STATE OF NEW JERSEY v. JAMES CRAWFORD TRACY CRAWFORD TRAVIS CRAWFORD ALTARIQ POOLE ALTARIQ CRAWFORD JAMES WOODS (2010)

Following trial by jury, defendant James Crawford was convicted of third-degree possession of a controlled dangerous substance (CDS), Alprazolam, N.J.S.A. 2C:35-10(a)(1) (count one);  third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two);  and a lesser-included disorderly persons possession of a prescription legend drug, Clonidine, N.J.S.A. 2C:35-10.5(e)(1) (count three).   On April 25, 2008, defendant was sentenced as a second-time drug distributor to a mandatory extended term.  N.J.S.A. 2C:43-6(f);  N.J.S.A. 2C:43-7(a)(4).   A sentence of five years imprisonment subject to three years of parole ineligibility was imposed on counts one and two, to be served concurrently.   On count three, defendant was sentenced to six months county jail time, also to be served concurrently.   Appropriate fines and penalties were assessed.   He now appeals, and we affirm as to the convictions and remand for correction of the sentence.

Newark Police Officer Luther Eatmon testified that on June 6, 2006, he was assigned to the “Safe City Division” of the Newark Police Department.   He and his partner, now-Sergeant Michael Santiago, were walking on Broad Street, approaching Market Street, at approximately 12:50 p.m., when he saw defendant holding an orange prescription bottle and saying “sticks,” the vernacular for Xanax or Alprazolam.

When Eatmon made this observation, he was approximately eight feet from defendant.   As soon as defendant saw the police, he turned and attempted to walk away but was detained, and the officers seized the prescription bottle.   The arresting officers later searched defendant and found an additional prescription bottle containing seventy-four Clonidine pills.   The prescription bottle for Alprazolam was in the name of Ricky Singleton and the prescription bottle containing the Clonidine pills was in the name of Carmen Guzman.   On cross-examination, Eatmon said that he did actually not see defendant's “lips moving,” but he “heard him verbalize sticks.”

Santiago, who was a patrol officer and not a sergeant on the date of the incident, also testified.   His recollection as to the date, time, and place accorded with Eatmon's testimony:  as he and Eatmon walked down Broad Street towards the southwest corner, they turned and saw a man holding an orange bottle in his hand while repeatedly saying the word “sticks.”   When they approached defendant, since they were uniformed, defendant made a “sudden move, tried to conceal the bottle but ․ within seconds [they] detained him ․ and placed him under arrest․”  Santiago also recalled that when they searched defendant, they found a second prescription bottle containing Clonidine.   On redirect, the officer reiterated that he first observed defendant from a distance of less than six feet, and that defendant was holding an orange prescription bottle in his hand while repeatedly saying “sticks.”

Detective Reginald Holloway testified as the State's expert in street level narcotics transactions.   He had been employed in law enforcement over eighteen years, eleven in the Essex County Sheriff's Bureau of Narcotics.   During this time, he received specialized narcotics training and was involved in over 5000 narcotics investigations.   He opined that the location of defendant's arrest was known for “it's high level distribution of CDS, narcotics, controlled dangerous substances.”   A hypothetical question was posed to him assuming the State's version of the facts in evidence, and he responded that the circumstances established possession of drugs for distribution rather than personal use.

After the State rested, defense counsel moved for a judgment of acquittal pursuant to Rule 3:18-1, which motion the trial court denied based on the eyewitness testimony given by Eatmon and Santiago, and the expert testimony given by Holloway.   Defense counsel also advised the court that defendant would not testify but wanted the jury to be charged as to Model Jury Charge (Criminal), “Defendant's Election Not to Testify” (2009).

The trial court charged the jury on count three on the lesser-included offense of possession of a prescription legend drug, N.J.S.A. 2C:35-10.5(e)(1).   No objection was made by defense counsel to the instructions that were issued to the jury.

At sentencing, the trial court found aggravating factor three, the risk of reoffense, N.J.S.A. 2C:44-1(a)(3);  factor six, the extent of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6);  and factor nine, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9).   The judge did find factor two in mitigation, that defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2).   Defendant had been arrested on thirty-three prior occasions, and had been previously convicted of five indictable offenses, including drug distribution offenses.

Defendant raises the following points on appeal:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS.  (Not Raised Below)

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, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK [ 1] CHARGE) NOTWITHSTANDING THE STATE'S RELIANCE ON THE DEFENDANT'S ALLEGED ORAL STATEMENTS TO PROVE ITS CASE. (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, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE BY AN EXPERT WITNESS WHO TESTIFIED AS A FACT WITNESS.   (Not Raised Below)

A.  EVIDENCE THAT THE DEFENDANT WAS SITUATED IN A HIGH NARCOTICS TRAFFICKING AREA IS UNFAIRLY PREJUDICIAL

B. THE STATE FAILED TO LAY A PROPER FOUNDATION FOR THE ADMISSION OF EVIDENCE THAT MARKET AND BROAD STREET IS A HIGH NARCOTICS TRAFFICKING AREA

C. THE TRIAL COURT FAILED TO INSTRUCT THE JURY PROPERLY ON HOW TO EVALUATE FACT TESTIMONY GIVEN BY AN EXPERT WITNESS

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, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES

POINT V

THE POLICE VIOLATED 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, PAR. 7 OF THE NEW JERSEY CONSTITUTION

POINT VI

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED

POINT VII

THE SENTENCE IS EXCESSIVE:  THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM

i.

Defendant's first contention on appeal is that Eatmon should not have been permitted to testify that defendant said the word “sticks,” because Eatmon did not actually see defendant's lips move and therefore did not have firsthand knowledge of the facts as required by N.J.R.E. 602.   No objection is raised by defendant, however, as to Santiago's corroboration of Eatmon's observations that not only was defendant holding an orange prescription bottle in his hand, he was loudly repeating the word “sticks.”   On this basis, defendant asserts his right to due process of law was violated.

No objection was raised to Eatmon's testimony during the trial;  a witness may testify as to those matters within his or her personal knowledge.   See N.J.R.E. 602.   The reason for the absence of any objection, no doubt, is because the fact that Eatmon did not actually see defendant's lips move is meaningless.   He testified that he heard defendant say the words.   That is knowledge sufficiently firsthand to satisfy both the requirement of the evidence rule and of due process.   This argument does not merit further discussion in a written opinion.   R. 2:11-3(e)(2).

ii.

Defendant's second contention is that the trial court erred by failing to administer the Kociolek charge to the jury.   See Model Jury Charge (Criminal), “Statements of Defendant-Allegedly Made” (2004).   The Kociolek charge reminds jurors about the inherently unreliable nature of testimony regarding oral statements made by a defendant because of the “generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant.”  Ibid.

We review this claim pursuant to the plain error standard, because defendant made no objection to the omission at trial.   See State v. Savage, 172 N.J. 374, 387 (2002).   A conviction based on improper jury instructions is reversed only if “it is of such a nature as to have been clearly capable of producing an unjust result․”  R. 2:10-2.   We must determine whether, “within the factual context of the case and the charge as a whole,” the omission of the Kociolek charge produced such an unjust result.  State v. Crumb, 307 N.J.Super. 204, 250-51 (App.Div.1997).

Two witnesses testified under oath that they heard defendant repeat the word “sticks.”   The Kociolek instruction is simply unnecessary where the testimony is that defendant said just one word.   The omission did not produce an unjust result, as the charge was inapplicable to this circumstance.

iii.

Defendant's third point is that he was unfairly prejudiced by the testimony of the expert witness, which included the statement that the area in which he was arrested was a high drug trafficking area.   Defendant asserts that some form of “cautionary instruction” should have been given and furthermore, that the evidence was introduced without the State first establishing a proper foundation.

Testimony about the character of the area was well within Holloway's expertise and substantial experience in the field of law enforcement.   In any event, the judge instructed the jury about the expert's testimony before Holloway testified on the merits as well as during the final charge.   See Model Jury Charge (Criminal), “Expert Testimony” (2003).   This means that the jury was told that they had the right to reject or accept all or none or a portion of Holloway's testimony.   Additionally, the testimony was not unduly prejudicial because Eatmon and Santiago also testified about the area and their role in a special unit assigned to patrol the downtown.   Their testimony about the locale was similar in nature.

Defendant asserts that the trial court should have issued a separate instruction directing the jury as to how they should weigh Holloway's fact testimony.   This failure, defendant claims, makes Holloway's description of Market and Broad as a high narcotics trafficking area all the more prejudicial.   The characterization of the area, even if factual, simply did not require a separate instruction.   The case defendant offers in support of this claim relates to a fact pattern in which an expert's testimony may have telegraphed to the jury that he had information about a defendant outside the information supplied in the courtroom.   That is a scenario entirely different from the point being considered here.   See State v. Jackson, 278 N.J.Super. 69, 78 (App.Div.1994), certif. denied, 141 N.J. 95 (1995).

iv.

In his fourth point, defendant contends that his due process rights were violated by the trial court's failure to instruct the jury on the lesser-included disorderly persons offenses of failure to make a proper disposition, N.J.S.A. 2C:35-10(c), and wandering, N.J.S.A. 2C:33-2.1. Again, we do not agree.

“An offense is ․ included when ․ [i]t is 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).   A court may only charge the jury as to a lesser-included offense if “there is a rational basis for a verdict convicting the defendant of the included offense.”  N.J.S.A. 2C:1-8(e).   Lesser offenses must be charged if rationally based on the evidence.  State v. Reddish, 181 N.J. 553, 626 (2004).   Failure to give a lesser-included is error only when the instruction was required where supported by the evidence and “a rational basis exists supported by the evidence.”  State v. Cassady, 198 N.J. 165, 177-79 (2009).

Here, two officers observed defendant carrying an orange prescription bottle containing Alprazolam and advertising his wares for sale by saying the word “sticks.”   There was no error in defendant's conviction of the greater offenses, nor any rational basis on the record for the lesser charges to be presented to the jury.   The court's failure to instruct on the lesser-included offenses therefore does not produce an “unjust result.”

v.

Defendant's fifth contention is that his Fourth Amendment right to be free from unreasonable searches and seizures was violated because the officers lacked probable cause.   A search incident to arrest is an exception to the general warrant requirement as it prevents a suspect from “accessing a weapon or destroying evidence.”  State v. Pena-Flores, 198 N.J. 6, 19 (2009) (citations omitted).

In this case, defendant was seen openly offering drugs for sale, thereby establishing ample probable cause for arrest.   See ibid. (citing New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L. Ed.2d 768, 775-76 (1981)).   Hence, the subsequent search was lawful and there was no violation of defendant's Fourth Amendment rights.

vi.

Defendant's sixth point is that his application for judgment of acquittal at the close of the State's case pursuant to Rule 3:18-1 should have been granted, and that the court's failure to do so constitutes reversible error.   In deciding a motion for acquittal, the State is entitled to the benefit of all favorable inferences to be drawn from the evidence.  State v. Reyes, 50 N.J. 454, 458-59 (1967).   If “a reasonable jury could find guilt of the charge beyond a reasonable doubt,” the trial court must deny defendant's motion.   Ibid.

Defendant was heard by two officers advertising CDS for sale, and the drugs he named were seized after his arrest.   In an abundance of caution, the State nonetheless presented an expert witness to confirm that his conduct at the time of arrest was intended to solicit customers.   When the prescription bottles were examined by the officers, both bore the names of other persons.   Clearly, the State met its burden.   A reasonable jury could readily find the guilt of defendant based on the State's proofs.

vii.

Defendant's sentence, however, merits a second look.   We review sentencing decisions not to substitute our own judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the record.  State v. Bieniek, 200 N.J. 601, 607-09 (2010).   When a trial court's aggravating and mitigating factors are supported by the record, where sentencing overall complies with the criminal code, and where the individual sentence does not shock our conscience, a sentence will be upheld.  Ibid.

First, defendant was sentenced to a mandatory extended term because he was, as the trial judge noted, a second-time drug distributor.  N.J.S.A. 2C:43-6(f) requires that those who have been previously convicted of drug distribution “shall upon application of the prosecuting attorney be sentenced by the court to an extended term․”  Contrary to defendant's position, there was nothing either arbitrary or capricious about the State's request that the court impose a mandatory sentence in light of defendant's significant prior criminal history, including prior drug distribution convictions.

We note, however, that the court imposed the extended term both on the first count, simple possession, as well as the second count, possession with intent to distribute.   The mandatory extended term statute, N.J.S.A. 2C:43-6(f), is only applicable to persons who are sentenced for “manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance.”   It therefore should not have been imposed on the first count.

Furthermore, the court did not analyze whether the first and second counts should be merged.   See N.J.S.A. 2C:1-8(a)(2);  State v. Hardison, 99 N.J. 379, 386 (1985).   In these technical respects, the sentence did not comply with the Criminal Code and we remand solely to address these issues.

The court found aggravating factors three, six, and nine, all of which were amply supported by the credible evidence in the record, including defendant's prior criminal history.   See Bieniek, supra, 200 N.J. at 608.   In fact, after balancing factor two in mitigation against the aggravating factors, the judge imposed the lowest lawful extended term sentence in the second-degree range, a five-year term of imprisonment subject to three years of parole ineligibility, to run concurrent with a six-month term of imprisonment on the disorderly persons offense.

Accordingly, we remand the matter to the trial court to consider the issue of merger and to correct the imposition of the mandatory extended term as to only one offense.

Affirmed as to the convictions;  remanded for resentencing.

FOOTNOTES

FN1. State v. Kociolek, 23 N.J. 400, 421-22 (1957)..  FN1. State v. Kociolek, 23 N.J. 400, 421-22 (1957).

PER CURIAM