STATE OF NEW JERSEY v. NAEEM BLUNT

NOT FOR PUBLICATION WITHOUT THE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.

NAEEM BLUNT, a/k/a

NAEM BLUNT AND NAHEEM BLUNT,

Defendant-Appellant.

_____________________________

Argued May 26, 2015 Decided July 30, 2015

Before Judges Simonelli and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-06-1170.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs).

Ryan M. Galler, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Barbara Drasheff, Special Deputy Attorney General/ActingAssistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Naeem Blunt was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3) (count two); and second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).1 The trial judge denied defendant's motion for judgment of acquittal pursuant to Rule 3:18-2 and motion for a new trial pursuant to Rule 3:20-1. At sentencing, the trial judge merged count one with count two and count two with count four and imposed a mandatory ten-year term of imprisonment on count four with a mandatory five-year period of parole ineligibility required for count two pursuant to N.J.S.A. 2C:43-6(f).

On appeal, defendant raises the following contentions

POINT I

BECAUSE "BERRY LANE PARK" IS NOT A PUBLIC PARK, THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] VIOLATED THE PARK ZONE STATUTE, N.J.S.A. 2C:35-7.1, AND HIS CONVICTIONS MUST BE REVERSED.

POINT II

[DEFENDANT'S] CONVICTIONS MUST BE REVERSED BECAUSE THE STATE FAILED TO PROVE THAT [DEFENDANT] HAD CONSTRUCTIVE POSSESION OF THE HEROIN FOUND IN THE BACK BEDROOM OF THE HOUSE.

POINT III

THE JUDGE'S REFUSAL TO PROVIDE THE JURY WITH AN ADVERSE-INFERENCE CHARGE BECAUSE [THE POLICE OFFICER] FAILED TO PRESERVE NOTES USED TO WRITE HIS REPORT DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT IV

IN SUMMATION, THE PROSECUTOR COMMITED MULTIPLE INSTANCES OF MISCONDUCT, THEREBY SHIFTING THE BURDEN OF PROOF AND DENYING [DEFENDANT] HIS CONTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT V

THE EXTENDED TERM OF TEN YEARS, FIVE YEARS WITHOUT PAROLE, FOR THE PARK-ZONE OFFENSE WAS MANIFESTLY EXCESSIVE.

We reject these contentions and affirm.

I.

The facts are straightforward. On March 18, 2012, police officers from the City of Jersey City Police Department went to a house on Van Horne Street to execute a warrant authorizing a search of the second floor. The house was located within five hundred feet of property known as Berry Lane Park, which was owned by the City of Jersey City (the City) and designated as a park since 1999. Prior to executing the warrant, the police saw defendant exit the house and enter a neighboring house. The police detained defendant after he exited the neighboring house.

A woman who lived in the house subject to the search allowed the police to enter. The police searched the second-floor rear bedroom and found thirty-three glassine envelopes containing heroin, men's clothing and a notice from the Borough of Carlstadt Municipal Court addressed to defendant at the house address. The police also saw the last names of defendant and the woman on the mailbox outside the house.

II.

The jury convicted defendant of possession of heroin with intent to distribute within five hundred feet a public park pursuant to N.J.S.A. 2C:35-7.1(a). The statute provides as follows, in pertinent part

Any person who violates [N.J.S.A.] 2C:35-5(a)(1)][2] by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance . . . on or within 500 feet of the real property comprising . . . a public park . . . is guilty of a crime of the second degree[.]

[N.J.S.A. 2C:35-7.1(a).]

"Public park" is defined as "a park, recreation facility or area or playground owned or controlled by a State, county or local government unit." N.J.S.A. 2C:35-7.1(f).

Defendant contends in Point I that he did not violate N.J.S.A. 2C:35-7.1(a) because Berry Lane Park was not a "public park" under the statute. He concedes that the City owned and designated the land as a park, but argues it was not a "public park" because the City never developed it into a park or opened it to the public for recreational use and there were no children present at the time of his arrest; rather, the property was vacant land surrounded by a fence and "littered with junk." Defendant also argues that the word "recreation" in N.J.S.A. 2C:35-7.1(f) modifies "facility," "area" and "playground." He relies on State v. Lewis, 185 N.J. 363 (2005), State v. Ivory, 124 N.J. 582 (1991), and State v. Chambers, 396 N.J. Super. 259 (App. Div. 2007), certif. denied, 193 N.J. 586 (2008) to support his arguments.3

Because defendant's contention involves a question of law as to the meaning of "public park," our review is do novo. State in Interest of K.O., 217 N.J. 83, 91 (2014). Hence, we must look to the statute to determine the legislative meaning of "public park."

"It is well-established that the best indicator of legislative intent is 'the plain language chosen by the Legislature.'" State v. Perry, 439 N.J. Super. 514, 523 (App. Div. 2015) (quoting State v. Gandhi, 201 N.J. 161, 176 (2010)). When interpreting a statute, we should give the language its ordinary meaning and construe it "'in a common-sense manner.'" Ibid. (quoting K.O., supra, 217 N.J. at 91); see also N.J.S.A. 1:1-1 (stating that a statute's words should be construed according to their generally accepted meaning). We will not "add terms which may have been intentionally omitted by the Legislature, speculate, or otherwise engage in an interpretation which would avoid its plain meaning." Ibid. When a statute's plain language is clear and unambiguous, we should end our interpretive process and should not resort to extrinsic sources. Ibid.

However, if "'the statutory language is sufficiently ambiguous that it may be susceptible to more than one plausible interpretation, we may turn to such extrinsic guides as legislative history, including sponsor statements and committee reports.'" State v. W. World, Inc., 440 N.J. Super. 175, 189 (App. Div. 2015) (quoting Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012)). We may also "'turn to extrinsic guides if a literal reading of the statute would yield an absurd result, particularly one at odds with the overall statutory scheme.'" Ibid. (quoting Wilson, supra, 209 N.J. at 572). The legislative objectives that the statute seeks to achieve should also guide us. Ibid. "'Accordingly, when a literal interpretation of individual statutory terms or provisions would lead to results inconsistent with the overall purpose of the statute, that interpretation should be rejected.'" Id. at 189-90 (quoting Perrelli v. Pastorelle, 206 N.J. 193, 201 (2011)).

There is nothing unclear or ambiguous about the meaning of "public park" in N.J.S.A. 2C:35-7.1(f). By its plain language, the statute defines a "public park," in part, as "a park . . . owned or controlled by a . . . local government unit." N.J.S.A. 2C:35-.7.1(f). The City owns or controls Berry Lane Park and designated it as a park years before defendant's arrest. Accordingly, Berry Lane Park is a "public park" under the statute.

Lewis, Ivory and Chambers do not change this result. Lewis involved a defendant who sold drugs within a park zone but walked to a nearby location to retrieve the drugs. Lewis, supra, 185 N.J. at 365-66. The issue was whether there could be constructive possession within the park zone if the defendant is in the zone but the drugs are not. Id. at 367. The defendant argued it was the location of the drugs, not the person, which governed liability under N.J.S.A. 2C:35-7.1. Id. at 368.

Because N.J.S.A. 2C:35-7.1 contained no specific language regarding this issue, the Court looked to legislative history for guidance. Id. at 370. In so doing, the Court explained that "[i]n enacting the Comprehensive Drug Reform Act of 1986, the Legislature declared its 'intention . . . to provide for the strict punishment, deterrence and incapacitation of the most culpable and dangerous drug offenders' stating '[i]t is also the policy of this State to afford special protection to children from the perils of drug trafficking.'" Ibid. (second alteration in original) (quoting N.J.S.A. 2C:35-1.1(c)). The Court further stated that the purpose behind N.J.S.A. 2C:35-7.1 was essentially the same as the purpose behind the school zone statute, N.J.S.A. 2C:35-7, which is "to protect those, predominantly children, in and around schools and public parks from exposure to the drug culture and perils of drug trafficking." Ibid.

The Court held that constructive possession of a CDS within five hundred feet of a public park was sufficient for violation of N.J.S.A. 2C:35-7.1, and actual possession was not necessary. Id. at 373. This holding is not an issue here. In addition, the Court did not hold that children must be present to convict a defendant of violating N.J.S.A. 2C:35-7.1. Accordingly, Lewis does not apply.

Nor does Ivory apply. There, the defendant was selling drugs within one thousand feet of a school zone, contrary to N.J.S.A. 2C:35-7, which makes it illegal to possess with intent to distribute CDS "while on any school property used for school purposes[.]" N.J.S.A. 2C:35-7(a) (emphasis added). Therefore, the inquiry under N.J.S.A. 2C:35-7 is whether the property was school property on which the defendant possessed the drugs and whether the property was used for school purposes. Ivory, supra, 124 N.J. at 587-88.

In contrast, N.J.S.A. 2C:35-7.1 contains no language requiring that the property on which the defendant possessed the drugs was used as a park or for recreational purposes. The statute simply requires that the defendant be within five hundred feet of a park that is owned or controlled by a state, county or local government unit. The word "recreation" in the statute modifies "facility," and could arguably modify "area," but it does not affect "park," which precedes the word "recreation."

Likewise, Chambers does not apply. That case involved the definition of "public building" under N.J.S.A. 2C:35-7.1(f). Chambers supra, 396 N.J. Super. at 260. N.J.S.A. 2C:35-7.1(f) defines "public building" as "any publicly owned or leased library or museum." The defendant claimed that the museum at issue did not fall within the definition of a "public building" under the statute because it was not regularly opened to the public. Id. at 260-61. We declined to interpret N.J.S.A. 2C:35-7.1(f) in accordance with caselaw interpreting the school zone statute, N.J.S.A. 2C:35-7, that required that the property be "regularly, consistently, and actually" used for school purposes. Id. at 265. We recognized that N.J.S.A. 2C:35-7.1(f) did not define "museum, but found "no support in either the statute's legislative history or its plain language that a museum must be open to the public with regular, consistent hours to qualify as a public building. Public building is simply defined as a publicly owned or leased library or museum." Ibid. Rather, we found that the statute defined public building simply as "a publicly owned or leased library or museum." Ibid.

N.J.S.A. 2C:35-7.1(a) prohibits possessing a CDS with intent to distribute within five hundred feet of a public park. N.J.S.A. 2C:35-7.1(f) clearly defines a "public park," in part, as "a park . . . owned or controlled by a . . . local government unit." Unlike the school zone statute, N.J.S.A. 2C:35-7(a), N.J.S.A. 2C:35-7.1(a) does not require that the property be used as a park or for recreational purposes. Nor does N.J.S.A. 2C:35-7.1(a) require that children be present or that the park be open to the public. Accordingly, defendant was properly convicted of possession of a CDS with intent to distribute within five hundred feet of a public park.

III.

Defendant contends in Point II that the State failed to prove he had constructive possession of the heroin found in the second-floor rear bedroom. We disagree.

When a defendant challenges the sufficiency of the evidence, the court must decide

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Brown, 80 N.J. 587, 591 (1979) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).]

Our Supreme Court has held that "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." Id. at 592. However, the State cannot use its right to the benefit of reasonable inferences "to shift or lighten the burden of proof, or become a bootstrap to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt." Ibid.

"[A] person has constructive possession of 'an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Morrison, 188 N.J. 2, 14 (2006) (quoting State v. Spivey, 179 N.J. 229, 236 (2004)) (internal quotation marks omitted). "'[P]ossession cannot be based on mere presence at the place where contraband is located.'" State v. Scott, 398 N.J. Super. 142, 150 (App. Div. 2006) (quoting State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd, 133 N.J. 481 (1993)), aff d, 193 N.J. 227 (2008). However, "'[p]hysical or manual control of the [CDS] is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists.'" Id. at 151 (quoting Brown, supra, 80 N.J. at 597. Additionally, possession may be proved by both circumstantial and direct evidence. Ibid.

Here, the police officers observed defendant exit the house; defendant's last name appeared on the mailbox outside the house; there was a legal notice from a municipal court addressed to defendant at the house address; and there were men's clothing in the second-floor bedroom. Viewing this evidence in its entirety, and giving the State the benefit of all favorable inferences, the jury could find that defendant lived in the bedroom and therefore knew of the presence of heroin and had the intention and capacity to exercise control over it, and thus constructively possessed the CDS.

IV.

Defendant contends in Point III that the judge erred in denying his request for an adverse inference charge regarding the failure to preserve notes taken by the police officers at the scene of the search, which were incorporated into a final police report. This contention lacks merit.

Defendant claimed that because he disputed that he lived in the house, the municipal court notice addressed to him was essential to the State proving that he resided there. The police officers gave their notes of the search to Police Officer Walter Chowanec, who prepared a final report. The final report did not identify where the police found the notice.

Police Officer William Costigan testified that he found the notice on a television stand in the second floor rear bedroom. He also testified that he no longer possessed his notes and "assumed" they were in the trash. Officer Chowanec testified that he did not "maintain notes of that day;" however, his testimony was not clear as to whose notes he was referring and what he meant by "maintain." In addition, Officer Chowanec was not asked whether or not he had Officer Costigan's notes or whether the notes were lost or destroyed, and the supervising officer, Sergeant Michael McNally, was not asked about preservation of the notes. Further, the trial testimony did not reveal any definitive information concerning preservation of the notes.

The judge denied defendant's request for an adverse inference charge, finding there was no proof that the notes were actually lost or destroyed. The judge determined that, while in State v. W.B., 205 N.J. 588 (2011) "it was clear the notes were gone, here it was not clear that the notes were actually gone." Specifically, the judge found

Here, we have one officer indicating he took his notes. Passed them off to another officer.

The other officer was asked if he has notes. He said he didn't have notes. Was never specifically asked whether or not he had [Officer] Costigan's notes. There's just too much confusion and it's not clear in the record and to instruct on an adverse inference with the record that is less than clear on that point, I don't think it's appropriate.

"[L]aw enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports." W.B., supra, 205 N.J. at 607. "[I]f notes of a law enforcement officer are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded, after conference with counsel, to the facts of the case." Id. at 608-09 (2011) (emphasis added). We review a judge's denial of a request for an adverse inference charge for abuse of discretion. State v. Dabas, 215 N.J. 114, 132 (2013).

In Dabas, the prosecutor withheld an investigator's notes of a pre-indictment interview with the defendant that were incorporated in a final police report and then destroyed post-indictment. Id. at 117-18. The Court emphasized that once a defendant is indicted, the prosecution is obligated "to provide to the defense any statement made by the defendant that is memorialized in a police officer's notes." Id. at 118 (citing R. 3:13-3). The Court held the "[b]ecause of the flagrant violation of [Rule 3:13-3] . . . the trial court erred in denying the defense an adverse inference charge." Id. at 119.

Here, there was no clear evidence that the officers' notes were actually lost or destroyed or, if so, whether this occurred pre- or post- indictment. Given the paltry evidence suggesting that the notes were lost or destroyed, as well as the lack of evidence confirming that the notes were in fact lost or destroyed or when they were destroyed, we are satisfied there was no abuse of discretion in the denial of defendant's request for an adverse inference charge. See id. at 132.

V.

We have considered defendant's contentions in Points IV and V in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments about defendant's sentence.

Defendant contends that in finding aggravating factors three, six and nine,4 the judge double-counted his January 19, 2007 CDS conviction that served as the predicate of the extended term on count two, and failed to provide reasons other than his prior record. Defendant also contends the judge erred in failing to find mitigating factor eleven5 based on evidence showing he lived with his paramour and daughter, contributed financially to their household expenses, and contributed to his grandmother's expenses.

We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotation marks omitted).]

We have considered defendant's contentions and affirm substantially for the reasons the judge expressed at sentencing. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

Affirmed.

1 Prior to the trial, the State dismissed count three charging defendant with third-degree possession of a CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-7. After the close of the State's case, the trial judge granted defendant's motion for judgment of acquittal on count five charging defendant with fourth-degree possession of drug paraphernalia, N.J.S.A. 2C:36-3.

2 N.J.S.A. 2C:35-5(a)(1) provides that "it shall be unlawful for any person knowingly or purposely: (1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog[.]"

3 Defendant also relies on an unpublished opinion. However, unpublished opinions do not constitute precedent or bind this court. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.

4 "The risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9).

5 "The imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11).