Opinion
DOCKET NO. A-5493-10T1
01-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JACKIE M. DUPONT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Catherine Healy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-01-0088.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Catherine Healy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jackie Dupont appeals the denial of his suppression motion and raises additional challenges to his convictions for possession of cocaine and resisting arrest, none of which were raised before the trial court. We affirm.
I.
Defendant was charged by a Hudson County Grand Jury in a five-count indictment, No. 10-01-0088, for an incident on September 24, 2009. He was charged with third-degree knowingly or purposefully possessing cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possessing cocaine with the intent to distribute less than half an ounce, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); possessing cocaine with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); possessing cocaine with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count five).
Prior to trial, defendant moved to suppress the evidence seized during his arrest, which after a hearing on June 18, 2010, Judge Paul M. DePascale denied from the bench.
Judge Frederick J. Theemling, Jr., presided over a two-day jury trial on October 13 and 14, 2010. Defendant moved for a directed verdict, which the judge denied. The jury found defendant guilty on counts one and five and not guilty on counts two, three and four. On March 25, 2011, Judge Theemling sentenced defendant to time served, five years probation, and required defendant remain drug free, subject to random drug monitoring, and to obtain and maintain employment. The court also imposed fines, fees and a six-month loss of license. This appeal ensued.
On appeal defendant argues:
POINT IBased on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm.
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. I, ¶ 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ARREST AND SEARCH WITHOUT PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT HAD COMMITTED A CRIME.
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, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE MULTIPLE GRATUITOUS AND PREJUDICIAL REFERENCES TO "GANGS" BY POLICE WITNESSES IN A DRUG PROSECUTION. (Not 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. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS ON EACH AND EVERY ELEMENT OF THE OFFENSE OF RESISTING ARREST. (Not Raised Below).
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶
1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OPINION EVIDENCE BY A LAY WITNESS BECAUSE:
A. THE WITNESS DID NOT HAVE FIRST-HAND KNOWLEDGE OF THE FACTS.
B. THE STATE'S KEY LAY WITNESS RENDERED A HIGHLY PREJUDICIAL EXPERT OPINION WITHOUT PROVIDING NOTICE OF HIS EXPERTISE, WITHOUT PROVIDING AN EXPERT WITNESS REPORT, AND WITHOUT QUALIFYING AS AN EXPERT AT TRIAL. (Not Raised Below).
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS ON THE INTERTWINING ROLE OF THE STATE'S EXPERT WITNESS WHO ALSO GAVE FACT TESTIMONY. (Not Raised Below).
II.
Sergeant Edward Nestor of the Jersey City Police Department, a sixteen-year police veteran with extensive training and experience in narcotics investigations, testified at the suppression hearing. On September 24, 2009, he was assigned to the Booker T. Washington Housing Complex, a high narcotics area. Through an arrangement between the Jersey City Police Department and the Housing Department, he was working off-duty on housing detail for the Housing Department. Around 9:00 a.m., he was performing surveillance on the area near 82 Fremont Street based on information from an informant that a "black male, black T-shirt, blue jeans, wearing white sneakers" was "outside in that area [and] had drugs in his possession."
About fifteen minutes later, using binoculars, from fifty feet away, he observed a man later identified as defendant, who matched that description, speak with two other men, and take out a clear plastic bag containing vials or bottles. Sgt. Nestor saw defendant turn toward the surveillance vehicle, remove the vials from the bag, and look at or count the vials for about twenty or thirty seconds before returning the vials and bag to his pocket. He described defendant as "real fidgety with the bag[.]"
Sgt. Nestor believed the vials contained cocaine based on his "training and experience," explaining, "that's the common packaging for street sell of narcotics, cocaine." He radioed Sgt. Michael McNally, the on-call supervisor of the Jersey City Police Department Narcotics Squad, and continued to observe defendant until defendant walked into the building. Sgt. Nestor did not observe any transactions. Defendant returned five minutes later, holding a white garbage bag, which he disposed of in the dumpster. Sgt. Nestor was "[one] hundred percent sure" it was the same man because he knew "him from the area."
Sgt. Nestor was unsure whether defendant still had the vials on him, and he determined "[i]t would be a good time to stop and investigate." He communicated with the Narcotics Squad, and observed Officers Terrence Doran and Erica Vegra approach defendant while Officer Walter Chowanec and Sgt. McNally came up behind him. The officers were not in uniform, but they had their badges displayed.
After a brief exchange, defendant "took off running" about fifteen or sixteen feet before he ran into Officer Chowanec, then "refused to give his hands and [fought] them." Officer Chowanec tackled defendant and defendant "refused to be handcuffed." Once defendant was handcuffed, Sgt. Nestor observed the officers "recover[] the drugs from his right front pocket."
Defendant also testified at the suppression hearing. He denied being outside before coming out with the garbage and denied having drugs on him when he was arrested. He made several other statements inconsistent with Sgt. Nestor's testimony, which are not germane to the issues presented on appeal.
Judge DePascale accepted the facts as presented by Sgt. Nestor and, considering the totality of the circumstances, was satisfied "beyond any doubt that at the time the trained officer observed the defendant produce the ziploc bag containing vials, that he had probable cause to arrest the defendant." He further opined Sgt. Nestor's training was unnecessary to conclude defendant had CDS, because "in all likelihood in this County, any eighth grader observing a person produce a ziploc bag from his pocket containing small vials would have a pretty certain feeling as to what the ziploc bag contained." Accordingly, the judge denied defendant's suppression motion.
At trial, relevant to this appeal, the State presented the testimony of Sgt. Nestor, Officer Doran, and the expert testimony of Sgt. Wally Wolfe of the Jersey City Police Department. Relevant to this appeal, he essentially reiterated his testimony provided at the suppression hearing.
Officer Doran corroborated Sgt. Nestor's testimony. He further elaborated on the struggle with defendant when the officers were trying to arrest him, stating,
initially, he tried to run around Officer Chowanec at which point in time Officer Chowanec was able to get his hands on [defendant] and I was able to come from the back and tackle him, take his legs out and he went to the ground at which point in time [defendant] didn't want to be handcuffed. He was kicking his legs, he was keeping his hands underneath his body and we were pulling him until we finally could get both of his hands behind his back.In addition, he testified to recovering fifty vials of cocaine from defendant's right front pants pocket when defendant was handcuffed.
Sgt. Wolfe was admitted as "an expert in the area of methods of packaging, use and distribution of illegal narcotics[.]" He explained the sale and distribution process to the jury and testified about the Booker T. Housing Complex.
Defendant did not call any witnesses or testify at trial.
III.
Defendant first challenges the court's finding of probable cause and denial of his suppression motion. He argues that similar to the officer in State v. Pineiro, 181 N.J. 13 (2004), Sgt. Nestor never actually observed defendant in possession of CDS but only drew the conclusion, based on his training and experience, that the containers possessed by defendant are common repositories of CDS and he thus possessed CDS.
The container in Pineiro was a cigarette package, and the Court found the officer's observation of a suspected drug dealer and a drug user passing a cigarette package in a high crime area sufficient to conduct an investigatory stop, but insufficient to support probable cause. Id. at 29. The Court explained the difference between State v. Moore, 181 N.J. 40 (2004) and Pineiro:
Today in Moore we found probable cause based on the law enforcement officers' observations in a high crime area, which included observing the defendant and a companion walk away from a group of people to the back of a vacant lot, and hand a third man currency in exchange for small unknown objects believed to be drugs. [In Pineiro], unlike in Moore, there was no observation of currency or anything else exchanged, rather, there was merely a transfer of a cigarette pack under circumstances that had both innocent and suspected criminal connotations. Moreover, there was no proof of regularized police experience that objects such as [hard cigarette packs] are the probable containers of drugs.
[Pineiro, supra, 181 N.J. at 28 (quotation marks and citations omitted).]
Pineiro is factually inapposite. We are not persuaded the plastic vials in a ziploc baggie are as "intrinsically innocent" as a hard cigarette pack or, for example, a film container. See Pineiro, supra, 181 N.J. at 31 (citing State v. Demeter, 124 N.J. 374, 382 (1991)). In addition, defendant engaged in suspicious behavior by fidgeting with the bag and counting its contents. Although the officer did not observe an actual drug transaction, he still observed defendant engaging in suspicious activity in a high drug trafficking area holding an object that had no apparent innocent use and packaged in a way regularly used as containers for CDS. See Moore, supra, 181 N.J. at 46 (reiterating that in determining whether there is probable cause to arrest, the court should make a practical, common sense determination based on the totality of the evidence, including the officer's "common and specialized experience" and "evidence concerning the high-crime reputation of an area"). As Judge DePascale's ruling following the suppression hearing was supported by substantial, credible testimony of the veteran narcotics officer, which contained cumulative factors under the case law, it is entitled to our deference. See State v. Smith, 212 N.J. 365, 387 (2012) ("When reviewing a claim with respect to an issue of suppression, a reviewing court must accept the factual findings made by the trial court in analyzing the question, provided those factual findings are supported by sufficient credible evidence in the record.") (internal quotation marks omitted)).
Defendant next claims due process violations resulting from references to "gangs" by police witnesses, improper jury instructions on resisting arrest, improper expert testimony by a lay witness, and failure to instruct jurors not to give greater weight to factual testimony by the expert. As none of these arguments were raised at trial, we review them under the plain error standard, namely, whether the error was "clearly capable of producing an unjust result," R. 2:10-2, or the error "led the jury to a verdict it otherwise might not have reached[,]" State v. R.B., 183 N.J. 308, 330 (2005). See also State v. Galicia, 210 N.J. 364, 386 (2012).
Defendant now asserts the two references Sgt. Nestor made to "gangs" as improper character evidence, N.J.R.E. 404(b), and emphasizes that the court gave no limiting instruction to the jury precluding the use of the evidence to imply he was a gangster. Defendant urges that the suggestion he was a gang member was prejudicial because, conforming to the character trait of a gangster, jurors could infer he violated the law by possessing illegal drugs and resisting arrest. The challenged testimony is as follows:
Q: Sergeant, by whom are you employed?Defendant identifies no further references to gangs throughout the entire trial.
A: Jersey City Police Department.
Q: And in what capacity?
A: I'm the gang sergeant.
. . . .
Q: Sergeant, I'd like to direct your attention to September 24th 2009 at approximately 9 a.m. Were you on duty that day?
A: Yes.
Q: Okay. And what shift were you on?
A: I was working an off duty detail at the Booker T. Washington housing complex.
Q: And explain the off duty detail?
A: The Housing Authority hires officers to work there due to the increased amount of narcotics problems and gang related problems.
[(Emphasis added).]
Recently, we held that evidence of gang membership is not evidence of actual criminal activity, but "is at the very least strongly suggestive of such activity." State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 75 N.J. 78 (2011). In Goodman, we upheld the admission of gang-related evidence under Rule 404(b) because it was relevant to motive. Id. at 230.
We discern no error here, let alone plain error. The two references to gangs were fleeting and there was no further mention of "gangs" throughout the trial. It clearly was not character evidence under N.J.R.E. 404(a), nor a reference to prior acts of misconduct under N.J.R.E. 404(b). Accordingly, there is no requirement to give an "other crimes" evidence limiting instruction. State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995). The comments were innocuous and made solely in the context of the testifying officer's title and assignment. See Cherry, supra, 289 N.J. Super. at 522 (noting that a "jury cannot be expected to make its decision in a void — without knowledge of the time, place and circumstances of the acts which form the basis of the charge") (internal quotation marks omitted)).
In Point III, defendant challenges the jury instruction on resisting arrest as fatally deficient, claiming the judge gave no guidance or separate instruction on the law of attempt, N.J.S.A. 2C:5-1(a). We are not persuaded by this argument.
Defendant did not object to the jury instruction at trial, and thus we presume the charge was not erroneous and was unlikely to prejudice defendant's case. State v. Singleton, 211 N.J. 157, 182 (2012). We also note that "the charge must be read as a whole" to determine whether it was erroneous. State v. Jordan, 14 7 N.J. 409, 422 (1997). Moreover, a charge as a whole may be deemed appropriate even if it is not perfectly clear. State v. Harris, 141 N.J. 525, 556-57 (1995).
Defendant was charged with resisting arrest by flight, i.e., "a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). Viewing the instruction as a whole, we are satisfied the jury was appropriately instructed on this charge. Judge Theemling read the entire model jury charge on resisting arrest, including the four elements the jury had to find for a verdict on the disorderly persons offense of resisting and the five elements the jury had to find for the fourth-degree resisting arrest by flight offense.
Defendant next argues that Sgt. Nestor improperly testified defendant possessed "cocaine" or "drugs" when he did not have first-hand knowledge of that fact, in violation of N.J.R.E. 602, but only had first-hand knowledge of packaging. He additionally contends his right to a fair trial was violated because Sgt. Nestor, a lay witness, testified as an unqualified expert and rendered his opinion to the ultimate issue that based on the packaging, defendant possessed cocaine.
Defendant's argument is factually and legally without merit. Lay witness testimony is governed by N.J.R.E. 701, which 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.
In narcotics prosecutions, an officer may not testify as a lay witness to his beliefs or opinions when that opinion "usurp[s] the jury's function by, for example, opining about defendant's guilt or innocence, or in a manner that otherwise invades the province of the jury to decide the ultimate question." State v. McLean, 205 N.J. 438, 453 (2011) (internal citations omitted). Permissible lay witness fact testimony from an officer includes what the officer saw or perceived but not what the officer believed, thought or suspected, and these ordinary facts do not require an expert to spell out the implication of the facts. Id. at 460.
An officer may testify as an expert witness under N.J.R.E. 702 on "matters relating to narcotics prosecutions that might not fall within the realm of what an average juror would know." Id. at 453. This may include distinctive packaging or the significance of quantities of narcotics found. Id. at 461. As with lay opinions, "experts may not intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without expert assistance and [] expert opinions may not be used to express a view on the ultimate question of guilt or innocence." Ibid. See also State v. Sowell, _ N.J. _, _ (2013) (slip op. at 11-18).
In McLean, the Supreme Court found that an officer's response elicited in the context of the officer's experience and training is governed by the expert opinion standards of N.J.R.E. 702 and is not a lay witness opinion. McLean, supra, 205 N.J. at 463. The question in McLean was posed in the context of the officer's training and experience when the prosecutor asked "[s]o based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The Supreme Court rejected the State's argument that the testimony was lay witness testimony, further explaining "[t]o the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury." Id. at 463. The question went directly to whether the officer believed there was a drug transaction taking place, not what he observed, and the question was central to the intent to distribute charge. Id. at 446.
In contrast, Sgt. Nestor's statements consisted of a narrative of his observations, which fell squarely in the lay witness testimony category. He stated, "I observed [defendant] with what I believed to be a bag of narcotics." He continued explaining that defendant was fidgety with his pocket, and "pulled out a bag which appeared to be vials of cocaine, common packaging for vials of cocaine." (Emphasis added). Sgt. Nestor did not testify that defendant possessed cocaine or that, in his opinion, it was cocaine. Rather the sergeant was testifying to the circumstances leading to his decision to continue to observe defendant and to ultimately have perimeter units move in to apprehend defendant. Moreover, unlike in McLean, the conclusion that Sgt. Nestor was opining guilt by stating defendant had "drugs" cannot be considered a central issue to the case in view of the expert testimony of the chemist that the vials contained cocaine.
Lastly, defendant now contends Sgt. Wolfe's fact testimony was prejudicial and confusing to the jury because it consisted of both fact and expert testimony, and required a jury instruction to avoid the risk of the jury giving improper weight to the factual testimony.
Defendant relies on State v. Jackson for the requirement of a special jury instruction when an expert witness is also a fact witness. 278 N.J. Super. 69, 78 (App. Div. 1994) ("[W]e recognize an intertwining of the roles of the fact and expert witness might create juror confusion and this possibility places a burden on the trial judge to insure the jury is properly instructed as to the dual role of the witness and its function in evaluating the testimony."), certif. denied, 141 N.J. 95 (1995). The State argues Jackson is inapplicable because in Jackson, the expert witness was also the arresting officer who provided observational testimony. In contrast, Sgt. Nestor and Officer Doran testified as the State's fact witnesses, while Sgt. Wolfe only testified as the State's expert in the packaging, use, and distribution of narcotics. We agree.
Moreover, the challenged "factual" statement, i.e., that the majority of the people in the public housing complex are "hard working" and "a lot of children" live there, was an innocuous and gratuitous statement that had no relevance to the facts of the case. We are not convinced this testimony suggested defendant should be convicted to protect children, particularly in view of the jury's acquittal of defendant on the more serious intent to distribute counts of the indictment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION