STATE OF NEW JERSEY v. MALIK L. CANTY
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5819-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK L. CANTY, a/k/a
CANTY FUQUAN,
Defendant-Appellant.
________________________
Submitted November 10, 2020 – Decided December 2, 2020
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-02-0089.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant was convicted of third-degree possession
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-
degree intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), (b)(3); and second-
degree intent to distribute a CDS within 500 feet of a public park, N.J.S.A.
2C:35-7.1. After merger, the court sentenced defendant to an eight-year prison
term with a thirty-two-month period of parole ineligibility and assessed fines
and penalties. Defendant raises the following issues on appeal:
I. THE COURT UNDERMINED MR. CANTY'S
DEFENSE BY FAILING TO INSTRUCT THE
JURY, CONSISTENT WITH THE MODEL
CHARGES, THAT THE IDENTITY OF THE
PERSON WHO COMMITTED THE CRIME IS AN
ELEMENT OF THE OFFENSE WHICH THE
STATE HAS THE BURDEN OF PROVING
BEYOND A REASONABLE DOUBT, AND THE
IMPACT DISTANCE HAS ON THE ACCURACY
AND RELIABILITY OF AN IDENTIFICATION.
U.S. Const., Amends. V, XIV; N.J. Const., Art. I,
Pars. 1, 9, 10. (Not Raised Below).
II. A REMAND IS NECESSARY TO CORRECT THE
JUDGMENT OF CONVICTION SO THAT IT
ACCURATELY REFLECTS THE COURT'S
ORAL PRONOUNCEMENT THAT COUNTS ONE
AND THREE MERGE INTO COUNT FIVE.
III. MR. CANTY'S SENTENCE IS EXCESSIVE,
UNDULY PUNITIVE, AND MUST BE
REDUCED.
A-5819-17T1
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After carefully reviewing the record and the applicable legal principles,
we affirm defendant's convictions and sentence but remand for the court to
correct the Judgment of Conviction (JOC) to accurately reflect the merger of the
possession and distribution convictions into defendant's conviction for
distribution within 500 feet of a public park and to correct any assessed fines
and penalties.
I.
In August 2015, the Plainfield Police Division (Division) received a tip
that two individuals were distributing heroin in Plainfield. This source also
provided a phone number that the individuals purportedly used to conduct these
narcotic transactions. Detective Michael Metz began text messaging the number
provided and arranged to purchase ten folds of heroin. In preparation for the
purchase, the Division equipped Detective Metz with a "wireless audio
transmitter" so other detectives could monitor the transaction. The Division also
provided Detective Metz with $80 of marked currency which would be used to
purchase the heroin.
Detective Metz was directed to an initial location but when he arrived, he
was instructed by text message to go to a second location at Cedar Brook Park.
Once there, Detective Metz received a phone call from a different number. The
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caller, who was later identified as Melissa McPartland (McPartland), instructed
Detective Metz to go to yet a third location in Plainfield on Laramie Road. After
arriving, Detective Metz pulled over and McPartland entered the front passenger
side of his undercover vehicle.
Once in the vehicle, McPartland proceeded to pull several glassine folds
of heroin out from her bra. McPartland then placed the heroin back in her bra
and told Detective Metz that it was "trash" and she was "going to wait for Ace
to bring [them] some better stuff." McPartland stated her boyfriend Arvin Rivas
(Rivas) was going to assist in the transaction and that Ace drove a red Pontiac.
Detective Metz then noticed Rivas approach the vehicle's front passenger
side and speak with McPartland. He handed Rivas $70 in marked currency
which was understood to be for the heroin. Rivas stepped away and used his
cellphone to send text messages and make calls. Detective Metz stated that he
could not hear Rivas's conversation but that he "seemed aggravated" during this
exchange.
When Rivas was finished with the conversation, he entered the vehicle's
rear seat and told Detective Metz that they had "to go to see Ace because [he]
[wa]sn't going to come to [them]." Rivas then instructed Detective Metz to drive
to Arlington Avenue. Upon arriving, Rivas told McPartland that he "needed
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something to put [the heroin] in." McPartland then handed Rivas the plastic
wrapping from a cigarette container. Rivas exited the vehicle and crossed
Arlington Avenue out of Detective Metz's view.
Sergeant Troy Alston, who was involved in the investigation, testified he
was able to hear Detective Metz's conversations through the wireless transmitter.
He described his observations after he arrived on Arlington Avenue:
Once Mr. Rivas got out of the vehicle and I got my
position . . . , he walked up to the gentleman in the gray
suit, who was standing in front of his residence.
[State]: When you say the gentleman in the gray suit,
is that someone in this courtroom?
[Sergeant Alston]: Yes. Mr. Canty.
[Attorney for defendant]: Stipulate, Judge.
The Court: Thank you.
Sergeant Alston testified that he observed Detective Metz's and Rivas's
interactions from "[a] couple houses" away or approximately "150 . . . , 200
feet." He stated there was nothing obstructing his view, that it had rained earlier
in the day but was no longer raining, and it was daylight out. At a suppression
hearing, Sergeant Alston testified that he was familiar with defendant from
previous narcotics investigations but did not so state at trial.
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Sergeant Alston testified that defendant was already standing on the
Arlington Avenue sidewalk when Rivas walked up to him. He then saw Rivas
hand defendant "currency or . . . paper," which defendant "fiddled" with before
putting it in his pocket and walking with Rivas to the rear of the Arlington
Avenue home out of Sergeant Alston's view.
After a minute or two, Sergeant Alston saw Rivas reappear and "adjust[]
his waistband." Rivas then re-entered the vehicle and instructed Detective Metz
to drive back to Laramie Road. During the drive back, Detective Metz asked
Rivas whether they were "good," meaning whether "he ha[d] the drugs," and
Rivas responded "yes." Detective Metz then handed Rivas $10 in marked
currency as "a tip." As Detective Metz's vehicle approached Laramie Road,
nearby officers pulled the vehicle over and arrested Rivas and McPartland. The
officers recovered twenty-seven folds of heroin and one film of suboxone 1 from
Rivas.
After Detective Metz, McPartland, and Rivas left Arlington Avenue,
Sergeant Alston stated he saw defendant exit the Arlington Avenue home and
enter a Pontiac. Nearby takedown units arrested defendant and recovered three
1
Suboxone is a CDS, N.J.S.A. 2C:35–10(a)(1) and used to treat opioid
dependence.
A-5819-17T1
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of the marked $20 bills and a cellphone, which contained text messages to
Rivas's phone about the drug deal.
The State charged defendant with third-degree possession of heroin and
suboxone, N.J.S.A. 2C:35-10(a)(1) (counts one and two); third-degree intent to
distribute heroin and suboxone, N.J.S.A. 2C:35-5(a)(1), (b)(3) (counts three and
four); and second-degree intent to distribute heroin and suboxone within 500
feet of a public park, N.J.S.A. 2C:35-7.1 (counts five and six).
At trial, McPartland testified that she did not know defendant other than
"[a]s a neighbor." Rivas stated that when he was at the Arlington Avenue home,
he purchased the heroin from "A or Unc[, b]ut his real name is Rick." He also
stated that Unc lived in the basement of the Arlington Avenue home and that he
handed the $60 in marked bills to Unc, not defendant. Rivas testified that he
did not intend to give the heroin to Detective Metz but rather was going to keep
it for himself.
The court's jury instructions did not contain an identification charge. The
jury returned a verdict and found defendant guilty of counts one, three, and five ,
(the heroin charges) and not guilty of counts two, four, and six (the suboxone
charges). Judge Deitch denied the State's request to sentence defendant as a
persistent offender, N.J.S.A. 2C:43-7 and 2C:44-3(a), but granted its request to
A-5819-17T1
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sentence defendant to a mandatory extended term on count three pursuant to
N.J.S.A. 2C:43-7 and 2C:43-6(f).
Before issuing its sentence, the court applied aggravating factor three,
N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another
offense."), based on defendant's prior drug use and his "lack of stable
employment." The court applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6)
("The extent of the defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted."), based on defendant's six prior
convictions. Applying aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("The
need for deterring the defendant and others from violating the law ."), the court
found "a real and definite need to deter" defendant from engaging in further
criminal conduct. Finally, the court found aggravating factor eleven, N.J.S.A.
2C:44-1(a)(11) ("[Not] imposing a term of imprisonment would be perceived by
the defendant or others merely as part of the cost of doing business."), applicable
after concluding "a noncustodial sentence or a slight sentence would be seen by
the defendant or others simply as a cost of doing business." The court also
considered the application of mitigating factors and concluded the aggravating
factors "substantially outweigh the mitigating factors, which are nonexistent."
A-5819-17T1
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The court then merged counts one and three into count five, a second-
degree crime with a sentencing range of five to ten years. The court "declin[ed]
to impose a discretionary extended term as requested by the State," which would
have converted the sentencing range on the merged count to ten to twenty years
or that of a first-degree crime, because other sentencing options would better
"serve the interests of justice." The court also noted it declined to impose the
discretionary extended term on count five because it was "impressed by the fact
that [defendant] ha[s] a loving and supportive family" and defendant "came into
court and . . . owned up to what happened." However, because of defendant's
extensive criminal history the court concluded this "was [not] a one-off thing"
aimed to "str[ike] the right balance between the crime, the punishment[,] and the
person here."
On count one, the court sentenced defendant to four years imprisonment
with sixteen months of parole ineligibility. The court sentenced defendant on
count three to eight years of imprisonment with a period of thirty-two months
of parole ineligibility. On the final merged count, the court sentenced defendant
to eight years of imprisonment with a period of thirty-two months of parole
ineligibility. The JOC provides that sentencing on counts one, three, and five
are "to run concurrent" but also indicates that count one and three merge into
A-5819-17T1
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count five. The court also imposed corresponding fines on each count totaling
$4455. This appeal followed.
II.
In defendant's first point, he contends for the first time on appeal that the
court committed error in failing to give an identification charge because "the
prime thrust of [defendant's] defense challenged [his] identification . . . and
specifically, pointed to the well-known estimator variable of distance." He
claims that an identification charge was appropriate because "not a single
witness . . . could . . . point out [defendant] and say, I saw drugs in his
possession." As a result, defendant concludes the court should have "provide[d]
. . . instruction on eyewitness identification . . . [and] application of the estimator
variable of distance." In support, defendant relies upon the Supreme Court's
opinions in State v. Henderson, 208 N.J. 208 (2011), and State v. Cotto, 182 N.J.
316 (2005), and our decision in State v. Davis, 363 N.J. Super. 556 (App. Div.
2003). We disagree with defendant's arguments.
We review a "missing instruction on identification . . . for plain error."
State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (citations omitted). "Any
error or omission shall be disregarded . . . unless it is of such a nature as to have
been clearly capable of producing an unjust result . . . ." Ibid. The possibility
A-5819-17T1
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of such an unjust result must be "sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it otherwise might not have reached."
State v. Macon, 57 N.J. 325, 336 (1971). Defendant carries the burden of
showing plain error. State v. Morton, 155 N.J. 383, 421 (1998).
We consider "[d]efendant's failure to 'interpose a timely objection [to]
constitute[] strong evidence that the error belatedly raised here was actually of
no moment.'" State v. Tierney, 356 N.J. Super. 468, 481 (App. Div. 2003)
(quoting State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999)). Absent a
request to charge or objection, "there is a presumption that the charge . . . was
unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157,
182 (2012) (citing Macon, 57 N.J. at 333-34).
Further, any alleged plain "error must be evaluated 'in light of the overall
strength of the State's case.'" Sanchez-Medina, 231 N.J. at 468 (quoting State
v. Galicia, 210 N.J. 364, 388 (2012)) (addressing an identification issue where
"[d]efendant's convictions rest largely on the testimony of four victims, only one
of whom could identify him" as "[t]he witnesses' descriptions of their assailants
varied").
In Henderson, a defendant challenged an identification on the ground
police officers had unduly influenced the eyewitness. 208 N.J. at 217. The
A-5819-17T1
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eyewitness initially expressed doubt about the identity of the perpetrator but was
able to confidently identify the defendant after meeting with investigators. Id.
at 223-24. The Court identified numerous factors that can affect the ability of a
witness to remember and identify perpetrators of crimes, resulting in
misidentifications, and ordered an amplified, comprehensive jury charge. Id. at
298-99. The Model Jury Charges (Criminal), "Identification: In-Court and Out-
of-Court Identifications" (rev. July 19, 2012) was then drafted and adopted by
the Court.
In Sanchez-Medina, the Court made clear that "[w]hen eyewitness
identification is a 'key issue,' the trial court must instruct the jury how to assess
the evidence—even if defendant does not request the charge." Id. at 466
(quoting Cotto, 182 N.J. at 325). For the failure to deliver the charge to be plain
error, however, identification must be "a critical issue at trial that defendant
disputed." Id. at 469; see also Cotto, 182 N.J. at 325. An issue is made a "key
issue" if it is "the major, if not the sole, thrust of the defense." State v. Green,
86 N.J. 281, 291 (1981). And, we must also consider the error "in light of 'the
totality of the entire charge, not in isolation.'" Ibid. (citation omitted).
Based on our independent review of the record, we conclude that the trial
court's failure to give a detailed identification charge is not "of such a nature as
A-5819-17T1
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to have been clearly capable of producing an unjust result." See R. 2:10-2. Here,
the jury was clearly instructed that the State must prove beyond a reasonable
doubt that defendant committed the crimes for which he was charged. In this
regard, the court specifically instructed the jury to determine whether "the State
has proven beyond a reasonable doubt that the defendant[] violated a specific
criminal statute." The court's reasonable doubt charge repeatedly referred to
"defendant's guilt." Further, when detailing the elements of each of the charges
against defendant, the court repeatedly stated that an element of each is "[t]hat
the defendant possessed . . . heroin [or suboxone]."
Additionally, the court charged the jury to "weigh the testimony of each
witness and then determine the weight to give it," specifically asking the jury to
consider a witness's "means of obtaining knowledge of the facts" and to the
extent the witness is "corroborated or contradicted . . . by other evidence." The
court also charged the jury on circumstantial evidence stating "[i]t is not
necessary that all the facts be proven by direct evidence" and that a guilty verdict
"may be based on . . . circumstantial evidence alone or a combination of direct
evidence and circumstantial evidence."
Defendant's reliance on State v. Davis for the proposition that trial courts
have a duty "to instruct the jury on the prosecution's burden of proving
A-5819-17T1
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identification, even without a defense request" is misplaced. See 363 N.J. Super.
at 558. In Davis, we found "[o]n the facts presented," the absence of a detailed
identification charge constituted plain error. Id. at 558-62. The defendant in
Davis was convicted of distributing cocaine within 100 feet of a school after he
purportedly sold it to a Drug Enforcement Agency officer who had never seen
him before and identified him twenty-five minutes after the drug transaction
through a single photo. Ibid. We described defendant's case as "squarely one
of misidentification" and noted "it is possible that the corroborative evidence
against a defendant may be sufficiently strong that the failure to give an
identification instruction does not constitute plain error." Ibid. (citing State v.
Salaam, 225 N.J. Super. 66, 70 (App. Div. 1988)). Based on the facts before us
in that case, we found plain error in part because "the court gave no instruction
whatsoever as to the State's obligation to prove identification beyond a
reasonable doubt." We noted "the complete absence of any reference to
identification as an issue or as an essential element of the State's case is
improper." Ibid.
Defendant also relies on State v. Cotto for the proposition that "the trial
court never explained to [defendant]'s jury that the State had the burden of
proving that he was the individual who committed the crime." See 182 N.J. at
A-5819-17T1
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325-26. In that case, the Supreme Court, despite concluding that identification
was a "key" issue, nonetheless affirmed a conviction where the jury was not
provided a detailed identification charge. Id. at 326-27. The Court held a jury
is properly instructed if the charge makes clear that "the State bears the burden
of proving beyond a reasonable doubt that the defendant is the wrongdoer." Ibid.
The Court found the charge to that jury, which stated the State must prove "each
and every element of the offense, including that of the defendant's . . .
participation in the crime," satisfied this requirement. Ibid.
Under all the circumstances presented, we are not convinced that the
court’s failure to sua sponte give an identification charge had the clear capability
to bring about an unjust result. Unlike in Davis, the evidence against defendant
was substantial and included Sergeant Alston's testimony that clearly identified
defendant outside his house. That testimony was corroborated by the marked
currency and a phone with text messages to and from Rivas's phone about the
drug transaction found in defendant's possession at the time of the arrest.
III.
With respect to defendant's second point, we note that the parties do not
dispute that the doctrine of merger applies to defendant's convictions. Rather,
A-5819-17T1
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they dispute whether a remand is necessary to amend the JOC. We agree with
defendant and conclude a remand is necessary.
N.J.S.A. 2C:1-8(a) governs merger of offenses and "focus[es on] whether
the offense charged and the related offense share a common factual nucleus."
State v. Thomas, 187 N.J. 119, 130 (2006). "[A] separate sentence should not
be imposed on the count which must merge with another offense." State v.
Trotman, 366 N.J. Super. 226, 237 (App. Div. 2004). Courts merge convictions
where multiple counts otherwise call for "double punishment for a single
wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). Without applying the
merger doctrine, a defendant's sentence could run afoul of the Double Jeopardy
Clauses in the Federal and New Jersey Constitutions. State v. Eigenmann, 280 N.J. Super. 331, 336-37 (App. Div. 1995); see also U.S. Const. amend. V; N.J.
Const., art. I, para. 11.
Here, counts one and three unequivocally merged into count five, as the
court concluded in its oral decision. See State v. Rechtschaffer, 70 N.J. 395,
415-16 (1976); State v. Gregory, 336 N.J. Super. 601, 608 (App. Div. 2001).
The court, however, erred by imposing separate sentences on each count.
Moreover, the JOC states the sentence on each count is "to run concurrent" to
each other and imposed various fines for each charge. Accordingly, we vacate
A-5819-17T1
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the JOC's separate sentences imposed on counts one and three and remand the
matter for the limited purpose of amending the JOC to accurately reflect the
merger of defendant's convictions and to correct any assessed penalties.
IV.
In his final point, defendant contends his sentence is excessive. Notably,
he does not challenge the court's decision to merge counts one and three to count
five or application of the aggravating and mitigating factors. Instead, he
generally claims that because there was "nothing particularly egregious about
the offenses" he requests we remand the matter for resentencing. We have
considered these arguments and conclude they are sufficiently without "merit to
warrant discussion in a written opinion." R. 2:11-3(e)(2). The sentence does
not shock our conscience and was consistent with the standards detailed in the
Code of Criminal Justice. See State v. Fuentes, 217 N.J. 57, 70 (2014).
Affirmed in part and remanded in part.
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