Opinion
DOCKET NO. A-4044-11T4
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. YUSEF STEELE, a/k/a YUSIF STEELE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian F. Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the briefs). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0884. Joseph E. Krakora, Public Defender, attorney for appellant (Brian F. Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the briefs). Appellant filed pro se supplemental briefs. PER CURIAM
Following a second jury trial, defendant Yusef Steele was convicted 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 -5(b)(3) (count two); fourth-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12) (count three); third-degree possession with intent to distribute heroin within 1,000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count four); and third-degree possession with intent to distribute marijuana within 1,000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count five).
The first trial ended in a mistrial.
The trial judge granted the State's motion for an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) and -7(c). After merging counts one and two with count four, the judge sentenced defendant on count four to a seven-year term of imprisonment with a three-year period of parole ineligibility. The judge merged count three with count five and sentenced defendant on count five to a concurrent five-year term with three years of parole ineligibility. The sentences were to run consecutively to an extended-term sentence defendant was then serving on a separate indictment.
On appeal, defendant's assigned counsel raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE DID NOT HAVE THE REQUISITE REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP OF DEFENDANT, AND FURTHER CONDUCTED THE STOP IN AN EXCESSIVE MANNER.
POINT II
WITH NO BASIS TO BELIEVE THAT DEFENDANT WAS ARMED AND DANGEROUS POLICE HAD NO LAWFUL[] BASIS TO FRISK OR SEARCH HIM. THEREFORE[,] ANY EVIDENCE FOUND ON DEFENDANT'S PERSON MUST BE SUPPRESSED.
POINT III
THE STATE'S EXPERT WITNESS IMPROPERLY INVADED THE PROVINCE OF THE JURY BY OFFERING TESTIMONY AS TO THE ULTIMATE ISSUE OF WHETHER DEFENDANT POSSESSED THE DRUGS RECOVERED WITH THE INTENT TO DISTRIBUTE.
In a pro se supplemental brief, defendant raises the following contentions:
POINT I: DETECTIVE TO BELIEVE A DRUG TRANSACTION WAS TO OCCUR WITHOUT ANY EXCHANGE OR OBSERVATION OF SUSPICIOUS PACKAGE OR MONEY WAS NO MORE THAN A INARTICULATE MERE HUNCH IN VIOLATION [OF] []U.S. Const. amend[]. XIV; N.J. Const.
art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT II: IMPERMISSIBLE DRUG COURIER PROFILE OF UNIDENTIFIED LATINO MALE AND DEFENDANT AFRICAN[-] AMERICAN MALE AT CLOSE PROXIMITY TO EACH OTHER IN VIOLATION OF []U .S. Const. amend[]. XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT III: OPINION BY THE COURT[']S JUSTIFYING ACTUAL APPROACH WAS NOTHING MORE THAN A MERE FIELD INQUIRY[.] COURT[] OMITTED THE BOXING IN AND ORDER BY POLICE TO STOP WAS A SEIZURE PRIOR TO ANY CONCERNS FOR SAFETY WAS PLAIN ERROR (R. 2:10-2).
POINT IV: COURTS FAILED TO GIVE A [RULE] 3:5-7 HEARING ON THE SUPPRESSED EVIDENCE SUBMITTED AT TRIAL BASED ON ABSENT TESTIMONY [WAS] CONSIDERED HEARSAY AT INITIAL [RULE] 3:5-7 HEARING [IN] VIOLATION OF DEFENDANT[']S RIGHT TO A HEARING AND RIGHT TO CONFRONT THE ACCUSER IN VIOLATION OF []U .S. Const. amends. VI, XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT V: INEFFECTIVE ASSISTANCE OF COUN[S]EL FOR COUN[S]EL ENTERING INTO A ST[I]PULATION CONFLICTING WITH DEFENDANT[']S PRIOR TRIAL TESTIMONY THAT WAS CLEARLY IN DISPUTE BASED ON DEFENDANT[']S VERSION OF THE FACTS AT RETRIAL UNFAIRLY PREJUDICE[D] SAME TESTIMONY [A]FFECTING CREDIBLY VIOLATING DEFENDANT[']S RIGHT TO A FAIR TRIAL AND RIGHT TO TRIAL BY JURY AND RIGHT TO ASSISTANCE
OF COUN[S]EL IN VIOLATION OF []U .S. Const. amends. V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT VI: DEFENDANT[] ADMITTING TO THE JURY OF SIMPL[E] POSSESSION FOR PERSONAL USE OF THE MARIJUANA AS WELL AS ADMITTING BEING CHARGED WITH A DISORDERLY PERSONS RELATING TO THE MORE SERIOUS OFFENSES[,] [THE] COURT FAILED TO INSTRUCT THE JURY OF THE LESSER INCLUDED OFFENSE PURSUANT TO [RULE] 3:15-3 VIOLATING DEFENDANT[']S EQUAL PROTECTION AND DUE PROCESS RIGHTS IN VIOLATION OF []U .S. Const. amends. V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT VII: COUN[S]EL WAS INEFFECTIVE BY INTENTIONALLY WITHDRAWING DEFENDANT[']S SUMMONS [AND] COMPLAINT [AS] EXHIBIT[S] W[H]ERE COMPLAINT [WAS] PROVING DEFENDANT[']S CLAIM OF JUST BEING CHARGED WITH SIMPLE POSSESSION IN VIOLATION OF []U .S. Const. amends. V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT VIII: DEFENDANT[']S CONFRONTATION RIGH[T]S WERE VIOLATED W[H]ERE [THE] COURT ERRED INFOR[M]ING THE JURY OF AGREED STIPULATION WERE PREVIOUS TRIAL TESTIMONY BY DEFENDANT AND RETRIAL TESTIMONY IN DISPUTE OF ANY AND ALL STIPULATIONS PREJUDICE[D] AND DENIED THE DEFENDANT[']S RIGHT TO CONFRONTATION AND RIGHT TO A FAIR TRIAL AND RIGHT TO TRIAL BY JURY IN VIOLATION OF []U .S. Const.
amends. VI, XIV; N.J. Const. art. I, ¶¶ 1, 9 and 10[](Not raised below).
POINT IX: COURT SENTENCED DEFENDANT TO ANOTHER EXTENDED TERM WHILE DEFENDANT [WAS] SERVING A PRE[]VIOUS EXTENDED[-]TERM SENTENCE THE SAME COURT IMPOSED VIOLATING [N.J.S.A.] 2C:44-5(a)2 AND 2C:44-5(b)1 MAKING THE SENTENCE ILLEGAL.
We have considered the contentions in Points II, IV and VIII of defendant's pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We decline to consider the contentions in Points V and VII of defendant's pro se supplemental brief. Our review of the record does not persuade us that the record was sufficiently developed that we may consider defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to post-conviction relief proceedings where the necessary factual record can be established. See State v. Castagna, 187 N.J. 293, 316 (2006).
Because there was a rational basis to instruct the jury on simple possession of marijuana as a lesser-included offense of possession of marijuana with intent to distribute, we reverse defendant's conviction on counts three and five and remand for a new trial on those counts.
We affirm defendant's conviction on counts one, two and four. However, as the State concedes, State v. Hudson, 209 N.J. 513 (2012), precludes imposition of multiple extended-term sentences. Thus, we vacate defendant's sentence on counts one, two and four and remand to the trial court to amend the judgment of conviction to reflect an ordinary-term sentence.
I.
We first address the motion to suppress. The motion record reveals the following facts. At approximately 5:00 p.m. on April 10, 2009, Police Officers Andrew Weiss and Christopher Bornheimer of the New Brunswick Police Department, Street Crimes Unit, were patrolling in an unmarked car in the area of Lee Avenue and Handy Street. As they approached Handy Street, they saw defendant, who was known to them as being involved in drug investigations. Defendant was standing "very close," "like huddled close" to another individual and looking at and counting something in his hand. Based on Officer Weiss's training and experience in approximately two hundred narcotics investigations, he believed a narcotics transaction was about to occur.
Defendant and the individual quickly "split up" when they saw the unmarked car approaching. Defendant walked down Handy Street toward Remsen Street and went between two parked vehicles. Officer Bornheimer exited the vehicle and Officer Weiss positioned the unmarked car next to the parked cars in order to "box [defendant] in" to prevent him from fleeing. As Officer Bornheimer approached defendant from behind, he saw defendant throw an object wrapped in a rubber band to the ground. Based on the officer's training and experience, he believed the object was a bundle of heroin.
Officer Weiss exited the unmarked car, approached defendant from the front and commanded defendant to show his hands. Upon seeing the officer, defendant backed up one or two steps and put his left hand in his left front pants pockets. Not knowing what defendant had in his pocket, in order to secure defendant's hand and frisk him for weapons, Officer Weiss grabbed defendant's right arm and then grabbed the outside of defendant's left front pants pocket. When he grabbed the outside of the pocket, Officer Weiss felt "a big bag with a bunch of bags in it," which he believed were packets of marijuana. After defendant removed his hand from the pocket, Officer Weiss reached into the pocket and retrieved a plastic bag containing seven smaller bags of marijuana.
Following defendant's arrest, Officer Bornheimer directed an officer who had arrived at the scene to retrieve the bundle that defendant had thrown to the ground. The officer brought the bundle to Officer Bornheimer, who placed it in his pocket and brought it to police headquarters, where it was found to contain seven glassine bags of heroin. The police searched defendant at police headquarters and recovered $254.
In denying defendant's motion to suppress, the trial judge credited Officer Weiss's testimony about his observations of defendant and found based on the totality of the circumstances that the police had a sufficient basis to approach defendant and conduct a Terry stop and pat down. This appeal followed.
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).
On appeal, defendant contends the police: (1) lacked the particularized reasonable suspicion required to conduct a Terry stop; (2) did not use the least intrusive investigative techniques during the stop to verify or dispel their suspicions that defendant was engaged in criminal activity; and (3) lacked a basis to perform a protective frisk. We disagree with these contentions.
Our review of a trial court's decision on a motion to suppress evidence is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We defer to the court's factual findings that "are substantially influenced by an opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy" and "reverse only when the trial court's determination is so clearly mistaken that the interests of justice demand intervention and correction." Id. at 424-25. "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. Therefore, a trial court's legal conclusions are reviewed de novo." Id. at 425 (citation omitted). Applying these standards, we discern no reason to disturb the judge's ruling.
Encounters between private citizens and police occur frequently and take many rapidly-transitioning forms, such as the field inquiry, the investigatory or Terry stop, the stop and frisk, the protective sweep of a residence or vehicle, and the search of a person, vehicle, or premises; each type of interaction is governed by a different legal standard. Id. at 427. "[L]aw enforcement officers may conduct a field inquiry without treading on constitutional rights." State v. Shaw, 213 N.J. 398, 410 (2012) (citing State v. Pineiro, 181 N.J. 13, 20 (2004)). "'[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen[.]'" Ibid. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 73 L. Ed. 2d 229, 236 (1983)). "But it is also clear that a person need not answer any question put to him[,] [that] he may decline to listen to the questions at all and may go on his way, and that his refusal to listen or answer does not, without more, furnish grounds for his detention." Ibid. (alterations in original) (internal quotation marks omitted).
"A minimally intrusive field inquiry is transformed into an investigative stop or detention—a seizure 'within the meaning of the Fourth Amendment'—when 'a reasonable person would have believed that he was not free to leave.'" Ibid. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)). "An investigatory police stop, sometimes referred to as a Terry stop, is permissible 'if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Ibid. (quoting Pineiro, supra, 181 N.J. at 20). "The standard for this form of brief stop or detention is less than the probable cause showing necessary to justify an arrest." Ibid. However, an officer's "hunch or subjective good faith—even if correct in the end—cannot justify an investigatory stop or detention." Id. at 411. "The stop must be reasonable and justified by articulable facts; it may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch." State v. Coles, 218 N.J. 322, 343 (2014). "When a police officer forms a reasonable and articulable suspicion to justify an investigatory stop, the officer may also conduct a patdown or frisk of the outer clothing of such persons in an attempt to discover weapons." Gamble, supra, 218 N.J. at 430.
"[T]he duration of the investigative stop may be extended for a reasonable but limited period for investigative purposes." Coles, supra, 218 N.J. at 344. "Further, the officer must use the least intrusive means necessary to effectuate the purpose of the investigative detention, and the detention must last no longer than is necessary to effectuate the purpose of the stop." Ibid. (citations and internal quotation marks). "[W]hen the duration of the detention is at issue, the proper question is 'whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.'" Ibid. (quoting State v. Dickey, 152 N.J. 468, 476-77 (1998)).
We are satisfied that the police had a sufficient basis to approach defendant in a field inquiry after observing him engaged in what appeared to be a drug transaction. Once Officer Weiss commanded defendant to show his hands, defendant kept moving and placed his hand into his pocket. That furtive movement provided reasonable and articulable suspicion to support a Terry stop and pat down. The encounter was no longer than necessary to effectuate the purpose of the stop.
II.
For the first time on appeal, defendant challenges the testimony of the State's expert witness. Defendant contends that by basing his opinion on actual evidence rather than hypothetical facts mirroring the evidence, the expert improperly opined as to the ultimate issue of whether defendant possessed the heroin and marijuana with the intent to distribute. We review this contention for plain error to determine whether it was capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Our Supreme Court has approved the use of expert testimony on whether, based on the trial evidence, drugs were possessed for distribution purposes or personal use. State v. Odom, 116 N.J. 65, 81-82 (1989)). "[T]he use of a hypothetical question [is] an appropriate vehicle through which an expert could testify in respect of inferring intent or purpose when drugs are possessed under certain circumstances." State v. Reeds, 197 N.J. 280, 291 (2009). An expert is permitted "to express an opinion in response to a hypothetical even when such testimony 'embraces an ultimate issue to be decided by the trier of facts, so long as the probative value of the circumscribed testimony is not substantially outweighed by the risk of causing undue prejudice." Id. at 292 (citations and internal quotation marks omitted). As the Court warned, however,
when using a hypothetical question in cases involving possession and distribution of narcotics, the question must be limited to the evidence adduced at trial and must focus on the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution]."Once that foundation is established, the prosecutor may ask the expert to express an opinion on whether, based on those facts, the drugs were possessed for distribution purposes or personal use." Id. at 293 (citing Odom, supra, 116 N.J. at 82).
[Id. at 292 (alteration in original) (quoting Odom, supra, 116 N.J. at 81-82).]
Here, without objection, the State's expert was qualified in the area of illegal possession and distribution of a narcotics. The expert testified that he was familiar with the circumstances surrounding the possession of heroin and marijuana for purposes of distribution rather than personal use including, manufacturing, packaging, pricing, distribution and purchase. He described how heroin and marijuana are packaged and sold in the area of defendant's arrest, and testified about the differences between possessing heroin and marijuana for purposes of distribution or for personal use. He was shown the packets seized from defendant and testified they were consistent with packets of heroin and marijuana. The following colloquy then occurred:
The packets of heroin and marijuana were placed into evidence as S-1 and S-2, respectively; the rubber around the packets of heroin was placed into evidence as S-3; the plastic bag containing the packets of marijuana was placed into evidence as S-4.
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[PROSECUTOR]: Now . . . I've shown you what you have there, narcotics, S-1, S-2. And I've given you some packages, S-3 and [S-]4. Please assume the following to be true. Police observe two individuals speaking in the vicinity of Lee and Handy Streets in New Brunswick. One of the individuals appears to be counting something out in his hand. As the individuals see the undercover police
approaching, they walk away quickly in opposite directions. Police observe one of those individuals, the one who has something counting out, throw a bundle of heroin containing seven packets held together by a rubber band to the ground. And they recover seven bags of marijuana contained in one larger bag from the person of the defendant. Also in his possession is $254 in various denominations and bills. Investigator, no other paraphernalia is recovered from the individuals.
Do you have an opinion as to whether or not CDS possessed under those circumstances, that hypothetical that I just outlined, were possessed for personal use or possessed with the intent to distribute them?
[EXPERT]: Based on those facts set before me, the heroin was possessed with the intent to distribute as well as the marijuana that was recovered from the person.
[PROSECUTOR]: Now would you please state the basis for your opinion?
[EXPERT]: The basis of my opinion, based on the fact . . . there's seven individual packets that are rubber banded together, which is commonly used by distributors throughout that area that we're talking about. It's not uncommon when police do arrive on the scene in their narcotics investigations, normally the first thing people do is either go to their pockets or their hands and they usually drop it, throw it down on the ground as you approach as per the officer not to observe, you know, that possession of that CDS at that time.
So based on that factor and based on the fact there [are] seven, three short of a bundle of heroin, and given the factor of that area, Lee Avenue and Handy Street, which is a very, I would say, high crime
district area as far as distribution of drugs, that being heroin, cocaine and marijuana in that area and also crack., that's my finding.
. . . .
[PROSECUTOR]: . . . The hypothetical that we just discussed, based on that hypothetical would the seven packets of heroin be consistent with personal use . . . or with distribution?
. . . .
[EXPERT]: With distribution.
[PROSECUTOR]: And would that apply to the seven packets of marijuana as well?
[EXPERT]: Yes, sir, it does.
We discern nothing untoward in the expert's testimony. It is consistent with the use of hypothetical questions endorsed in Odom. Accordingly, there was no error, let alone plain error, in the expert's testimony.
III.
The evidence revealed that defendant possessed .40 grams of marijuana. Although the State's expert's testified that this small amount did not alter his opinion the marijuana was possessed for distribution, defendant testified that he possessed the marijuana for his personal use. The judge declined defendant's request to charge simple possession of marijuana as a lesser-included offense of possession of marijuana with intent to distribute. We agree with defendant that this constitutes reversible error.
"The trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]" State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986). Upon request from a party, the court shall charge the jury with respect to an included offense where there is a rational basis for a verdict convicting the defendant of the included offense. N.J.S.A. 2C:1-8(e); State v. Harris, 357 N.J. Super. 532, 538-39 (App. Div. 2003). A "rational basis" is not sheer speculation, but rather exists when "[t]he evidence . . . present[s] adequate reason[s] for the jury to acquit the defendant on the greater charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). A jury charge on such a lesser-included offense must be provided even if it is inconsistent with defendant's defense theory. Id. at 118. Failure to so instruct the jury, when the defendant requests that a lesser-included offense be charged, for which a rational basis exists in the record, "warrants reversal of the defendant's conviction." Ibid.
An "included offense" is defined as an offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). Possession of a CDS under N.J.S.A. 2C:35-10 is established by proof of less than all the facts required to establish possession of a CDS with intent to distribute under N.J.S.A. 2C:35-5. Thus, simple possession is a lesser-included offense of possession with intent to distribute. See also State v. Muhammad, 182 N.J. 551, 575 (2005) (noting that "possession of a [CDS] with the intent to distribute and mere possession of that substance" are "greater and lesser" charges).
Defendant's testimony that he possessed the marijuana for his personal use established a rational basis to charge on the lesser-included offense of simple possession. A reasonable jury might have believed him. Accordingly, we reverse defendant's conviction on counts three and five and remand for a new trial on those counts.
Affirmed in part; reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION