STATE OF NEW JERSEY v. RASHON BAKER (2011)

Defendant Rashon M. Baker appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35–10a(1), and third-degree distribution of CDS, contrary to N.J.S.A. 2C:35–5a(1) and –5b(3).   After the judge denied defendant's motions for a judgment of acquittal or a new trial, the judge granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43–6f.   The judge then merged the possession conviction into the distribution conviction and sentenced defendant to an extended nine-year term with four years of parole ineligibility to run consecutively to another sentence defendant was already serving.   The judge also imposed various penalties and fines, ordered defendant to provide a DNA sample, and suspended his license for six months.   We now affirm.

In September 2006, Rutgers University Police Officer Swanetta Pitt and New Brunswick Police Officer Joshua Alexander were assigned to the Narcotics Task Force of the Middlesex County Prosecutor's Office.   On September 22, 2006, Pitt and Alexander participated in an undercover, prearranged controlled drug purchase at the Spain Inn in Piscataway.   Two other detectives from the Prosecutor's Office and three from the Piscataway Police Department acted as back-ups and monitored the situation.   At approximately 3:45 p.m., an individual, who was not a police officer, drove Pitt and Alexander to the Spain Inn in an unmarked vehicle.   Pitt was seated in the front passenger seat, and Alexander was seated in the rear passenger seat.   Both officers were dressed in plain clothes, and neither was armed;  however, the back-up officers were armed.

The target of their investigation, later identified as defendant, “[a]pproached the vehicle, opened the rear door on the driver's side, entered the vehicle, introduced hi[m]self, [and] spoke to the persons inside the vehicle.”   Neither officer gestured for defendant to enter the vehicle.   Pitt angled her body to view defendant as he was talking to Alexander.

Once defendant was inside the vehicle, “[he] just basically went right down to business.”   He and Alexander negotiated the price of an “eight ball” of cocaine, and defendant ultimately accepted $180, although he “usually charge[d] [$]200.”   Pitt saw defendant give Alexander “a clear plastic bag with a white powder substance.”   After Alexander paid for the drugs, he asked “the target” for his telephone number, which he provided so Alexander “could contact him in the future for any future buys.”

Once the transaction was completed, defendant exited the vehicle, and the officers drove first to a Task Force meeting in Piscataway, where they showed the group the evidence, and then to the Task Force office.   Defendant was not arrested at the scene.   A drug field test and a subsequent full analysis by the State Police Laboratory later confirmed that the white substance was 2.83 grams of cocaine.

Pitt and Alexander were the State's only witnesses at trial.   When recounting the events of September 22, Pitt mainly referred to defendant as “the target.”   She testified that “the target that we were going to make a contact with approached the vehicle.”   Defendant remained in the vehicle for “[t]wo minutes at the most,” and the only time she engaged him in conversation was to return his greeting.   Following the purchase, she and Alexander identified defendant from a photograph “maybe two hours at the max, an hour to two hours at the max” later.   She stated:  “Alexander, he looked at the photo, I looked at the photo and agreed that was the person that we met with.”

On cross, defense counsel asked Pitt, “You call the individual the target, correct?”   Pitt replied affirmatively, and defense counsel then asked, “And that's how you knew him at that point, the target?”   Pitt replied, “Yes.” Defense counsel never objected to her use of the term “target” at any time during trial.

Alexander testified that the drug buy took place in the daylight.   Because Alexander was seated next to defendant in the back seat of the vehicle, they were “really close to each other,” and their “shoulders were pretty much touching.”   Alexander explained that his “focus was totally on him.   And ․ I had back[-]up officers to basically keep an eye on me so I could keep my attention on him.”   The purchase took “not more than even four minutes” because the parties typically want to avoid getting caught by the police.   He explained that a first meeting with a dealer “usually takes a little bit longer because ․ the dealer might be a little apprehensive” and it is necessary to “gain their confidence.”   After the individual exited the vehicle, Alexander watched him put the money in his pocket and cross the street.

Alexander stated that he later identified defendant after viewing a single photograph on September 28, 2006.   He “knew it was him right away.”   He also identified defendant in court.   The prosecutor showed Alexander the photograph used for the identification while he was on the stand.   Alexander confirmed that he had “initialed that it was the gentleman who actually sold [him] the narcotics on the 22nd.”   Defense counsel never objected to the use of the photograph at trial and never sought a Wade ^{:  Double} hearing regarding Alexander's identification of defendant.

On cross-examination, defense counsel asked, “So prior to the meet there was some idea about what you were going to purchase when you got there?”   Alexander responded:  “We knew he was selling cocaine.   And pretty much they said that he usually deals in ․ [a] larger quantity.   So they gave me about $200[ and] said ․ see what you could do.”   Alexander stated that he was sitting sideways while watching defendant “because you got to look at a person to talk to them basically,” and defendant was sitting facing him.  “I'm pretty sure he was sizing me up just like I was sizing him up․  God forbid, something happens․  [G]ot to know what I'm up against basically.”

Defense counsel asked about the in-court identification, and Alexander stated that he recognized defendant “over a year later” even after conducting numerous other narcotics transactions.  “The only difference is he looks like he lost a little bit of weight.”   Defense counsel asked about the single-photograph identification made six days after the purchase, and Alexander explained that the identification took place in “the office” with “people around.”   He did not recall if anyone else looked at the photograph with him.   He had not met defendant prior to the purchase and did not have his full name on September 22.

The officers did not arrest defendant on September 22 because they had anticipated making future purchases from him.   Alexander spoke with defendant by phone, and defendant “trusted” him after their first “good meeting.”   However, they ultimately did not make any subsequent purchases because defendant wanted to meet in Plainfield, which is in a different county.   Alexander further explained that arrests after a first purchase “would serve no purpose” because it would “blow out [their] undercover.”   The aim of the investigation is to meet with a dealer a couple of times “to get a little bit more quantity.”   The first transaction is “to meet him and ․ get an I.D. of him ․ see who he was.   And then, ․ try to I.D. him at a later time.”

Defendant testified and denied ever seeing Pitt or Alexander before trial, being in Piscataway on September 22, 2006, or ever selling drugs to Alexander.   He found Pitt's testimony “odd” because he had “been in situations ․ similar to the one that they were discussing.   And I know if I was in that situation, I wouldn't get in a car.   I would feel suspicious about somebody looking at me from a front seat, turning around completely backwards looking at me.”   He “would have got out [of] the car and left.”   Further, based on his prior experiences selling drugs, he would “have never got [sic] in a car with three people.”   He admitted on direct that he had been convicted of selling drugs in 1995 and 1999 and had last sold drugs nine years earlier.   The jury did not credit his testimony and returned a guilty verdict on both charges.

On July 18, 2008, prior to sentencing, defendant moved for a new trial and a judgment of acquittal based on “the issue of identification, which is the core issue in the case.”   Agreeing with the prosecutor, the judge denied the motions and found that the “degree of variance between the testimon[ies] of the two undercover police officers involved with regard to ․ exactly the manner in which the identification was made” was an issue of fact for the jury.

The prosecutor then moved for a mandatory extended term, and defense counsel conceded that defendant was “extended[-]term eligible.”   He then argued for the minimum sentence allowable, particularly because defendant had received a maximum term for a prior third-degree offense and was currently serving a five-year sentence.   Also, because defendant was out on bail when the offenses were committed, the sentence could run consecutively to the sentence on the earlier crime.

In imposing sentence, the judge noted that defendant had six juvenile complaints, which were all dismissed.   Moreover, he had five prior indictable convictions, and “[e]ach one ․ exposes [defendant] to a mandatory extended term.”   The judge did not consider defendant's 2007 conviction as a prior conviction as it was “probably still on appeal.”   Additionally, the judge noted defendant's substance abuse history, unemployment, and child support arrearages.   He found that three “particularly weighty” aggravating factors applied:  “[t]he risk of commission of another offense, the need to deter this defendant and others from violating the law[,] and the extent of his prior record and the seriousness of the offense for which he's been convicted.”   He also found that no mitigating factors applied.

Defendant raises the following issues for our consideration:

POINT I—REPEATED REFERENCES TO A “TARGET” OF THE POLICE OPERATION, ESPECIALLY WHEN COUPLED WITH THE JURY'S AWARENESS THAT THE POLICE UTILIZED A SINGLE PHOTOGRAPH OF [DEFENDANT] IN THE SHOW–UP IDENTIFICATION PROCEDURE, WAS INADMISSIBLE AND HIGHLY PREJUDICIAL HEARSAY THAT IMPLIED THAT THE POLICE HAD SUPERIOR KNOWLEDGE, OUTSIDE THE RECORD, IMPLICATING [DEFENDANT] AS THE DRUG SELLER.  (Not Raised Below.)

POINT II—DEFENSE COUNSEL'S FAILURE TO REQUEST A [WADE ] HEARING DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, REQUIRING A REMAND[.]

POINT III—THE IMPOSITION OF A SENTENCE JUST ONE YEAR SHORT OF THE MAXIMUM EXTENDED TERM FOR THIS GARDEN–VARIETY THIRD–DEGREE CRIME WAS AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION[.]

I.

Because defendant's first argument was not raised during trial, the plain-error standard applies:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10–2.]

To satisfy this standard, the “unjust result” must be “sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.”  State v. Macon, 57 N.J. 325, 336 (1971).

Defendant asserts that “Pitt's testimony that the man who sold cocaine to Alexander was the target of their undercover operation was a clear signal to the jury that the police had information from an unknown source” implicating defendant, particularly since the police only used one photograph for identification.   He points out that Pitt used the term “target” more than twenty times.   Defendant contends that this was “inadmissible hearsay” in violation of his confrontation rights.   Acknowledging that defense counsel did not object, he argues that reversal is nonetheless required because “[t]he State's evidence was far from overwhelming” as the identification evidence was “weak.”   Thus, the “highly prejudicial hearsay ․ had the clear capacity to result in an unjust verdict.”   He urges that the use of the term violated State v. Bankston, 63 N.J. 263 (1973).

The State responds that defendant's “belated claim should be rejected” because “[t]he challenged testimony, when viewed in context, did not imply to the jury that the police had superior information;  it was simply a label used to explain what led to the controlled purchase of cocaine.”   The term was used because “[t]he police had to explain why they came to be in the parking lot of the Spain Inn.” It urges that “[d]efendant has not demonstrated error, let alone plain error.”

In Bankston, the Court drew a distinction between hearsay and nonhearsay:

It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so “upon information received.”   Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.   However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.   Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.

[Bankston, supra, 63 N.J. at 268–69 (emphasis added) (citations omitted).]

The Court added, “[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.  Id. at 271;  see also State v. Branch, 182 N.J. 338, 351 (2005) (finding that officers may not imply possession of knowledge outside the record).

The testimony that defendant was the target of an investigation is nothing more than an explanation for why the officers went to the Spain Inn to meet defendant.   The officers were not investigating a crime that had already occurred but were making a prearranged drug purchase from defendant.   Thus, the use of the word “target” did not constitute impermissible hearsay and was no more than a mere description of defendant, whose name could readily have been substituted for the word “target.”   Furthermore, the offenses occurred in the officers' presence so there was no informant respecting a completed crime.

We also note that defendant admitted on direct that he had a history of selling drugs, and the jury was aware that he had prior convictions as they were used for impeachment, albeit in sanitized form.   Furthermore, the term “target” was adopted by both the prosecutor and defense counsel;  defense counsel made no objections.   See State v. Swint, 328 N.J.Super. 236, 256 (App.Div.) (finding that courts “may infer from the lack of an objection that counsel recognized that the alleged error was of no moment or was a tactical decision to let the error go uncorrected at the trial” (citation omitted)), certif. denied, 165 N.J. 492 (2000);  State v. Cordero, 293 N.J.Super. 438, 442 (App.Div.1996) (“The lack of an objection is itself a serious omission, for if it had been lodged the trial court would have had an opportunity to remedy the omitted instruction before the case went to the jury.” (citations omitted)), certif. denied, 147 N.J. 577 (1997).

Defendant's claims of prejudice are also weakened by his counsel's line of questioning.   On cross examination of Alexander, defense counsel asked, “So prior to the meet there was some idea about what you were going to purchase when you got there?”   This prompted Alexander's response:  “We knew he was selling cocaine.   And pretty much they said that he usually deals in ․ [a] larger quantity.   So they gave me about $200[ and] said ․ see what you could do.”   See State v. McDavitt, 62 N.J. 36, 48 (1972) (finding no plain error when “[t]he defense knowingly pursued a subject fraught with the danger of ․ disclosure” because, “[h]aving provoked the response, defendant cannot claim he was prejudiced thereby”).   Accordingly, we find no merit in these contentions.   Any error in the use of the word “target” does not raise a reasonable doubt about the jury's verdict.  Macon, supra, 57 N.J. at 336.

II.

Defendant asserts that “[t]here was ample evidence at the trial that the out-of-court identification procedure the police used to identify [defendant] was impermissibly suggestive.”   As a result, defendant “was entitled [to] a pretrial determination of whether the procedure tainted Alexander's in-court identification of him,” particularly since the “identification was the only evidence tying [him] to the crime.”   Thus, defense counsel's failure to request a Wade hearing violated defendant's Sixth Amendment right to the effective assistance of counsel, requiring a new trial, or at the least, a remand for a hearing.

The State counters that “defendant's attack against trial counsel should be rejected, since there is no evidence in the record to show that there was impermissible suggestiveness with the identification procedure.”   Thus, “the strength or credibility of the identification was for the jury to decide.”   Further, “even if the hearing had been requested and conducted, defendant has failed to show that the hearing would have resulted in suppression of the identification.”

This was not a controlled buy where the police were using an informant to purchase drugs from a suspect unknown to the police.   This was also not a drug transaction between a buyer and purchaser who were engaged in suspicious behavior that the police observed during street surveillance where the police were making observations from a distance.   Nor was it a casual purchase by an undercover officer from an unknown person.   This was an arranged face-to-face purchase from a “target” known to the police.   Indeed, defendant at the time of this arrest was out on bail for an earlier drug-related arrest and indictment in the very same county as this offense.   Clearly, defendant was known to the Narcotics Task Force and, presumably, was “targeted” for this arranged purchase because of that familiarity.

To establish a prima facie case of ineffective assistance of counsel, the defendant must meet the two-part standard formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted in New Jersey under State v. Fritz, 105 N.J. 42, 57–58 (1987).   To meet the first prong, the defendant must show that “counsel's representation fell below an objective standard of reasonableness.”  Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   If a defendant satisfies the first prong of Strickland /Fritz, he or she must then show that the error was “prejudicial to the defense.”  Id. at 692, 104 S.Ct. at 2067, 80 L. Ed.2d at 696.  “[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   If the prejudice prong is not satisfied, a court need not consider whether counsel was ineffective.  Id. at 697, 104 S.Ct. at 2069, 80 L. Ed.2d at 699 (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”).

We are satisfied that counsel's performance in not seeking a Wade hearing could not possibly be found ineffective in light of the facts surrounding the photographic identification here at issue.   Even if it could be, defendant has not demonstrated how he was prejudiced by it when Alexander emphatically identified defendant in court.   Defendant's Strickland claim lacks merit.

III.

Last, defendant asserts that “[t]he facts of the case and a proper weighing of the applicable aggravating and mitigating factors do not support the imposition of a nearly maximum extended-term sentence for the offense.”   While defendant has several prior drug convictions, he urges that “his prior record was entitled to far less weight than the court accorded it.”   Also, “[t]here was nothing exceptional about the offense that could justify a sentence virtually at the top of the extended-term range.”   Thus, he urges that a remand for resentencing is necessary.

The State urges that “defendant's challenge to his sentence should be rejected” because the extended term sentence was reasonable.  “The need to deter defendant was manifest in this case, and the aggravating factors are clearly supported [by] the record.”   Further, although the judge declined to consider defendant's 2007 conviction, “there was no legal impediment to him doing so,” which weakens defendant's argument “that his prior record was not worth very much weight.”

Our review of a sentencing decision requires consideration of whether (1) the judge used the correct sentencing guidelines, (2) substantial record evidence supports the judge's fact-findings, and (3) the judge clearly erred in applying the guidelines to the facts.  State v. Roth, 95 N.J. 334, 365–66 (1984).   Further, we must “decide whether application of the guidelines makes a particular sentence clearly unreasonable.”  State v. Tarver, 272 N.J.Super. 414, 434 (App.Div.1994) (citation omitted).

Here, defendant does not dispute that he was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43–6f and 2C:44–3a as a persistent offender.   Moreover, he was subject to the imposition of a consecutive sentence pursuant to N.J.S.A. 2C:44–5h because he was out on bail at the time he committed the offenses.   Thus, the possible sentencing range was from five to ten years.  N.J.S.A. 2C:43–7a(4).   Nonetheless, defendant argues that the judge should have imposed a sentence closer to the minimum permitted.

We find no abuse of discretion in the sentence imposed because specific deterrence was clearly required here, giving greater weight than usual to aggravating factor (9).  N.J.S.A. 2C:44–1a(9).   Neither were defendant's prior convictions remote under N.J.S.A. 2C:44–3a because his 1999 conviction with a four-year prison term was only seven years before the offenses committed in 2006.   Indeed, during a Sands /Brunson ^{:  Double} hearing, defense counsel sought to exclude the convictions dated prior to 1999 but acknowledged that an intervening 1999 conviction, which had a four-year sentence, “sort of chops down [the] remoteness argument.”   Although the sentence imposed was toward the high end of the permissible range, the judge complied with the requirements of Roth, supra, 95 N.J. at 365–66, and we see no basis for disturbing it.

Affirmed.

FOOTNOTES

FOOTNOTE.  FN:  Double.  United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967).

FOOTNOTE.  FN:  Double.  State v. Sands, 76 N.J. 127 (1978);  State v. Brunson, 132 N.J. 377 (1993).

PER CURIAM