendant's arrest, Jersey City Detective Scott Rogers described his observation of a "hand to hand transaction" between defendant and another individual. In seeking a new trial based on this testimony, defendant invokes the Supreme Court's holding in McLean and its impact on lay opinion testimony in such matters.

We initially observe that McLean did not create a per se ban on phrases such as "hand to hand transaction" or the like when uttered by lay witnesses. Instead, the McLean Court explained it was concerned with the circumstance where a police officer, "after giving a factual recitation," testifies "the transaction he or she saw was a narcotics sale." 205 N.J. at 461. That is not what occurred here.

Specifically, defendant refers to Detective Rogers's testimony when he was asked to explain what he observed prior to defendant's arrest. In the cited instances, the detective referred to seeing a "hand to hand transaction," "a transaction" and an "actual hand to hand." He never referred to this observation as constituting a "drug transaction," leaving it to other proofs to connect his observations to the crimes alleged.

Even though this testimony was not improper, in each instance cited by defendant in his appeal brief, defendant acknowledges his trial attorney objected, each objection was sustained, and the trial judge instructed the jury to disregard the detective's comments. Because jurors are presumed to follow such instructions, State v. Burns, 192 N.J. 312, 335 (2007); State v. Nelson, 155 N.J. 487, 526-27 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999), we assume the jury disregarded the detective's comments about the nature of what he observed on each occasion. In short, defendant complains that the jury heard a few comments, which the judge immediately struck and told the jury to disregard, when, in fact, the testimony was entirely proper. Consequently, we cannot conclude that the complained of circumstances, which only benefitted defendant, were capable of producing an unjust result.

Affirmed.

1State v. McLean, 205 N.J. 438 (2011).