STATE OF NEW JERSEY v. SHAWN WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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.

SHAWN WILLIAMS,

Defendant-Appellant.

______________________________________________________________

April 22, 2014

Submitted September 11, 2013 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-0893.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle Erin Ditzhazy, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following a two-day jury trial, defendant was convicted on an amended indictment of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one), third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count nine); and second-degree distribution of cocaine within a public housing zone, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count eleven).1 After granting the State's motion to impose a mandatory extended term sentence, the trial court merged counts one and nine into count eleven. On March 23, 2012, the court sentenced defendant on count eleven to an eight-year term of imprisonment with four years of parole ineligibility. We affirm.

The facts as adduced from the trial record are as follows. The Jersey City Police received complaints from residents at the Marion Gardens Housing Complex that individuals were regularly selling drugs beginning at about 6:00 a.m. On January 22, 2010, Officer James Lisi and perimeter units began surveillance of the area at about 5:00 a.m. At 5:30 a.m., Officer Lisi observed an individual, later identified as defendant, park a black Ford Explorer in the parking lot of the housing complex. Defendant walked into the courtyard and, after looking around, returned to the parking lot where he removed a key from his pocket to unlock a green Buick Century parked nearby. From the Buick, defendant retrieved a clear bag containing multiple small objects. Officer Lisi later testified at trial that the objects appeared "to be packaged like cocaine."

Officer Lisi, who had an unobstructed view aided by the use of binoculars, observed defendant walk back and forth between the Buick Century and the center courtyard, flagging pedestrians down as they walked by. He testified he only observed one hand-to-hand transaction at around 7:15 a.m. between defendant and an individual later identified as Antonio Celetino-Hernandez. When a perimeter unit officer stopped Celetino-Hernandez at Officer Lisi's direction, the officer recovered fifteen vials of cocaine from him.

At about 11:20 a.m., defendant got into the black Ford Explorer and drove away from the housing complex. Members of a perimeter unit stopped defendant at a nearby intersection after hearing a radio broadcast from Officer Lisi describing defendant. The officers arrested him and took him into custody. Although no drugs were found on defendant's person, the police recovered sixteen dollars in cash. One of the arresting officers seized defendant's car keys, including those to the Buick Century, and gave them to Sergeant Jack Redmond, who was at Marion Gardens.

Meanwhile, at the housing complex, Officer Michael Galvez looked through the outside rear window of the Buick Century and observed objects protruding from a plastic bag on the driver's side rear seat. Based on his training and experience, Galvez immediately identified the items as illegal drugs. Before obtaining the keys from Redmond, Galvez tried the door to the car, which was unlocked. Galvez opened the door and removed what he had seen through the window.

The items seized were later proven to be 296 glassine bags of heroin, 100 vials of cocaine, and approximately twenty-five grams of crack cocaine. At trial, Sergeant Christopher Robateau, an expert in the field of narcotics, testified that in his experience, he had never seen one person possess the amount of drugs recovered, which he valued at $6,000, for personal use. Defendant appeals from his conviction and sentence, raising the following issues for this court's review:

I. DEFENDANT'S CONVICTION FOR DISTRIBUTION OF COCAINE WITHIN A PUBLIC HOUSING ZONE SHOULD BE REVERSED BECAUSE THE UNTIMELY AMENDMENT OF THE INDICTMENT WAS NOT WITHIN THE CONTEMPLATION OF [RULE] 3:7-4.

II. OFFICER LISI'S TESTIMONY THAT DEFENDANT RETRIEVED OBJECTS FROM THE BUICK CENTURY THAT WERE "PACKAGED LIKE COCAINE" WAS IMPROPER LAY OPINION (Not Raised Below).

III. THE JURY INSTRUCTIONS ON "CIRCUMSTANTIAL EVIDENCE" WERE BIASED TOWARDS CONVICTION AND UNDERMINED THE PRE[S]UMPTION OF INNOCENCE (Not Raised Below).

IV. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING AN "EXTENDED TERM" ON DEFENDANT'S CONVICTION FOR DISTRIBUTION OF COCAINE WITHIN A PUBLIC HOUSING ZONE AND THE SENTENCE OF [EIGHT] YEARS WITH [FOUR] YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

(A) An Extended Term Sentence Cannot Be Imposed on Defendant's Conviction For Distribution of Cocaine Within a Public Housing Zone on Count Eleven.

(B) The [Eight] Year Base Sentence With [Four] Years of Parole Ineligibility Was Manifestly Excessive.

We have considered these arguments in light of the record and applicable legal standards, and conclude they lack merit.

A.

Defendant first contends the trial court improperly amended counts nine and eleven of the indictment to specify that defendant had been charged with possession and distribution of cocaine rather than heroin. Defendant argues the amendment was highly prejudicial, as he had fashioned his defense around noted inconsistencies between what the indictment stated and what Officer Lisi had testified to at a suppression hearing and at trial regarding the nature of the recovered drugs. We reject defendant's argument.

We review a trial court's decision to amend an indictment under an abuse of discretion standard. See State v. Reid, 148 N.J. Super. 263, 266 (App. Div.), certif. denied, 75 N.J. 520 (1977). The rules governing criminal practice expressly permit the amendment of an indictment to correct errors in form or description. Thus, Rule 3:7-4 provides:

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such an amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.

Our Supreme Court has long recognized the power of the court to amend an indictment. See State v. Stefanelli, 78 N.J. 418, 429 (1979) ("Where . . . time is not crucial either to the defense to or prosecution of a charged offense, an amendment changing or correcting a date is not objectionable."); State v. Witte, 13 N.J. 598, 607 (1953) ("The critical inquiry is whether the amendment would charge an offense not presented by the grand jury."), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954).

A court's amendment power, however, is limited to matters of form. Thus, an error in an indictment which goes to the substance of the offense cannot be corrected by amendment. See, e.g., State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988). A court also may not amend an indictment either to charge a more serious offense or to add a defendant. See State v. Koch, 161 N.J. Super. 63 (App. Div. 1978); Reid, supra, 148 N.J. Super. at 266.

Importantly, the specification of a fact related to the commission of the crime may be amended if that fact does not serve as an essential element of the crime. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:7-4 (2014); see also State v. J.S., 222 N.J. Super. 247, 258 (App. Div.) (amendment of a sexual assault charge permissible to change the specification of the particular intimate body part involved), certif. denied, 111 N.J. 588 (1988); State v. Lopez, 276 N.J. Super. 296, 307-09 (App. Div. 1994) (specification of deadly weapon used in commission of armed robbery is subject to amendment provided the change in the nature of the weapon does not expose defendant to enhanced penalty), certif. denied, 139 N.J. 289 (1995).

Here, the indictment originally charged defendant with distribution of heroin, N.J.S.A. 2C:35-5(b)(3) (count nine) and distribution of heroin within a public housing zone, N.J.S.A. 2C:35:7.1 (count eleven). After the State presented its testimonial evidence at trial, it requested an amendment to counts nine and eleven of the indictment. The State argued there was a typographical error in that the testimony both before the grand jury and at trial "indicated that the fifteen vials that were allegedly sold . . . by [defendant] to [Celetino-Hernandez] were cocaine and the indictment reads heroin."

In response, defendant, through counsel, suggested that an amendment to the charges would be highly prejudicial. Counsel argued that Officer Lisi had testified at a suppression hearing that he saw defendant retrieve heroin from the Buick Century. At trial, however, Officer Lisi testified he observed defendant collect objects appearing "to be packaged like cocaine." Counsel had been prepared to move to dismiss three counts of the indictment based solely upon Officer Lisi's inconsistent statements regarding the type of the narcotics he saw defendant take from the Buick Century.

As noted by the State, defense counsel did not cross-examine Officer Lisi on his inconsistent statements. Counsel stated she did not do so "because the statement here today helped my case. He said cocaine. Well in this indictment it says heroin. So why would I cross examine him regarding this inconsistency?" Despite defense counsel's explanation, the court agreed with the State that it was merely a scrivener's error in light of the evidence presented to both the grand jury and the trial jury:

Okay. Clearly, count one of the indictment charges Mr. Antonio Celetino[-] Hernandez with possession of cocaine. All the police reports and all the testimony before the grand jury indicated that Mr. Antonio Celetino[-]Hernandez was arrested with cocaine.

All the testimony before the grand jury and here before this court today and before the jury, indicated that [defendant] gave him those fifteen vials that the lab reports indicate were cocaine.

It is clearly obvious that it is a scrivener's error for anyone reading the indictment. Anyone reading the grand jury testimony would know that it was a scrivener's error and on motion by the [S]tate, would automatically be amended because it was a scrivener's error.

Defendant, through counsel, renewed his motion after trial. He argued that as a result of the change in the substance of the charges, he "was not afforded his fundamental right to be apprised of the nature and cause of the accusation against him." Thus, he was entitled to a new trial. The State countered that defendant had notice of the correct charges "through the use of discovery, through the drug labs[, and] through the additional testimony that was available to defense counsel[.]"

The court rejected defendant's post-trial motion, finding as follows:

Cocaine was in fact the drug that was presented to the grand jury. That would have been grand jury transcript page 8 . . . Defense counsel knew this and knew the heroin was what was testified to at the suppression hearing.

Thus[,] she had the opportunity to impeach the witness regarding his previous contradictory statements. Thus[,] this court affirms its granting of the state's motion to amend the indictment.

We conclude that in light of the testimony before the grand jury, the evidence recovered from Celetino-Hernandez, and the testimony elicited at trial, the trial court did not abuse its discretion in amending counts nine and eleven of the indictment. The foregoing evidence placed defense counsel on notice of the facts giving rise to all of the charges against defendant, which, in turn, gave counsel the opportunity to prepare an appropriate defense. See J.S., supra, 222 N.J. Super. at 258 (first count of indictment placed defendant on notice that regardless of which body part he was alleged to have violated, he would have had to defend against a sexual assault charge).

Moreover, the amendment did not alter the substance of the charges. At most, it constituted a specification of a fact, which did not serve as an essential element of the alleged crimes. Whether defendant was charged with distribution of cocaine within a public housing facility or distribution of heroin within a public housing facility is of no moment. The essential element of both the greater and the lesser-included offenses is the presence of any controlled dangerous substance. See N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-7.1.

Because no fundamental injustice occurred in amending the indictment to conform to the evidence, we discern no abuse of discretion.

B.

Defendant next argues Officer Lisi's testimony that the objects he observed defendant retrieve from the Buick Century appeared "to be packaged like cocaine" constituted an improper lay opinion. Because defendant did not object to the State's line of questioning eliciting Officer Lisi's response, nor to the response itself, we review defendant's contention to determine whether the court's allowance of such testimony was plain error, or error capable of producing an unjust result. R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010).

N.J.R.E. 701 governs the admissibility of lay opinions. The Rule therefore provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

[N.J.R.E. 701.]

As to the first requirement, perception has specifically been defined as the acquisition of knowledge "through the use of one's sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011); see also State v. Labrutto, 114 N.J. 187, 199-200 (1989) (permitting lay opinion based on observation). The second requirement "is limited to testimony that will assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue." McLean, supra, 205 N.J. at 458.

Our courts have delineated a boundary line between "factual testimony by police officers [and] permissible expert opinion testimony." Id. at 460. Under the former, a police officer is permitted to explain what he or she perceived through his or her senses. Ibid. Thus, factual testimony consists of a description of what the officer saw, including, for example, "that defendant stood on a corner, engaged in a brief conversation . . . reached into a bag . . . handed another person an item . . . and that the officer found drugs in the bag." Ibid. (citing State v. Nesbitt, 185 N.J. 504, 516 (2006)). Such testimony does not "convey information about what the officer 'believed,' 'thought,' or 'suspected[.]'" Ibid.

Under the latter, courts have permitted qualified experts "to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury." Ibid. (citing State v. Odom, 116 N.J. 65, 76 (1989)). To that end, "an expert may explain the significance of quantities of narcotics or its distinctive packaging, which are matters that would not otherwise be known by an average juror." Id. at 461. A police officer not qualified as an expert, however, may not testify about a belief that the transaction he or she saw was a narcotics sale. Ibid.

Here, Officer Lisi testified that while observing defendant on the morning of January 22, 2010, he saw defendant remove from the back of the Buick Century "a clear bag that contained multiple small objects which appeared to me to be packaged like cocaine." Post-trial, the court found Officer Lisi's testimony appropriate because he did not offer an opinion that the objects were in fact cocaine. Rather, the court found Officer Lisi had merely testified "about what he perceived and the actions he took based upon his perceptions."

While Officer Lisi's testimony was clearly based upon his observations and experience as a seasoned police officer, he nevertheless impermissibly offered a belief that what he had observed was in fact the beginnings of a narcotics sale. His testimony, in short, conveyed information about what he suspected defendant had taken from the car.

The court's error in permitting Officer Lisi's improper lay opinion, however, is harmless in light of Robateau's proper expert testimony. Robateau, who the State qualified as an expert in the field of narcotics over no objection from defendant, testified that the vials of cocaine recovered from the Buick Century were packaged in "the number one way" that cocaine was packaged in Jersey City. Because Robateau's expert testimony as to the distinctive packaging used in this transaction cured Officer Lisi's improper lay opinion, no unjust result occurred here. R. 2:10-2.

C.

We now turn to defendant's challenge to his sentence. Defendant argues the court erred in imposing an extended term on defendant's conviction for distribution of cocaine within a public housing zone, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count eleven). He further contends the court failed to acknowledge all applicable mitigating factors, thus leading to the imposition of a manifestly excessive sentence.

This court applies a deferential standard of review to a trial judge's sentencing determination. State v. Lawless, 214 N.J. 594, 606 (2013). Our role in reviewing sentencing decisions is therefore limited:

[A]n appellate court . . . can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We are required to affirm a sentence, even if we would have arrived at a different result, "as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).

We reject defendant's first contention. The record clearly indicates the State requested a mandatory extended term sentence on defendant's conviction for third-degree distribution of cocaine (count nine) in light of defendant's prior conviction for possession of marijuana in 2002. Although contested below, defendant concedes on appeal his eligibility for an extended term given his criminal history. The trial court granted the State's request, as it was obligated to do so under N.J.S.A. 2C:43-6f. See State v. Irrizary, 328 N.J. Super. 198, 202 (App. Div.) ("The extended sentence imposed by N.J.S.A. 2C:43-6[f] is mandatory."), certif. denied, 165 N.J. 562 (2000).

Contrary to defendant's position, the merger of count nine into count eleven, second-degree distribution of cocaine within a public housing zone, did not vitiate the application of an extended term. The record shows the court imposed the extended term on the lesser-included offense in count nine, which was also within the standard range for the merged second-degree offense. Because we discern no abuse of discretion, we defer to the trial court's decision to sentence defendant to eight years' imprisonment with four years of parole ineligibility.

In light of the record, we conclude defendant's remaining claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 The original indictment charged defendant with distribution of heroin, N.J.S.A. 2C:35-5(b)(3) (count nine) and distribution of heroin within a public housing zone, N.J.S.A. 2C:35:7.1 (count eleven).