STATE OF NEW JERSEY v. EDRES CARTER
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2837-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDRES CARTER,
Defendant-Appellant.
Submitted February 13, 2018 – Decided March 6, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
16-05-1391.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Edres Carter appeals his conviction and sentence
on drug possession and distribution charges. Based on our review
of the record in light of applicable legal principles, we affirm
defendant's convictions and sentence but remand for merger of
certain offenses.
I.
The most pertinent trial evidence and procedural history can
be briefly summarized as follows. On May 5, 2016, defendant was
arrested in Camden after two detectives in an unmarked car
witnessed him selling drugs to an unidentified white male. The
detectives were parked outside a Camden home, waiting for a suspect
in the house to exit when they observed the drug sale. The
detectives watched defendant enter an alleyway near the house and
remove some small items from a bag hidden behind the downspout of
the residence's gutter. Defendant then walked back to the white
male and handed him the items in exchange for cash, which defendant
put in his right front pocket. Defendant was arrested and
searched. The police found $100 and a bag of heroin in defendant's
pocket, and bags of cocaine and heroin were recovered from the
alleyway where defendant was previously observed.
A jury convicted defendant of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree
possession with intent to distribute heroin,
N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Two); third-degree
possession with intent to distribute heroin within 1000 feet of a
2 A-2837-16T3
school,
N.J.S.A. 2C:35-7(a) (Count Three); third-degree possession
of cocaine,
N.J.S.A. 2C:35-10(a)(1) (Count Five); third-degree
possession with intent to distribute cocaine,
N.J.S.A. 2C:35-
5(a)(1) and
N.J.S.A. 2C:35-5(b)(3) (Count Six); and third-degree
possession with intent to distribute cocaine within 1000 feet of
a school,
N.J.S.A. 2C:35-7(a) (Count Seven). Defendant was found
not guilty of second-degree possession of heroin within 500 feet
of a public housing facility, public park, or public building,
N.J.S.A. 2C:35-7.1(a) (Count Four); and second-degree possession
of cocaine within 500 feet of a public housing facility, public
park, or public building,
N.J.S.A. 2C:35-7.1(a) (Count Eight).
At sentencing, the trial judge merged the convictions for
Counts One and Five into the convictions for Counts Two and Six.
The judge then imposed an eight-year extended term prison sentence
on Count Three with a four-year period of parole ineligibility.
Concurrent four-year prison terms with two years of parole
ineligibility were imposed on Counts Two, Six, and Seven.
Defendant appeals, raising the following issues for our
consideration:
POINT I
[DURING] SUMMATION, THE ASSISTANT PROSECUTOR:
(1) URGED THE JURORS NOT TO ALLOW DEFENSE
COUNSEL'S ARGUMENT ABOUT A LACK OF FINGERPRINT
EVIDENCE TO "MISLEAD" THEM, THEREBY IMPROPERLY
IMPUGNING DEFENSE COUNSEL FOR DOING HIS JOB,
3 A-2837-16T3
AND (2) MISINFORMED THE JURY AS TO THE LAW;
IN BOTH INSTANCES, THE JUDGE IMPROPERLY
OVERRULED DEFENSE COUNSEL'S OBJECTIONS
POINT II
MERGER SHOULD HAVE BEEN ORDERED; MOREOVER, THE
SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE
II.
We turn first to defendant's contention that the prosecutor
exceeded the bounds of proper advocacy during summation by
improperly impugning defense counsel and misinforming the jury as
to the law. In considering this issue, we note that "[p]rosecutors
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). Prosecutors
"are duty-bound to confine their comments to facts revealed during
the trial and reasonable inferences to be drawn from that
evidence." Id. at 85. "In determining whether prosecutorial
misconduct is prejudicial and denied defendant a fair trial,
[courts] consider whether defense counsel made a timely and proper
objection, whether the remark was withdrawn promptly, and whether
the court ordered the remarks stricken from the record and
instructed the jury to disregard them." State v. Ramseur,
106 N.J. 123, 322-23 (1987) (citing State v. Bogen,
13 N.J. 137
(1953)).
4 A-2837-16T3
Prompt and effective instructions have the ability to
neutralize prejudice engendered by an inappropriate comment or
piece of testimony. State v. Wakefield,
190 N.J. 397, 440 (2007).
Whether or not a curative instruction can eliminate the danger of
such an error "focuses on the capacity of the offending evidence
to lead to a verdict that could not otherwise be justly reached."
State v. Winter,
96 N.J. 640, 647 (1984).
When making a closing argument, a prosecutor may not "make
inaccurate legal or factual assertions[.]" Frost,
158 N.J. at
85. Also, "a prosecutor is not permitted to cast unjustified
aspersions on defense counsel or the defense." Id. at 86.
However, "prosecutors are permitted to respond to an issue or
argument raised by defense counsel." State v. Johnson,
287 N.J.
Super. 247 (App. Div. 1996). Prosecutorial "misconduct does not
warrant reversal unless it is 'so egregious that it deprived the
defendant of a fair trial.'" State v. Jackson,
211 N.J. 394, 409
(2012) (quoting Frost,
158 N.J. at 83).
In his summation, defendant's attorney argued that the
State's failure to test the bags of drugs recovered from the
alleyway for fingerprints, demonstrated the State "was utterly
lacking . . . any effort to conduct a thorough and complete
investigation." In her summation that followed, the prosecutor
addressed the lack of fingerprint evidence as follows:
5 A-2837-16T3
What would fingerprints change in this case?
What would that change? Would that change
what Detective[s] Pineiro and Martinez saw?
Remember, they saw the defendant going
to the white plastic bag in the alley. Never
lost sight of him. They saw him pick it up,
they saw him take items out of it. They saw
him put it back down . . . this isn't a
burglary where an unknown individual broke
into a house, and they took items out of that
house. The police respond after the fact,
everybody's gone, and they're looking for
fingerprints because they want to know who did
it. They want to find the perpetrator. But
. . . that's not this case. In this case, he
was standing right there. They saw him with
their own two eyes. Please don't let that
mislead you.
[(Emphasis added).]
Defendant contends the prosecutor's comment, "[p]lease don't
let that mislead you," impugned defense counsel merely for doing
his job. The judge overruled defense counsel's objection,
reasoning the prosecutor was not arguing that defense counsel had
misled the jury, but rather was warning the jury to "factually not
be misled."
As noted, a prosecutor is afforded wide latitude in presenting
summations and is entitled to respond to arguments the defense has
made. Here, we share the trial judge's view that the State was
urging the jury not to be factually misled by the lack of
fingerprint evidence in light of the officers' testimony that they
personally observed defendant engage in a hand-to-hand drug
6 A-2837-16T3
transaction. Moreover, the prosecutor's comment came in response
to defense counsel's argument that the investigation was
incomplete. "A prosecutor's otherwise prejudicial arguments may
be deemed harmless if made in response to defense arguments."
State v. McGuire,
419 N.J. Super. 88, 145 (App. Div. 2011).
Accordingly, we conclude that the challenged remark does not
warrant reversal of defendant's convictions.
A.
Defendant next contends the prosecutor misinformed the jury
as to the law by stating in her summation that a school need not
be operational to convict him of a school zone offense. We do not
find this argument persuasive.
In State v. White,
360 N.J. Super. 406, 410-11 (App. Div.
2003), the issue was whether the Lakewood Community Center was
used for school purposes and hence fell within the ambit of the
school zone statute,
N.J.S.A. 2C:35-7. The State presented
evidence that the community center was used for an after-school
"homework club;" roughly one hundred elementary and middle school
students congregated there between 3:00 p.m. and 5:00 p.m. on
school days; and the board of education leased the property from
the township. Id. at 409, 412. We framed the issue as whether
"an objectively reasonable person could know that the school
property was used regularly, consistently, and actually for school
7 A-2837-16T3
purposes." Id. at 412 (quoting State v. Ivory,
124 N.J. 582, 592
(1991)). Ultimately, we concluded "the use of the center created
an issue that the jury was required to resolve." Ibid.
"In most cases, like that of a school itself, use 'for school
purposes' will be self-evident." State v. Thomas,
132 N.J. 247,
259 (1992) (quoting Ivory,
124 N.J. at 591-92). The Court in
Thomas noted:
the evidence produced concerning [the]
[s]chool was unambiguous and uncontroverted.
The "1000 [foot] drug free zone map" offered
by the State depicted school property labeled
. . . and [the arresting] [d]etective . . .
who had been a member of the Newark Police
Department for nine years, testified that that
property was the [s]chool. Based on the drug-
free zone map and [the detective's]
uncontradicted testimony that defendant's
offense had been committed within 1,000 feet
of [the] [s]chool, we concur in the conclusion
reached by the Appellate Division majority
that "as a matter of common experience, a
school is used for school purposes. The
inferred fact, use of property for school
purposes, reasonably flows from the fact
already established, the existence of a
school."
[Ibid. (quoting State v. Thomas, 256 N.J.
Super. 563, 569-70 (App. Div. 1992)).]
In the present case, the State presented a map showing the
Bonsall School lies within 1000 feet of where defendant was
arrested. Detective Pineiro, who has been a Camden police officer
for nineteen years, testified to the location of the school on the
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map and that the school was open and operational. Here, as in
White, where the property is a school,
[n]o evidence presented at trial suggested
that the [s]chool had ceased to be
operational, nor is the State obligated to
disprove every contingency to sustain its
burden. It need produce evidence sufficient
for a jury to conclude beyond a reasonable
doubt only that the [s]chool was used for
school purposes.
[Id. at 259-60.]
Ultimately, it was the jury's function to weigh the
credibility of the State's evidence regarding whether the school
was still in operation. During her charge to the jury, the trial
judge made clear it was the State's burden to prove beyond a
reasonable doubt the various elements of the school zone charge.
The jury was told the State must prove that the act occurred within
1000 feet of school property, which "means . . . property which
is used for school purposes." The judge also instructed the jury
that "[a]rguments, statements, remarks, openings and summations
of counsel are not evidence and must not be treated as evidence[,]"
and "[a]ny comments by counsel are not controlling." Juries are
expected to follow the judge's instructions. State v. Miller,
205 N.J. 109, 126 (2011).
9 A-2837-16T3
III.
Finally, we address defendant's sentencing arguments. Our
review of sentencing determinations is governed by a highly
deferential standard. State v. Fuentes,
217 N.J. 57, 70 (2014).
The appellate court must affirm the sentence
unless (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. (quoting State v. Roth,
95 N.J. 334,
364-65 (1984)) (alteration in original).]
Once the trial court has balanced the aggravating and
mitigating factors set forth in
N.J.S.A. 2C:44-1(a) and -1(b), it
"may impose a term within the permissible range for the offense."
State v. Bieniek,
200 N.J. 601, 608 (2010); see also State v.
Case,
220 N.J. 49, 65 (2014) (instructing that appellate courts
may not substitute their judgment for that of the sentencing court,
provided that the "aggravating and mitigating factors are
identified [and] supported by competent, credible evidence in the
record").
In sentencing defendant, the court found the following three
aggravating factors: the risk of re-offense (factor three),
N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal
10 A-2837-16T3
record and the severity of those offenses (factor six),
N.J.S.A.
2C:44-1(a)(6); and the need for deterrence (factor nine),
N.J.S.A.
2C:44-1(a)(9). The court found no mitigating factors.
The court appropriately pointed out several important
considerations bearing on its sentencing analysis. First, the
court noted that defendant had both a juvenile and criminal
history. The court further noted that defendant "has been
convicted of the exact same offenses two times prior to the within
offense[s]"; had violated probation; and "served periods of
incarceration[] with parole ineligibility" that failed to deter
him from committing the present offenses. Further, defendant's
prior drug convictions support the application of the mandatory
extended-term sentence pursuant to
N.J.S.A. 2C:43-6(f) and
N.J.S.A. 2C:43-7(c). In sum, the sentence imposed was manifestly
appropriate and by no means shocks our judicial conscience.
The State does, however, concede that a limited remand is
required for the purpose of merging defendant's convictions for
possession with intent to distribute with the school zone offenses.
Specifically, the State agrees that Count Two, third-degree
possession with intent to distribute heroin, should merge with
Count Three, third-degree possession with intent to distribute
heroin within 1000 feet of a school. Count Six, third-degree
possession with intent to distribute cocaine, should similarly
11 A-2837-16T3
merge with Count Seven, third-degree possession with intent to
distribute cocaine within 1000 feet of a school. We therefore
remand for merger of those offenses consistent with this opinion.
Affirmed, but remanded for entry of an amended judgment of
conviction reflecting the proper merger of offenses. We do not
retain jurisdiction.
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