Opinion
DOCKET NO. A-6394-11T2
02-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AKBAR N. SALAAM a/k/a WILLIAM McDANIELS, NAT McDANIEL, MALIK SALAAM, WILLIAM McDANIEL, WILLIAM N. McDANIELS, WILLIAM McDANIEL, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs). John Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-07-1670 and 11-11-2845. John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs). John Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Akbar Salaam was convicted by a jury of a thirty-count indictment charging him with: five counts of third-degree distribution of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (counts one, seven, thirteen, nineteen, and twenty-five); five counts of second-degree distribution of a CDS, heroin, within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-2.1 (counts two, eight, fourteen, twenty, and twenty-six); five counts of third-degree possession of a CDS, heroin, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (counts three, nine, fifteen, twenty-one, and twenty-seven); five counts of third-degree distribution of a CDS, heroin, within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts four, ten, sixteen, twenty-two, and twenty-eight); five counts of third-degree possession of a CDS, heroin, N.J.S.A. 2C:35-10(a)(1) (counts five, eleven, seventeen, twenty-three, and twenty-nine); and five counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts six, twelve, eighteen, twenty-four, and thirty).
The appeal in this matter relates solely to Indictment No. 10-07-1670, however, after trial defendant entered a guilty plea to a charge of third-degree drug possession on Indictment No. 11-11-2845. He was sentenced to a four-year term of imprisonment concurrent with the other indictment.
Defendant was sentenced on July 6, 2012, to consecutive terms of imprisonment resulting in an aggregate sentence of forty years subject to twenty-five years of parole ineligibility. Although we affirm the convictions, we vacate the sentence and remand, concluding that the consecutive terms of imprisonment did not comply with the standards articulated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and that the drug transactions and official misconduct offenses should be merged.
The State concedes that defendant's drug distribution offenses should merge with one another, but argues those offenses should not merge with the public misconduct charges.
I
Twice defendant unsuccessfully moved pre-trial to dismiss Indictment No. 10-07-1670, alleging that exculpatory evidence had not been presented to the grand jury and that Atlantic City Police Detective Daryl Dabney gave false testimony in order to secure the return of the indictment. Although counsel and the trial judge discussed, pre-trial, conducting Driver hearings as to the tapes of the drug transactions, we have no indication that such hearings took place.
State v. Driver, 38 N.J. 255 (1962).
At the time of trial, Dabney, a fifteen-year police veteran, was assigned to the Special Investigations Section in the Vice or Narcotics Unit. In that capacity, his responsibilities were primarily narcotic investigations. He had attended numerous drug schools and been involved in hundreds of narcotics investigations.
When initially asked by the assistant prosecutor if Dabney, during the course of his career, had the opportunity to familiarize himself with the packaging of narcotics and "things that [went] along with the distribution of narcotics," Dabney replied "Yes, I have." That testimony triggered an unsuccessful objection from defense counsel and preceded Dabney's testimony regarding the stamps on the bricks of heroin in this case.
The objection was that the testimony required expert testimony and went beyond the witness's factual recollection and observations. In reliance on State v. McLean, 205 N.J. 438 (2011), the court overruled the objection, stating that Dabney would be testifying from his experience "how heroin is packaged. It's not particularly pertaining to this defendant at this time and it's not opining that this defendant did or did not deal in, possess or distribute heroin, so I am going to allow [] the question."
Dabney explained, after the trial judge overruled defense counsel's objection, that heroin was typically packaged in small wax paper or cellophane folds. He said a bundle consisted of ten folds and a brick of five bundles, or fifty individual folds. He added that the packaging bore a "stamp" which was "more or less that dealer's particular brand."
Say, for example, you had a brand of a particular heroin that was strong, you want a stamp for it which everybody would know connects it to you. That way you can tell the good heroin from the bad heroin and pretty much you know who has the good heroin if you can tell by the stamp. The stamp is connected to a certain person.
Dabney testified that in September 2008 he arrested R.G. for selling cocaine. In exchange for a favorable plea negotiation, R.G. agreed to act as a confidential informant. R.G. provided defendant's name to Dabney, and over the course of four months, made five controlled buys under the direction of the Atlantic City Police Department (ACPD) and the United States Drug Enforcement Agency (DEA). When these offenses occurred, defendant was employed as a maintenance supervisor for the Atlantic City Department of Public Works at the All Wars Memorial in Atlantic City. All the transactions at issue occurred at the facility.
Dabney testified, as did R.G., regarding each and every drug sale. The first one took place on April 30, 2009. R.G. was unaware that the device with which he had been equipped had video capability, and was instructed to make the buy from defendant at the All Wars Memorial. After spending approximately ninety minutes there, R.G. returned and gave Dabney a package of five "bricks" of heroin, stamped in green ink with the words "Frank Lucas."
On the occasions when R.G. was fitted with a video recording device, he was told by law enforcement personnel that the devices only recorded audio. Dabney explained that that was his practice because confidential informants often acted too nervously or awkwardly when they knew that they were supposed to be capturing a CDS seller on camera.
Dabney also testified that he was familiar with the sound of defendant's voice, which was "sort of a high, nasally-type, kind of hard to explain, but it sticks out." Based on his familiarity with defendant's voice, when reviewing the recording made during the controlled buys, Dabney identified the seller as defendant. The video aspect of the first buy was obscured.
On May 13, 2009, Dabney sent R.G. to make a second controlled buy of five bricks of heroin from defendant at the All Wars Memorial. This time, R.G. was only equipped with a sound device. R.G. returned after approximately forty-five minutes, in possession of four bricks of heroin, marked "Frank Lucas." Dabney said he recognized defendant's voice on the recording.
The next day, on May 14, 2009, Dabney arranged for R.G., while equipped with an audio recording device, to pick up the remaining fifth brick of heroin. On this occasion, R.G. took about fifty minutes to make the buy and returned with approximately four-fifths of the heroin, marked "Frank Lucas" in green ink. On this, like on every occasion, Dabney identified defendant's voice on the recording.
On June 11, 2009, R.G. was fitted with an audio and video recording device and sent to purchase another five bricks of heroin from defendant. R.G. took twenty-four minutes and returned with five bricks, marked in red ink with the words "Top Ten." Dabney identified defendant on the video by sight and on the audio recording by voice.
The final purchase occurred on September 10, 2009. R.G. purchased two bricks of heroin while wearing an audio and video recording device. The buy took approximately twenty-five minutes. On this occasion, the drugs were again stamped with "Frank Lucas" in green ink. Dabney identified defendant's voice, although the video was obscured.
When R.G. testified, he defined a stamp as "a label; it's the name of the dope that you have." He added that the purpose of a stamp was "[s]o that people would know your product."
R.G.'s testimony mirrored that of Dabney. He agreed that he made several controlled buys from defendant while the latter was working at the All Wars Memorial. He initially purchased five bricks of "Frank Lucas" heroin from defendant, and was to later purchase another five bricks. During the second buy, he received only four bricks, stamped "Frank Lucas," and was told by defendant to return the following day for the fifth brick. The heroin retrieved on the next day, during the third buy, was also marked "Frank Lucas." As for the fourth buy, R.G. purchased five bricks of "Top Ten" heroin on that occasion. At the fifth and final controlled buy, R.G. purchased two bricks of "Frank Lucas" heroin.
R.G. was extensively cross-examined regarding his agreement to act as a confidential informant, and the potential that, as a result, his sentence would be reduced on his pending charges. R.G. testified that he hoped that his cooperation would gain him a lower sentence, although the authorities had not committed to anything but six years subject to three years of parole ineligibility on a plea agreement already entered into. He was also asked about his prior criminal history, including previously served terms of incarceration.
Defendant's criminal history, which began with a disorderly persons marijuana conviction in 1975, included other disorderly persons offenses as well as at least ten indictable convictions. Of particular significance to the issues on appeal, from November 1991 to February 1992, defendant had three convictions for third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7(a). In November 1996 he was convicted of second-degree CDS distribution, N.J.S.A. 2C:35-5(a)(1), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1). In January 1997, defendant was convicted of fourth-degree receiving stolen property, N.J.S.A. 2C:20-7.
Sometime after January 1997, an Atlantic County indictment issued against defendant was downgraded to an assault-type disorderly persons offense and remanded to municipal court. In 2003, he was charged with fourth-degree possession with intent to sell videotapes, N.J.S.A. 2C:21-21(c)(4), which was dismissed. In 2005, he was charged with the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a), and in 2008, he was charged with a simple assault. Both were dismissed.
Shortly before the State rested, defense counsel made a Sands /Brunson motion seeking to bar cross-examination regarding defendant's prior convictions because of their age. The judge ruled that the convictions prior to 1992 were too remote, but those which occurred in 1992 and 1997 would be sanitized and could be used. The trial judge reasoned:
State v. Sands, 76 N.J. 127 (1978).
State v. Brunson, 132 N.J. 377 (1993).
I am, of course, well aware that these [] convictions are [twenty-] and [fifteen]-years-old. . . . [T]he court has a tremendous amount of discretion, and [the cases cited] provid[e] the court with guidelines as to how to exercise its discretion. And what has certainly caught my attention and gave me pause [is] to think about do I allow in convictions even if they're sanitized . . . that happened so long ago as opposed to, if [defendant] testifies, that the impression given to the jury is that he has been completely law-abiding his entire life, which, of course, is not factually correct. It is true that . . . there's really only one minor charge leveled against [defendant] since these more serious charges involving drugs, and it does appear for over a substantial period of time . . . that [defendant] was involved in possession and . . . distribution of drugs. And I am concerned . . . that should [defendant] decide to take the witness stand, the improper impression would be given to the jury that he has been a law-abiding citizen his entire life. And I suppose, had [defendant] only had one or two convictions that have absolutely nothing to do with drugs, happened [twenty] years ago, he's lived a law-abiding life since then, it would really be an easy call by the court and I would preclude the prosecution from cross-examining him on those convictions should he decide to take the witness stand. But in my analysis and in my discretion, I have determined that that is not the case, and that notwithstanding the convictions took place over [ten] years ago and notwithstanding that once they have done that, the State has a heavy burden to
convince the court that convictions of over [ten] years should be allowed in, I'm satisfied that due to the nature of those convictions, . . . notwithstanding the fact that they don't go to the truthfulness of [defendant]'s character . . . , but they do touch pertinently upon the charges that [defendant] is being charged with and faces in this trial. So, knowing that, it does appear to me that [defendant] is not new to being charged with drug offenses. He's not new with actually dealing, possessing and selling drugs since he's been found guilty of those charges. The problem of course, is that they are over [ten] years of age. But I believe because those crimes are almost identical to what he is being charged with today, that I'm going to allow the State to cross-examine him on them, and since they are so old, . . . they will be sanitized in the questioning so that the jury will know that he's been convicted, [] what his sentence was, they will not know what the charges were, but I think that the jury . . . should know, that [defendant], for a fairly long period of his life, was involved in illegal behavior.
The trial judge found it "significant" that defendant "was employed by . . . Atlantic City and was making the sales of [heroin] out of the city-owned building, the All Wars Memorial [] of which he was in charge." In the judge's opinion, defendant was "incorrigible" and his actions were "particularly egregious."
At sentencing, the trial judge found that N.J.S.A. 2C:44-1(a)(1), "[t]he nature and circumstances of the offense, and the role of the actor therein," applied. The judge explained: "[T]his was an ongoing criminal enterprise to sell drugs into the general community."
The trial judge also found N.J.S.A. 2C:44-1(a)(3) because he was convinced that defendant would "commit another offense." He placed "great weight on" the risk defendant would reoffend because defendant "ha[d] an extensive prior record and the offenses for which he [was] convicted [we]re particularly serious." The judge also found aggravating factor six, and likewise applied and placed "great weight on" N.J.S.A. 2C:44-1(a)(9), the "need for deterring [defendant] and others from violating the law." Finally, the trial judge applied N.J.S.A. 2C:44-1(a)(11), that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived . . . merely as part of the cost of doing business, or as an acceptable contingent business or operating expense." The trial judge added: "It is noted that this was a profit-making enterprise run by [defendant]. There are no mitigating factors. The aggravating factors substantially outweigh the mitigating factors."
After merging certain offenses, the trial judge determined that defendant should be sentenced for twenty crimes (the same four crimes on each of the five applicable infraction dates): five counts of second-degree distribution of a CDS within 500 feet of a public housing facility, public park, or public building; five counts of third-degree possession of a CDS with the intent to distribute; five counts of third-degree distribution of a CDS within 1000 feet of school property; and five counts of second-degree official misconduct.
On the CDS convictions, the trial judge sentenced defendant to concurrent prison terms of eight or fewer years, to be served concurrently with his sentences for official misconduct. Respecting the official misconduct sentences, the judge stated:
[Defendant] at the time of his arrest was an employee of . . . Atlantic City and has been convicted on five counts of official misconduct. Therefore, as to each of these counts, . . . which are second-degree offenses, I sentence [defendant] to eight years in New Jersey state prison with a period of parole ineligibility of five years on each count. The sentence imposed on these official misconduct charges shall run consecutive to each other and concurrent to the sentences imposed on all of the other counts.
In imposing consecutive sentences on . . . [defendant] for the five . . . official misconduct convictions, the [c]ourt has considered all of the factors set forth in State[v.] Yarbough[, 100 N.J. 627 (1985), certif. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)]. "There can be no free crimes in a system for which the punishment should fit the crime."
The charges of official misconduct for which [defendant] has been convicted were committed at different times and were predominantly independent of each other.
They did not occur so closely in time and place as to indicate a single period of aberrant behavior. These crimes occurred over a period of over four months.
. . . .
In determining to impose upon [defendant] consecutive terms for his convictions of official misconduct, the [c]ourt has determined that if concurrent sentences would be imposed upon [defendant] for the conviction of [thirty] separate crimes revolving around selling drugs out of an Atlantic City-owned property of which [defendant] was the supervisor, the total sentence would not be commensurate with the crimes for which [defendant] was convicted.
The sentence imposed upon [defendant] must fit the crime. Without giving [defendant] consecutive sentences on the most egregious crimes, the total aggregate sentence that could be imposed upon [defendant] would be eight years with a five-year term of parole ineligibility. This [c]ourt finds that that sentence is simply not severe enough for an individual [who] has blatantly used his public employment to sell drugs. It is the sale of drugs by a public employee out of a public building that calls for consecutive sentences to be imposed.
. . . These crimes are a slap in the face to the citizens of . . . Atlantic City. [Defendant] has been convicted of [thirty] separate crimes and [he] has led a life of crime for over [forty] years.
II
Defendant raises the following points of error for our consideration:
POINT I
THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DEFENDANT'S 1992 AND 1997 CONVICTIONS WERE ADMISSIBLE TO IMPEACH DEFENDANT IF HE ELECTED TO TESTIFY, THEREBY DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
POINT II
THE TRIAL COURT ERRED IN ALLOWING LAY OPINION TESTIMONY WHICH INVADED THE FACT-FINDING PROVINCE OF THE JURY.
POINT III
THE 40-YEAR AGGREGATE SENTENCE IS MANIFESTLY EXCESSIVE FOR THIS DEFENDANT AND THESE OFFENSES.
A. The Judge was Unreasonable in Running All Five Official Misconduct Eight-Year Sentences Consecutively Because They were Committed During a Single Crime Spree, and Successive Terms for the Same Offense should not be For the Same Period of Time.
B. The Judge Failed to Properly Analyze the Basis of Aggravating Factor Eleven to this Case.
C. The Judge Unreasonably Applied the Guidelines to the Facts.
D. Summary.
By way of pro se brief, defendant raises the following issues:
POINT I
[] THE INDICTMENT SHOULD HAVE BEEN DISMISSED FOR FAILURE OF THE PROSECUTOR TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.
POINT II
THE APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S FAILURE TO DISCLOSE DISCOVERABLE MATERIAL WHICH HINDERED THE APPELLANT'S RIGHT TO PRESENT A DEFENSE TANTAMOUNT TO A VIOLATION OF THE APPELLANT'S FOURTH, FIFTH AND SIXTH AMENDMENT RIGHTS.
POINT III
TRIAL COURT FAILED TO CONDUCT A DRIVER'S HEARING TO DETERMINE RELIABILITY AND AUDIBILITY OF VIDEO RECORDINGS OF ALLEGED DRUG TRANSACTION.
POINT IV
THE TRIAL COUNSEL VIOLATED THE APPELLANT'S RIGHT TO REASONABLE COMPET[E]NT EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INVESTIGA[TE] AND PREPARE AN EFFECTIVE DEFENS[E] WHICH VIOLATES BOTH STATE AND FEDERAL CONSTITUTIONS.
A.
"To the extent [that a] defendant is challenging evidentiary rulings by the trial court, [the Appellate Division] review[s] those rulings to determine whether the trial court abused its discretion." See State v. J.D., 211 N.J. 344, 354 (2012). "Under [the abuse of discretion] standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks omitted).
N.J.R.E. 609, governing impeachment by evidence of prior convictions, provided: "For the purpose of affecting the credibility of any witness, the witness's conviction of a crime . . . must be admitted unless excluded by the judge [as remote or for other causes]." In Sands, the Court indicated that, "[o]rdinarily[,] evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." State v. Sands, 76 N.J. 127, 144 (1978). "The key to exclusion," according to the Court, "is remoteness." Ibid. In Brunson, the Court noted that, in Sands, it had "held that trial courts should admit evidence of a prior criminal conviction unless, because of its remoteness, its probative force on the issue of the defendant's credibility is substantially outweighed by the prejudicial effect of its admission." State v. Brunson, 132 N.J. 337, 390 (1993).
We note that this case was decided prior to the amendment to N.J.R.E. 609, effective July 1, 2014, establishing criteria to be considered by a court in determining admissibility of prior conviction evidence where more than ten years have passed since the witness's conviction or release from confinement.
In State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.), certif. denied, 203 N.J. 440 (2010), we held that "Sands and N.J.R.E. 609 contain no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice." In that case, the defendant was charged with third-degree possession of a CDS, and the trial court permitted the State to impeach the defendant with a sanitized seventeen-year-old conviction for possession of a CDS with intent to distribute. See id. at 556, 565. We reversed because the defendant "had no intervening prior convictions" and "received only a probationary sentence at the time of [the prior] conviction." Id. at 565.
In State v. Harris, 209 N.J. 431 (2012), our Supreme Court considered the issue of whether thirteen-year-old convictions could be used in a defendant's trial for second-degree robbery, N.J.S.A. 2C:15-1, and second-degree burglary, N.J.S.A. 2C:18-2. In that case, the defendant had previously been convicted of four charges of shoplifting, N.J.S.A. 2C:20-11(b)(1), as well as one charge of possession of burglary tools, N.J.S.A. 2C:5-5, defiant trespass, N.J.S.A. 2C:18-3(b), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. The Court in Harris noted that our evidence rules have evolved along a separate track from the federal rules regarding the admission of prior convictions for impeachment purposes. Although the issue is left to the sound discretion of the trial judge and the burden is on the defendant to justify exclusion, the Court noted that a more nuanced consideration of the admissibility of older convictions is warranted because New Jersey does not follow the federal system's ten-year limit. This included viewing the "defendant's intervening convictions for disorderly persons offenses as removing the bar to admi[tting his] prior criminal convictions as too remote." Id. at 444-45. The Court explicitly declined "defendant's invitation to abandon N.J.R.E. 609 in favor of the approach utilized in Federal Rule of Evidence 609 under which a conviction more than ten years old is presumptively inadmissible." Id. at 445.
In this case, where defendant was convicted of a disorderly persons downgraded offense in the municipal court in 1998, and sentenced on that date, his convictions were thus, for the sake of analysis, essentially fourteen years old. The disorderly persons conviction thus removed the bar to admission of defendant's prior criminal convictions.
We agree with defendant's contention that the judge essentially ruled that his prior convictions were admissible in order for the jury to hear that defendant was predisposed to commit crimes. Obviously, prior convictions are not admissible for that purpose, but can be admitted to provide the jury with additional information on which they can rely in making credibility determinations. Although the judge's reasoning was mistaken, his actual decision to admit defendant's prior convictions in this case for impeachment purposes was not erroneous.
The model jury charge on credibility provides that evidence of the defendant's prior convictions "may only be used in determining the credibility or believability of the defendant's testimony." It instructs the jury not to "conclude that the defendant committed the crime charged . . . simply because he/she committed a crime on another occasion." Model Jury Charge (Criminal), "Credibility — Prior Conviction of a Defendant" (2003).
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B.
In State v. Sowell, 213 N.J. 89, 100-02 (2013), the Court reiterated the principle that expert testimony is necessary in a drug case to explain "what the jury could [not] grasp on its own." Here, the stamp testimony required Dabney to function as an expert. Knowledge about stamps on CDS packaging is not within the ken of the average juror.
N.J.R.E. 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." From that language, the Court has parsed out three requirements for the admission of expert testimony under N.J.R.E. 702: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." See State v. Rosales, 202 N.J. 549, 562 (2010) (internal citation omitted).
In McLean, the Court addressed the dividing line between lay and expert police testimony. See McLean, supra, 205 N.J. at 449-63. Specifically, the Court stated:
[W]e have established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. . . .
On the other side of the line, we have permitted experts, with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. Therefore, an expert may explain the roles played by multiple defendants in a drug distribution scheme and may offer an opinion about the implications of the behavior that was observed by the fact witness. Similarly, an expert may explain the significance of quantities of narcotics or its distinctive packaging, which are matters that would not otherwise be known by an average juror.
[Id. at 460-61 (citations omitted).]
In McLean, the Court characterized police testimony on "the significance of . . . [narcotics'] distinctive packaging" as a form of expert testimony. Id. at 461. Because the trial judge permitted Dabney to testify on a matter reserved for expert police witnesses under McLean, he "departed from established policies," thereby abusing his discretion. United States v. Scurry, 193 N.J. 492, 504 (2008) (internal quotation marks omitted); see Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (explaining that the abuse of discretion standard governs a trial court's decisions on the admission of expert testimony).
The question thus becomes whether the trial judge's erroneous admission of Dabney's testimony "was sufficiently prejudicial to have [had] the capacity to bring about an unjust result." See Thompson, supra, 405 N.J. Super. at 81. Put differently, the admission of Dabney's testimony must be analyzed under the harmless error standard. See Ragusa v. Lau, 233 N.J. Super. 84, 89 (App. Div. 1989), rev'd on other grounds, 119 N.J. 276 (1990). Under Rule 2:10-2, "[a]ny error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." This court must determine "whether in all the circumstances there [i]s a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971); see also State v. Thompson, 405 N.J. Super. 76, 81 (App. Div.) ("Even if the State elicits improper expert testimony during a criminal trial, a reversal of the defendant's conviction is required only if that testimony was sufficiently prejudicial to have the capacity to bring about an unjust result."), certif. denied, 199 N.J. 133 (2009). "The harmless error standard requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 2 09 N.J. 9, 26 (2012) (alterations in original) (internal quotation marks omitted).
According to defendant, the judge's ruling constituted reversible error because, absent Dabney's testimony, the jury might have harbored a reasonable doubt that he was involved in drug distribution.
It is true that the prosecutor in closing remarks twice mentioned Dabney's stamp testimony. It is equally true that R.G. explained the significance of heroin stamps in precisely the same manner as Dabney. R.G. was a drug dealer and buyer, involved in that world and familiar with the manner in which business is there conducted. We view R.G.'s testimony as only supporting our conclusion that Dabney's explanation was harmless error. R.G.'s testimony did not require him to be qualified as an expert, and he was entitled to testify about the stamps because of his hands-on familiarity with illegal drug transactions. See generally N.J.R.E. 701.
We disagree. In light of the proofs in this case, which included Dabney's observations of R.G. going in and out of the war memorial, his identification of defendant's voice and appearance on recordings of the drug transactions, his management of the controlled buys, and R.G.'s own testimony regarding making such buys, there cannot be "a reasonable doubt" that defendant was convicted as a result of "a fair trial and a fair decision on the merits." See Macon, supra, 57 N.J. at 338. Absent Dabney's testimony about stamps on CDS packaging, the jury still could not have harbored a reasonable doubt as to defendant's guilt.
Because defendant cannot demonstrate that Dabney's testimony about heroin stamps "led the jury to a verdict it otherwise might not have reached," the trial judge's erroneous admission of Dabney's testimony was harmless error and does not warrant reversal. See Lazo, supra, 209 N.J. at 26 (internal quotation marks omitted); R. 2:10-2.
C.
Defendant's first point in his pro se brief requires little discussion. His attorney appropriately, pursuant to Rule 3:10-2(c), sought dismissal of the indictment because of Dabney's "misstatement" to the grand jury that he saw defendant during the course of the first transaction on the video, when the video itself was obstructed. Generally, motions based on flawed grand jury presentations must be filed before trial, as a subsequent guilty verdict renders the error harmless. See, e.g., State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986) (finding that the untimeliness of the defendant's motion rendered the error "harmless" because the defendant had been found guilty beyond a reasonable doubt); State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993) (holding that "even if the grand jury instructions were erroneous, the error was rendered harmless by the subsequent guilty verdict"), aff'd, 141 N.J. 142 (1995). We see no error under the circumstances.
Although Dabney misspoke with regard to the video of the first transaction, he was ultimately able to identify defendant's voice during the transaction. The prosecution relied upon this identification of defendant as the drug seller during the trial.
Defendant's attorney filed a pre-trial application to compel the State to provide him with discovery from the DEA file regarding another individual who was investigated along with defendant. The prosecutor's response to the application was that he had provided counsel with everything he had related to the investigation of defendant. The judge, accordingly, denied the motion as defendant could not identify the allegedly discoverable materials in the federal file related to his charges and the prosecutor had no knowledge of any additional documents related to defendant in that file. Ultimately, the judge doubted his authority to order the DEA to provide defendant with the discovery, even if it had existed. The application simply lacked any support that made it appear more than a fishing expedition. We see no error in the judge's refusal to order discovery that may not have even existed from a federal agency.
Defendant objects that a Driver hearing was not conducted prior to the trial. A Driver hearing is not automatically required in all cases where sound recordings are offered as evidence. See State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987) (holding that a defendant may waive a Driver hearing); State v. Rockholt, 186 N.J. Super. 539, 547 (App. Div. 1982), aff'd, 96 N.J. 570 (1984). Furthermore, a trial judge has wide discretion in applying the requirements of Driver. State v. Zicarelli, 122 N.J. Super. 225, 238-40 (App. Div.), cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973). Driver hearings are intended to test audibility, and are employed only where necessary. Apparently, the audio quality of the tapes in this case did not necessitate a hearing.
Defendant also raises the issue of ineffective assistance of counsel. We do not address that claim at this stage, as ordinarily, such issues are preserved for post-conviction relief and not in the direct appeal. See State in the Interest of K.O., 424 N.J. Super. 555, 559 (App. Div.), certif. granted, 212 N.J. 460 (2012), rev'd on other grounds, 217 N.J. 83 (2014).
In sum, we do not believe that defendant's pro se points of error warrant further discussion in a written decision. R. 2:11-3(e)(2).
D.
Our review of the trial judge's sentencing decision is narrow, and governed by an abuse of discretion standard. See State v. Blackmon, 202 N.J. 283, 297 (2010). Where a sentencing court balances the appropriate and applicable aggravating and mitigating factors, and such factors are supported by sufficient credible evidence in the record, we are bound to affirm. See State v. Carey, 168 N.J. 413, 426 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). We do not second-guess such assessments so long as they are based on the appropriate guidelines. State v. Roth, 95 N.J. 334, 363-66 (1984).
We first address the problems with the aggravating factors found by the court. Aggravating factor one is difficult to apply because it often implicates the very circumstances involved in the statutory offense. See State v. Hodge, 95 N.J. 369, 377 (1984). Here, the judge's only support for that factor was that defendant's conduct involved engaging in an ongoing criminal enterprise to sell drugs into the general community. The distinction between a drug distribution charge and conduct which is harmful because it brings drugs into the general community is non-existent.
If the gravamen of the judge's concern was that defendant was selling drugs from a public place or as a public official, that element was already included in the official misconduct offense and is double-counting as well. The judge's analysis as to aggravating factor one violates the proscription against aggravating factors including statutory elements of the offense. See State v. Pineda, 119 N.J. 621 (1990).
The State concedes that the judge's finding of aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11), was also error, as it applies when the cost of doing criminal business should include incarceration but such a sentence is not mandatory. It is relevant only when a sentencing "judge is balancing a non-custodial term against a [state] prison sentence." State v. Dalziel, 182 N.J. 494, 502-03 (2005) (internal quotation marks omitted). Because defendant was convicted of second-degree crimes, which mandated his imprisonment, the factor was irrelevant.
Next we turn to consideration of State v. Yarbough, 100 N.J. 627 (1985). Clearly, we are mindful that pursuant to N.J.S.A. 2C:44-5(b)(2), there is no outer limit to the cumulation of consecutive sentences for multiple offenses. However, some of the fundamental principles in Yarbough were overlooked in this sentencing calculus. Those criteria should include consideration of whether the convictions are numerous, and successive terms for the same offense should not ordinarily be equal to punishment for the first. Id. at 643-44. Here the judge imposed twenty sentences, all of equal length for the same offense. Although a trial judge's decision regarding consecutive as opposed to concurrent sentences is generally discretionary, it is clear to us that the Yarbough guidelines were neither properly applied nor was the justification consistent with sentencing guidelines.
Additionally, since defendant was fifty-nine years old, this forty-year with twenty-five years of parole ineligibility sentence is effectively a life sentence. It was based on two improper aggravating factors and violated Yarbough principles. Given the nature of the conduct, it shocks our conscience. See State v. Case, 220 N.J. 49, 65 (2014). We thus vacate and remand for resentence. "When a trial court fails to give proper reasons for imposing consecutive sentences at a single sentencing proceeding, ordinarily a remand should be required for resentencing. The same is true when the trial court double counts or considers an improper aggravating factor . . . ." Carey, supra, 168 N.J. at 424 (internal citations omitted).
On remand, the issue of merger must be addressed. See N.J.S.A. 2C:1-8. In its plainest terms, merger is required because "[i]f an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). We agree with the State that all the drug offenses merge into the second-degree distribution in a public place. We conclude, however, that those drug offenses must also merge with the official misconduct offenses.
In State v. Quezada, 402 N.J. Super. 277, 279 (App. Div. 2008), a defendant "was convicted of official misconduct, N.J.S.A. 2C:30-2(a) . . . , setting false fire alarms, N.J.S.A. 2C:33-3 . . . , and committing a pattern of official misconduct, N.J.S.A. 2C:30-7 . . . for making false fire alarms as a volunteer firefighter on three separate dates." He argued on appeal that the false alarms convictions should have been merged into the official misconduct convictions. We agreed that the matters should be merged because the only basis for the official misconduct convictions was the making of the false alarms. Merger is proper where the same evidence is presented for two crimes, even though one may have required proof of a fact not required by the other.
A parallel factual scenario is presented where a defendant is convicted of failure to pay taxes as well as misapplication of those funds and entrusted property. The same evidence is presented for both, even though one required proof of a fact not required by the other. See State v. Manthey, 2 95 N.J. Super. 26, 32 (App. Div. 1996). Where the Legislature has spoken in terms of a non-merger provision, such as for drug distribution near a school, see N.J.S.A. 2C:35-7, the analysis is different. But here, the State did not claim defendant committed official misconduct other than by operating his illegal drug business during work, where his wages were funded by taxpayer dollars. Accordingly, we direct that on remand, the drug offenses be merged with the official misconduct convictions for purposes of resentence.
Thus we affirm the convictions, but merge all the crimes into the five separate official misconduct counts to which they chronologically correspond, and remand for a resentence in accordance with these principles. The court should also consider the appropriate penalties that survive merger of these offenses. See State v. Robinson, ___ N.J. Super. ___ (App. Div. 2014).
Affirmed in part, remanded in part for resentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION