STATE OF NEW JERSEY v. JONATHAN GOMEZ JOHN GAUDIN AND JAMES LEONARD (2012)

Defendant Jonathan Gomez appeals from his conviction for second-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35–7.1, and the related offenses of CDS possession, N.J.S.A. 2C:35–10a(1), and CDS possession with intent to distribute, N.J.S.A. 2C:35–5a(1) and N.J.S.A. 2C:35–5b(3).   He also appeals from the aggregate sentence, imposed after merger, of ten years imprisonment with three and one-half years of parole ineligibility.¹

On this appeal, defendant raises the following points for our consideration:

POINT I:  ADMISSION OF IMPROPER OPINION TESTIMONY AND OTHER CRIMES EVIDENCE DEPRIVED THE DEFENDANT OF A FAIR TRIAL.  [Not Raised Below.]

POINT II:  THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.

POINT III:  THE COURT IMPOSED AN EXCESSIVE SENTENCE.

For the reasons that follow, we affirm the conviction and the sentence.

I

We begin by considering the suppression motion.   The State introduced the following evidence.   According to Elizabeth Police Officer Luis Figueredo, in the early morning hours of March 5, 2009, he and his partner were traveling in an unmarked police vehicle in the vicinity of West Grand Street and Routes One and Nine. The area was known for frequent narcotics sales activity, and he had previously made many arrests there.

At around 2:00 a.m., the officers observed a man sitting in a car that was parked with the engine running, blocking a driveway.   They “ran the plate of the vehicle and it came back suspended driver.”   After parking on a nearby side street and observing the car for a few minutes, the officers saw the driver “motioning with his hand ․ out the window” to passing pedestrians.   In Figueredo's experience, that conduct was typical of someone “attempting to sell drugs.”   Figueredo then saw a woman approach the car, speak to the driver, and hand him “what appeared to be U.S. currency,” in exchange for which the driver handed her “an item.”   The woman “grabbed the item” and walked away.²

Figueredo then drove his vehicle in a U-turn to approach defendant's car, but defendant drove away “at a high rate of speed.”   The police gave chase, with lights and siren on, attempting to stop defendant's car.   During the chase, defendant's car turned right on Reed Street ³ , and as defendant made the turn he threw an object out “the driver's side window.”   After defendant was apprehended, Figueredo went back to that area on Reed Street and retrieved the object, which turned out to be a plastic bag containing sixteen vials of cocaine.   The police also seized $155 in currency from defendant's pocket.

In arguing the suppression motion, defense counsel contended that Figueredo was not a credible witness and that defendant did not voluntarily abandon the bag of drugs that he threw from the car.

In an oral opinion placed on the record immediately after the hearing on August 24, 2010, the trial judge found that, although Figueredo's testimony was inconsistent on certain minor details, he was credible “as to the main portions of what's involved here.”   The judge considered that the police had good reason to initially observe the car, which was blocking a driveway in a high narcotics area early in the morning and was being driven by a person with a suspended license.   Based on what Figueredo then observed, the judge found he “had sufficient basis, considering the area, considering the time of the morning, to believe that he witnessed [a] hand-to-hand [drug] transaction.”

Citing State v. Anaya, 238 N.J.Super. 31, 36 (App.Div.1990), State v. Guerrero, 232 N.J.Super. 507, 507–11 (App.Div.1989), and State v. Valentine, 269 N.J.Super. 508, 508–11 (App.Div.1993), the judge concluded that these observations gave the officer probable cause to arrest defendant and to search him incident to the arrest.   Relying on State v. Sharpless, 314 N.J.Super. 440, 454 (App.Div.), certif. denied, 157 N.J. 542 (1998), and State v. Farinich, 179 N.J.Super. 1, 6 (App.Div.1981), aff'd o.b., 89 N.J. 378 (1982), the judge concluded that when defendant threw the bag of drugs out the window, he abandoned it and had no further reasonable expectation of privacy with respect to it.   The judge concluded that the bag of drugs was in plain view, lying in the street, and Figueredo properly seized it.

In reviewing the trial judge's decision on the suppression motion, we must defer to his factual findings so long as they are supported by sufficient credible evidence, and we owe special deference to his credibility determinations.  State v. Diaz–Bridges, 208 N.J. 544, 565 (2011);  State v. Elders, 192 N.J. 224, 243–44 (2007).   On this appeal, defendant once again argues that Figueredo was not a credible witness.   However, based on our reading of the motion transcript, we find no basis to disturb the judge's well-articulated credibility findings.

Defendant further argues that the officers did not have probable cause to arrest or detain him, he did not voluntarily abandon the bag of drugs as the police were chasing him, and the police were not properly in the viewing area when they spotted the bag of drugs in the street.   We have no hesitation in concluding that, based on his observations, Figueredo had probable cause to arrest defendant, and defendant abandoned the bag of drugs.   See State v. Moore, 181 N.J. 40, 46–47 (2004);  State v. Gibson, 318 N.J.Super. 1, 11 (App.Div.1999).   Defendant's arguments are without sufficient merit to warrant further discussion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons stated in the judge's cogent opinion.

II

We turn next to defendant's arguments based on the trial itself.   The State presented two witnesses, Officer Figueredo and Detective William Mannix.   Defendant presented no witnesses.

Officer Figueredo's trial testimony was similar to his testimony at the suppression motion.   He stated that he and his partner were patrolling an area known for drug transactions, robberies, and other crimes.⁴  They observed defendant, parked in a car that had the engine running and the headlights on, appearing to be trying to wave down passing pedestrians.   He described observing the woman approach the car, give defendant money in exchange for an object, and walk away.   Asked why he pursued defendant instead of the woman, he responded:  “Because from what I saw[,] the driver in the vehicle sold drugs to the female.   So the car took off.   We felt that the car was a higher threat than the female that was walking away from the car.”   There was no objection to that testimony.   He next described chasing defendant's car, apprehending defendant, and recovering the bag of drugs.⁵

The prosecutor then asked Figueredo if he understood the term “hand-to-hand transaction.”   He defined it as:  “when one person—usually, somebody that is trying to buy drugs hands over money to the other person that is the seller and then, in return, the seller quickly hands over an item to the other person․  It's a quick transaction.”   There was no objection to any of that testimony.

Figueredo identified the bag of drugs and described the vials as loose in the bag, rather than banded together.   He testified that thirteen vials were sealed with blue caps and the other three were sealed with brown caps.   He also described the denominations of the bills comprising the $155 on defendant's person:  “one $50 bill;  four $20 bills;  one $10 bill;  and then 15 singles.”   Figueredo next provided extensive testimony concerning the area of the arrest, the lighting at the time, and other matters.

On cross-examination, defense counseled questioned Figueredo extensively and in great detail concerning his observations and actions before, during, and after the arrest, in an attempt to undermine his credibility.   In focusing on the woman who approached defendant's car, defense counsel asked Figueredo:  “And this was a female you believed had just bought drugs from Mr. Gomez?”   He responded, “Yes.” Defense counsel continued the questioning as follows:

Q: And so, arguably speaking she should have had a vial or so that would have matched the cap in terms of the CDS that you found on the street?

A: Yes. If she was still in the area, yes.

Q: And that wasn't important to you to try to confirm your observations?

A: Yes, it was.

Q: But you did nothing about follow-up to try to locate that female?

A: We drove past the area on the way back to headquarters.

Later in the cross-examination, defense counsel elicited from Figueredo an admission that it was “possible” that the woman handed defendant a “note” rather than money.   She also asked Figueredo to confirm that:  “when people are engaging in buying and ․ selling of drugs, ․ they are doing so very quickly”;  “they don't want to draw attention to themselves”;  and “they ․ are also trying to conceal whatever it is that they are handing over.”   He agreed with those statements.

On re-direct examination, Figueredo was asked questions designed to respond to the extensive cross-examination about the woman's actions and his failure to apprehend her.   He testified that the interaction between defendant and the woman occurred “[w]ithin a matter of seconds,” and that in his experience, drug buyers typically disappear from the scene “within seconds” after a purchase.   He testified that there were many abandoned houses in the area, and drug users would typically “go into the abandoned houses or go in an alleyway and use whatever they just bought.”

He also explained that he did not call for backup assistance in apprehending the woman, “[b]ecause [defendant's] car accelerated.   So we thought that the driver was trying to elude us.   So we concentrated on the car and not on transmitting the description of the female.”   However, when defendant pulled his car into a driveway on Reed Street, Figueredo “saw that he ․ wasn't eluding us.”   At that point, he called for backup assistance, because “[w]e didn't know what was in the car.”   On re-cross-examination, defense counsel asked further questions about the high narcotics area, trying to create an inference that, because there were so many street level drug dealers in the area, the drugs Figueredo found could have been abandoned by someone other than defendant.

The State next presented testimony from Detective Mannix, “an expert in the field of narcotics and narcotics distribution.”   After ruling that Mannix could testify as an expert, the judge immediately gave the jury an extensive instruction about expert testimony, including the following:

Remember, the ultimate determination as to whether the defendant is guilty or not guilty and whether the State has proven the defendant's guilt beyond a reasonable doubt is to be made by you, and you alone, not by any witness, including an expert witness.

Without objection, the prosecutor then presented Mannix with a hypothetical containing the essential facts to which Figueredo had testified concerning his observations of the transaction with the woman, and the amount and packaging of the drugs the police recovered.   Mannix opined that “[w]hoever possessed those drugs possessed them with the intent to distribute them.”   Again, there was no objection.

Mannix then explained in more detail why the packaging of the drugs was consistent with packaging for sale rather than immediate consumption.   He explained how drug dealers buy cocaine a gram at a time, and re-package it in much smaller amounts in little glass vials for sale on the “street level.”   He also explained that a typical street-level drug buyer, purchasing for his or her own use, will buy “one or two vials.”   They would usually ingest the contents of one vial immediately and save the other one for later consumption.   He recounted that in the arrests he had made, “it's, generally, one or two vials we locate on people.”   He testified that he had never seen any street-level buyer purchase “16 vials” of cocaine.

Mannix also testified that, in his experience, drug buyers carry little or no money, beyond what they need to purchase one or two vials of cocaine:  “It's dangerous to buy drugs.   They could get robbed, beat.   So they come in [to the area] with what they will use to buy their drugs.”

Mannix further explained that in those situations where vials were being sold in larger quantities, such as “10 vials at a time,” they would be wrapped in a bundle rather than left loose.   This would make it easier for the drug dealer to “keep a count of those vials” and easer to discard them if the police approached.   He also described in some detail how a hand-to-hand transaction worked, and why street level drug dealers try to remain mobile while dealing, in order to evade the police.   During defense counsel's extensive cross-examination, Mannix insisted that a buyer wanting to purchase the equivalent of sixteen vials of cocaine would not buy sixteen individual vials, but instead “would buy a gram amount for a better price.”   On re-direct, he explained that a gram, sold in bulk, would be packaged in a “knotted plastic bag or druggist fold, a paper.”

In her summation, defense counsel argued that there was no proof of a hand-to-hand drug transaction, and she implied that what Figueredo witnessed between defendant and the woman could just as well have been related to prostitution.   She vigorously attacked Figueredo's credibility concerning the entire incident, including his alleged recovery of the bag of drugs.   She also briefly argued that a buyer of drugs might want to purchase more than one or two vials at a time, in order to “limit their exposure” to the dangers of buying drugs on the street.

In response, the prosecutor argued that Figueredo did not fabricate his testimony, and the evidence did not suggest that the woman was a prostitute.   She further explained that while defendant was not charged with drug distribution, there was “circumstantial evidence to prove that he possessed these 16 vials with the intent to distribute them.”

In challenging his conviction based on the trial evidence, defendant contends that the State's witnesses improperly opined as to his guilt and that the State improperly introduced evidence of other crimes or bad acts, contrary to N.J.R.E. 404(b), including the crime of “eluding.”   In light of the overwhelming evidence of defendant's guilt, none of those contentions justifies reversing his conviction.

Relying on State v. McLean, 205 N.J. 438 (2011), defendant argues that it was plain error to permit Figueredo to testify that defendant sold drugs, as opposed to simply describing what he saw and letting the jury decide whether what Figueredo observed was sufficient to convince them that defendant sold drugs to the woman.   He also argues that it was unnecessary for Mannix to offer expert testimony on the nature of hand-to-hand transactions, because lay jurors did not need expert testimony to help them understand such a straightforward transaction.

In McLean, the Court addressed “the appropriate roles of expert and lay opinion testimony in the context of transactions involving street sales of illegal drugs.”  Id. at 449.   While an expert may appropriately testify concerning methods of street-level drug distribution, and whether a particular quantity of drugs was likely intended for sale or personal use based on its packaging and other factors, the expert may not opine on the ultimate issue of whether the defendant is guilty of selling drugs.  Id. at 454.   Nor may a lay witness testify to an opinion on defendant's guilt.  Id. at 461.

In minor respects, the testimony of Figueredo and Mannix may have transgressed the limits set in McLean.   But we conclude that defendant is barred from raising the issue by the doctrine of invited error.   See State v. Kemp, 195 N.J. 136, 155 (2008).   At trial, the defense not only failed to object to Figueredo's testimony, but defendant's attorney made skillful use of that evidence, attempting to turn it against the State to undermine Figueredo's credibility.   The defense also did not object to similar testimony from Mannix.   In those circumstances, we conclude that allowing the evidence to be admitted was part of the defense strategy, and defendant is therefore barred from appellate relief on this point.  Ibid.

Furthermore, even if we consider the issue, it is without merit.   There was overwhelming evidence that defendant possessed sixteen vials of cocaine, and, considering only the properly-admitted evidence, there was un-rebutted expert testimony that such a large quantity of drugs, packaged in individual vials, was intended for distribution rather than personal use.   There was no testimony that defendant was a drug addict or a drug user.

Further, given all the surrounding circumstances, reasonable jurors would have concluded that defendant was selling drugs to the woman, even without Figueredo's expression of his opinion on that point.   On this record, there is no reasonable doubt that defendant would have been convicted of CDS possession with intent to distribute, even without the evidence he now claims was admitted in error.  Id. at 156;  State v. Macon, 57 N.J. 325, 336 (1971).   The verdict was in no way a miscarriage of justice.   R. 2:10–2.

Defendant's remaining arguments challenging his conviction are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add only that reasonable lay jurors would likely have understood Figueredo's brief reference to defendant “eluding us” as meaning that defendant was fleeing, not that he was committing the crime of eluding a police officer.   And, in any event, Figueredo testified that very shortly thereafter, he realized that defendant was not trying to “elude” the police.

III

Finally, we address the sentence.   At the sentencing hearing, there was no dispute that defendant was eligible for a mandatory extended term due to his prior criminal record.   The State asked the judge to impose an aggregate term of eight years in prison with a four-year period of parole ineligibility.   Defense counsel argued for a five-year term with a three-year parole bar.

After reviewing defendant's extensive prior history of CDS offenses, and his violations of probation, the judge found that the aggravating factors preponderated over the non-existent mitigating factors.   He noted that although count two (possession with intent) merged into count three (possession with intent near a public facility), the court was still required to impose a mandatory minimum period of parole ineligibility on count two that would survive the merger.   He sentenced defendant to nine years with a three and one-half year parole bar on count two.   He imposed a ten year flat sentence on count three.   The judge then imposed a concurrent, rather than consecutive, five-year sentence on another CDS charge to which defendant had entered a guilty plea, and also imposed a concurrent sentence for a violation of probation.

On this appeal, defendant contends that the sentence was excessive.   We cannot agree.   The aggregate term imposed was fair and well-considered.   We find no abuse of discretion or other error in the sentence.   See State v. Bieniek, 200 N.J. 601, 607–08 (2010);  State v. Roth, 95 N.J. 334, 363–64 (1984).   Defendant's sentencing arguments are without sufficient merit to warrant further discussion.   R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

FN1. Defendant was also charged with hindering his own apprehension, but that charge was dismissed on the State's motion, and the jury was so advised by the trial judge..  FN1. Defendant was also charged with hindering his own apprehension, but that charge was dismissed on the State's motion, and the jury was so advised by the trial judge.

FN2. On re-direct, Figueredo described what a “hand-to-hand” drug transaction was, and testified that he had personally observed such transactions at least thirty times..  FN2. On re-direct, Figueredo described what a “hand-to-hand” drug transaction was, and testified that he had personally observed such transactions at least thirty times.

FN3. In the record, the street name is also spelled “Reid.”.  FN3. In the record, the street name is also spelled “Reid.”

FN4. Far from objecting to this testimony, defense counsel attempted to use it for strategic advantage.   She emphasized on Figueredo's cross-examination that it was a high crime area, featuring prostitution, and that it was “a high area to both buy and sell” drugs and for loitering for the purpose of buying drugs.   This testimony obviously was designed to suggest to the jury that defendant could have been in the area to buy rather than sell drugs, or to solicit a prostitute..  FN4. Far from objecting to this testimony, defense counsel attempted to use it for strategic advantage.   She emphasized on Figueredo's cross-examination that it was a high crime area, featuring prostitution, and that it was “a high area to both buy and sell” drugs and for loitering for the purpose of buying drugs.   This testimony obviously was designed to suggest to the jury that defendant could have been in the area to buy rather than sell drugs, or to solicit a prostitute.

FN5. Later in his testimony, Figueredo clarified that the drugs were in a “clear” plastic bag..  FN5. Later in his testimony, Figueredo clarified that the drugs were in a “clear” plastic bag.

PER CURIAM