STATE OF NEW JERSEY v. STEVEN BRIMAGE

NOT FOR PUBLICATION WITHOUT THE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.

STEVEN BRIMAGE,

Defendant-Appellant.

October 15, 2014

Submitted October 7, 2014 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-0680.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (Count One); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Two); third-degree possession of CDS with intent distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Three);1 and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (Count Four). We affirm.

Officers William Contreras and Thierry Mark Lemmerling were patrolling an area known for high drug activity. They noticed defendant, who Officer Contreras recognized from a previous arrest and as a childhood neighbor. They pulled alongside defendant and Officer Contreras asked, "[W]hat's up?" Defendant did not respond. Officer Contreras ran a background check and learned that defendant had open bench warrants. They informed defendant about the active warrants, defendant ran, and they arrested him after a four-block chase.

The officers searched defendant and discovered fifteen "dime bags" of marijuana in defendant's left sock, two bags of marijuana in his right sock, one sandwich bag of marijuana in his jacket pocket, and fifty-three dollars in cash in his jeans' pocket. Defendant moved to suppress the evidence, which the judge denied.

The matter proceeded to trial and the parties produced expert testimony from competing forensic narcotics witnesses. The jury found defendant guilty of the aforementioned offenses. After the appropriate mergers, the judge sentenced defendant to an aggregate prison term of seven years with forty-two months of parole ineligibility.2

On appeal, defendant argues the following points

POINT I

THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW WAS VIOLATED BY THE PROSECUTOR'S ARGUMENT THAT THE EXPERT WITNESS DID NOT TALK TO THE DEFENDANT BECAUSE THE DEFENDANT WOULD HAVE IMPLICATED HIMSELF.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORAL MISCONDUCT (Partially raised below).

A. DURING OPENING STATEMENT THE PROSECUTOR IMPROPERLY USED ALLEGATIONS OF THE DEFENDANT'S CHARACTER AND CRIMINAL DISPOSITION TO PERSUADE THE JURY (Not raised below).

B. DURING CLOSING ARGUMENT THE PROSECUTOR DISCUSSED SENTENCING AND IMPROPERLY DISPARAGED THE LEGAL PROFESSION AND DEFENDANT'S EXPERT WITNESS, WHILE RENDERING HIS (THE PROSECUTOR'S) PERSONAL OPINION THAT THE DEFENDANT IS GUILTY (Partially raised below).

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH INTENT TO DISTRIBUTE SOLELY ON THE BASIS OF SHARING CDS (Not raised below).

A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT SHARING IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.

B. THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY ON THE LAW OF INTENT TO DISTRIBUTE CDS BY FAILING TO MAKE IT CLEAR THAT SHARING IS NOT DISTRIBUTION.

POINT IV

THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED (Not raised below).

A. THE TRIAL COURT ERRONEOUSLY ADMITTED ACCUSATIONS FROM ABSENTEE WITNESSES.

B. THE TRIAL COURT ERRONEOUSLY ADMITTED HEARSAY PAPER EVIDENCE PREPARED BY THE GOVERNMENT TO PROVE AN ESSENTIAL ELEMENT OF THE CRIMES.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, ONE-SIDED, PREJUDICIAL INSTRUCTION ON THE LAW OF CIRCUMSTANTIAL EVIDENCE (Not raised below).

POINT VI

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL POLICE DETENTION.

POINT VII

THE SENTENCE IS EXCESSIVE (Partially raised below).

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

B. THE TRIAL COURT UNCONSTITUTIONALLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE (Not raised below).

After a thorough review of the record and the parties' briefs, we are satisfied that defendant's arguments in Points II, IV, and V lack "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

I.

We reject defendant's first argument that the assistant prosecutor made an improper comment in summation that violated his Fifth Amendment right to remain silent. The assistant prosecutor's comment merely commented upon testimony that defense counsel elicited from defendant's expert witness.

On direct examination, defendant's expert witness testified that "my real understanding of the way that drugs are used and sold comes from those people directly involved in that. Over the last [thirty-two] years . . . I've talked to thousands of drug users and dealers . . . ." The expert opined that drug dealers do not walk around town with a bulge of marijuana in their pocket. He based this opinion on his discussion with "thousands of users . . . [and] dealers."

In summation, the assistant prosecutor commented on the this testimony by stating that

in this case [defendant's expert witness] didn't talk to his defendant, he didn't talk to any cops. He didn't do any investigation. . . . [Because] if he talks to the defendant[,] or any other defendant which he's going to hopefully give a favorable report to, do you really think they're going to admit to him that, yeah, I possessed it with intent to distribute? No because [defendant's expert witness] can't write the report and he can't help [defendant]. . . . You got to look at all the facts and circumstances, and he didn't even ask that.

Defense counsel objected and the judge gave an agreed-upon limiting instruction to the jury that what either counsel said was not evidence. In the final charge, the judge also emphasized that defendant had the right to remain silent and that the State had the burden of proof.

To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). In making this assessment, we must "consider[] 'the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Indeed, our Supreme Court has recognized that "criminal trials [often] create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (second alteration in original) (quoting Bucanis, supra, 26 N.J. at 56).

We conclude that the remark was not so improper that it deprived defendant of a fair trial. Rather, we consider the fleeting remark as fair comment on the testimony from defendant's expert. A comment by an assistant prosecutor on defendant's silence, or a court's instruction "that such silence is evidence of guilt" violates defendant's Fifth Amendment privilege against self-incrimination. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965). Here, the assistant prosecutor did not refer to defendant's silence. Instead, in response to testimony from defendant's expert on direct examination, the assistant prosecutor referred to the expert's choice not to speak with defendant as it related to the scope of the expert's report. Even if such a reference was improper, we conclude that it was harmless in light of the overwhelming evidence of guilt and the limiting instruction provided by the court.

II.

Defendant argues for the first time that the assistant prosecutor improperly stated in his opening statement that

[y]ou're not going to hear any testimony in this case that [defendant] was seen taking drugs out of his sock and handing it to somebody for money or vice versa. Okay? It's possession with intent. Intent covers sale - - and possession with intent would cover sale of marijuana. It also covers sharing of marijuana, which the judge, when she reads you the law, will go through all that.

[(Emphasis added).]

We apply the plain error standard here because defendant did not object at trial. R. 2:10-2. "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)).

In giving the jury charge on intent to distribute, the judge did not mention sharing CDS. Instead, the judge stated that

intent to . . . distribute means the transfer, actual, constructive, or attempted, from one person to another of [CDS].

Now, it is not necessary that the drugs be transferred in exchange for payment or promise of money or anything of value. Intent means a purpose to do something, a resolution to do a particular act or accomplish a certain thing.

Defendant maintains that the assistant prosecutor's comment is improper because sharing CDS does not amount to an intent to distribute CDS. However, the assistant prosecutor's reference in his opening statement to sharing is not clearly capable of producing an unjust result. A defendant's intent to share drugs with another has been held sufficient to constitute possession with intent to distribute. See State v. Heitzman, 209 N.J. Super. 617, 620 (App. Div. 1986), aff'd, 107 N.J. 603 (1987). While we also previously held that "as a matter of law, the sharing of drugs by individuals in joint possession of the drugs, does not constitute 'intent to distribute' within the meaning of N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7," this case does not involve joint possession and therefore defendant's reliance on Lopez is misplaced. State v. Lopez, 359 N.J. Super. 222, 228 (App. Div.) (emphasis added), certif. granted sub nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003).

III.

Defendant argues that when Officer Contreras stopped him on the street it was not a "field inquiry," but rather an improper detention in violation of Terry,3 and that all evidence obtained during the stop should therefore have been suppressed. He contends that although there were warrants for his arrest, the warrants were irrelevant because the officers discovered them after the detention had already occurred.4

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions 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).

In denying defendant's motion to suppress, the judge stated

[T]he incidences leading up to the search, the fact that there was a warrant that was outstanding for the defendant . . . is substantive enough for the officer . . . within the probable cause requirement to approach and subsequently arrest the defendant.

. . . .

Once [defendant's] arrest begins or takes place, the officer has a right then to at least conduct a cursory search of the defendant in the form of a pat down. [Officer Contreras] testified that he was not the one to conduct the search but he was present and observed the entire process. His partner conducted the search and they conducted a pat down which resulted in when they reached the ankles of the defendant, there was a bulge in his socks. They, at that point in time, had the defendant or either took the socks off themselves and found several bags of [CDS].

The officer testified that the defendant had on two pair of socks and that the contraband was in between the two pair of socks . . .

Once they searched him incident to the arrest, they then found additional contraband in his jacket pocket, I believe he testified, a small dime bag and then some currency.

Here, the record supports the judge's finding that the police initially conducted a permissible field inquiry by stopping and asking defendant "what's up?" A field inquiry is "the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

"A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

The officers were entitled thereafter to search police records to see if there were any outstanding warrants. See State v. Sloane, 193 N.J. 423, 436-37 (2008) (holding that a check of a defendant's criminal record in the National Crime Information Center database was not a search under the Federal or State constitutions, and police did not need reasonable suspicion to conduct the check). And once they discovered defendant's warrants, the officers were permitted to arrest him. See State v. Jones, 143 N.J. 4, 14 (1995) (stating that "[o]nce a warrant is issued . . . it becomes an officer's duty to arrest the suspect," and that "[o]fficers have no discretion" in the matter (citations omitted)).

The police then conducted a reasonable search incident to defendant's lawful arrest. See State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006) (upholding the right of police, upon the arrest of a suspect, to "conduct a search of his 'person'" (quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)), certif. denied, 189 N.J. 426 (2007)).

IV.

Defendant argues that the judge erred by finding aggravating factors N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), (6) (extent of defendant's criminal record and seriousness of any offenses), and (9) (need for deterrence). He contends that the court should have found mitigating factor N.J.S.A. 2C:44-1b(1) (defendant did not cause or threaten serious harm), and (2) (defendant did not contemplate that his conduct would cause or threaten serious harm).

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court must consider the relevant aggravating factors and may consider the relevant mitigating factors. See N.J.S.A. 2C:44-1a and -1b. The court must then "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound 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 [were] supported by competent credible evidence in the record." Ibid.

At the sentencing hearing, the judge stated

Now, you indicate to me that what's on paper is not you. What I see on paper is a . . . [thirty-six]-year-old man who has been involved in the criminal justice system since he was at least [fifteen] years old.

. . . .

I have looked at this presentence report, and it is progressively worse. Starts out with a juvenile history; graduated into the adult world; probation; you don't do well on probation; you're sent to prison; you don't do well in prison; you're sent to prison again; you violate parole; you're sent to prison again. And here we are again. And you're asking me to accept that you smoke a little marijuana on the weekend, and I should allow that [to] happen because you are the unfortunate victim of the system.

And I don't see you as a victim. I see you as someone who, again, as long as you live, will have an excuse for not doing the right thing. And I don't see anything else. So again, I have looked through this document in an attempt to find something positive with regard to you. Again, I don't see anything. Whether or not there's potential, I think that's up to you to show at some point in time, but today is not that day. You have not shown me.

. . . .

I find that there are no mitigating factors, and I am not accepting that the defendant's conduct would [not] cause nor threaten serious harm, and he did not contemplate that his conduct would do so. I am in agreement that when you start running from police officers for whatever reason, the opportunity to cause harm is heightened; that he has been involved in this particular behavior for over [twenty] years; and he understands the dangerousness of being involved in this type of conduct.

There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.

1 This conviction is a third-degree offense because the violation involved less than one ounce of marijuana.

2 The judge sentenced defendant to an extended term of seven years on Count Two, N.J.S.A. 2C:43-7a(4), and a concurrent term of eighteen months on Count Four.

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

4 Defendant's contention that the police conducted an illegal strip search is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).