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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DONALD WILLIAMS, Defendant–Appellant.

DOCKET NO. A–4234–11T4

    Decided: March 27, 2014

Before Judges Messano and Hayden.Joseph E. Krakora, Public Defender, attorney for appellant (Karen Nazaire, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Estrella Lopez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Following a jury trial, defendant Donald Williams was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35–10(a)(1);  third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and (b)(3);  second-degree possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35–7.1;  third-degree distribution of a CDS, N.J.S.A. 2C:35–5(a)(1) and (b)(3);  and second-degree distribution of a CDS within 500 feet of a public park, N.J.S.A. 2C:35–7.1. The trial judge sentenced defendant to an aggregate term of nine years, with four years of parole ineligibility.

Before us, defendant raises the following arguments for our consideration:



We have considered these arguments in light of the record and applicable legal standards.   We affirm.

The record reveals the following facts.   On March 27, 2009, Detective James J. Malone, Jr. of the Elizabeth Police Department was driving with Detective Chris Flatley near Jefferson Park, investigating citizens' complaints of drugs being sold in the area.   Malone observed defendant standing on the street counting money, so he parked his vehicle directly across the street to further observe defendant.

Malone then observed a woman approach defendant, engage him in a conversation, and hand him money.   Defendant took the money, proceeded up a walkway to the front porch of a house, crouched down, retrieved an item from a black bag, and returned to the street.   Defendant handed the woman the item, and she immediately departed.1

A few minutes later, an older man, later identified as Ulysses Lee, similarly approached defendant and handed him money.   Police observed defendant take the money, return to the same front porch, crouch down, retrieve an item from the bag, and return to Lee. After defendant handed Lee an item, Lee departed.   Flatley radioed a description of Lee, who was then arrested.   When Lee saw police officers, he immediately dropped a small package, which was found to be a glassine envelope containing heroin.

Meanwhile, defendant left the area, at which point Malone and Flatley investigated the porch area from which they had observed defendant retrieve items.   There they found a black plastic bag containing seven glassine envelopes of heroin.   Two detectives, who were in the area assisting Malone and Flatley, arrested defendant nearby and found $61 on his person.

On August 13, 2009, a Union County grand jury indicted defendant on the five counts with which he was ultimately convicted.   At defendant's jury trial in August 2011, Lee testified against defendant as part of a plea agreement with the State.   Lee reported that he bought what he believed was a packet of heroin from defendant.   Lee attested that he knew defendant from the neighborhood and that defendant's wife and his son were friends.

Defendant testified on his own behalf and denied selling drugs or having any interactions with Lee. According to defendant, on the day in question, he walked from his house to a convenience store, then walked to his friend's house, and spoke to his friend's wife.   As he left his friend's house, he was arrested.

The jury convicted defendant on all counts.   On December 16, 2011, the trial judge sentenced defendant to a term of nine years with four years of parole ineligibility.2  In determining defendant's sentence, the judge found aggravating factor six, the extent of his criminal record;  and nine, the need for deterrence.  N.J.S.A. 2C:44–1(a)(6), (9).   Defendant had four prior indictable convictions, two disorderly persons convictions, one violation of probation, three municipal bench warrants, and two pending disorderly persons complaints.   The judge found no mitigating factors.   This appeal followed.

Defendant first argues that the trial judge erred in failing to fully instruct the jury with an appropriate identification instruction.   Defendant asserts that Malone's in-court identification was not reliable because he “lost sight” of defendant at one point, and there was no testimony concerning how Malone later identified defendant.   As to Lee, defendant alleges that his identification was contradictory as he first described defendant as a friend, and later as only someone from the neighborhood.   Defendant also attacks the credibility of Lee's identification claiming that during cross-examination Lee could not remember the clothing defendant wore on the date in question.   Defendant contends that “[h]ad the court read the model jury instruction on identification, the jurors would have had the proper standard by which to evaluate the eyewitness testimonies before them.”   We find these arguments unpersuasive.

At trial, while defense counsel agreed with the judge that this case was not a “true” identification case, he requested a modified identification charge to make it clear that the state had to prove identification beyond a reasonable doubt.   The defense requested this charge based on Malone's identification, but readily admitted that such charge was not applicable to Lee's identification.   The judge agreed, but decided that instead of giving the first paragraph of the model jury charge on identification,3 he would highlight the burden on the State to prove each element of each of the crimes charged beyond a reasonable doubt.   The judge initially charged the jury as follows:

Remember the burden of proving each and every element rests on the State, never shifts over to the defendant.   It's not Mr. Williams' duty or his obligation to prove his innocence or to even offer any proof relating to his innocence.   Now the State has the burden of proving the defendant guilty beyond a reasonable doubt.

Then, as the judge detailed each element of all the charges, he consistently reiterated that the State had the burden to prove, beyond a reasonable doubt, that defendant was the perpetrator.   When the judge concluded his charge to the jury, defense counsel did not object or request any additional charge.

We review defendant's argument under the plain error standard as no objection to the judge's instruction was raised.   See State v. Nero, 195 N.J. 397, 407 (2008).   Plain error is reversible only if “it is of such a nature as to have been clearly capable of producing an unjust result[.]”  R. 2:10–2.   Under that standard, “[r]eversal of defendant's conviction is required only if there was error ‘sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.’ ”  State v. Atwater, 400 N.J.Super. 319, 336 (App.Div.2008) (alteration in original) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).

“When identification is a ‘key issue,’ the trial court must instruct the jury on identification, even if a defendant does not make that request.”  State v. Cotto, 182 N.J. 316, 325 (2005).  “Identification becomes a key issue when ‘[i]t [is] the major ․ thrust of the defense[.]’ ”  Ibid. (alterations in original) (quoting State v. Green, 86 N.J. 281, 291 (1981)).   This is particularly true “in cases where the State relies on a single victim-eyewitness[.]”  Id. at 325–326 (citing State v. Frey, 194 N.J.Super. 326, 329 (App.Div.1984)).   Where “identification is a legitimate issue,” the failure to give an adequate charge will likely be reversible error, but where corroborative evidence is sufficiently strong, such failure may not constitute plain error.  State v. Davis, 363 N.J.Super. 556, 561 (App.Div.2003);  see also Cotto, supra, 182 N.J. at 326 (where overwhelming corroborative evidence exists, failure to give instruction is not error).

If an identification instruction is “appropriately requested and refused, ‘whether th[at] omission requires reversal is highly fact-sensitive.’ ”   State v. Walker, 417 N.J.Super. 154, 163 (App.Div.2010) (alteration in original) (quoting State v. McNeil, 303 N.J.Super. 266, 272 (App.Div.1997)).  “The same ‘highly-fact sensitive’ analysis applies when the instruction is not requested and the review is conducted under the plain error analysis.”  Ibid. (quoting State v. King, 372 N.J.Super. 227, 238–40 (App.Div.2004), certif. denied, 185 N.J. 266 (2005)).

While an extensive charge on identification is not always required, where the defendant claims misidentification, “the complete absence of any reference to identification as an issue or as an essential element of the State's case is improper.”  Davis, supra, 363 N.J.Super. at 561–62.   However, instructing the jury that the State had the burden of proving “ ‘each and every element of the offense, including that of the defendant's presence at the scene of the crime and his participation in the crime’ ” may be sufficient.  Cotto, supra, 182 N.J. at 326.   The Cotto court credited the “strength and quality of the State's corroborative evidence” in concluding there was no plain error where such instruction was given.  Id. at 327.

In this case, we agree with the judge that the identification issue raised by defendant did not warrant a complete identification instruction.   No line-up procedure was employed, and there was no claim of any impermissibly suggestive identification procedures.   Defendant was identified by two police officers and a person who knew him from the neighborhood.   In any event, under the facts here, the judge's instruction was sufficient.   Although brief, the instructions put the jury on notice that the State had the burden of proving that defendant was the person who committed the alleged crimes.   Moreover, the strength and quality of the State's corroborative evidence demonstrates that the failure to give the full instruction was not capable of producing an unjust result and thus did not constitute plain error.   R. 2:10–2.

Defendant also argues that his sentence is excessive because the trial judge erred in failing to consider mitigating factor one, that his conduct did not cause or threaten serious harm;  two, that he did not contemplate that his conduct would cause or threaten serious harm;  and eleven, the excessive hardship that would result from his imprisonment.  N.J.S.A. 2C:44–1(b)(1), (2), (11).   We disagree.

N.J.S.A. 2C:43–6(a) sets forth the maximum and minimum range of ordinary sentences for the different degrees of crime.  State v. Roth, 95 N.J. 334, 359 (1984).   The trial court must then “undertake[ ] an examination and weighing of the aggravating and mitigating factors listed in [N.J.S.A.] 2C:44–1(a) and (b).”  Ibid. In establishing an appropriate sentence, the court must decide whether there is a preponderance of aggravating or mitigating factors.  State v. Kruse, 105 N.J. 354, 359 (1987).

Our role in reviewing a trial judge's sentence is a limited one.   We “should not substitute [our] judgment for that of the lower court, and ․ a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion.”  State v. Gardner, 113 N.J. 510, 516 (1989);  see also State v. Kirk, 145 N.J. 159, 175 (1996).   When the court has “adhered to the sentencing principles set forth in the Code and defined in our case law,” and its findings of aggravating and mitigating factors are supported by the record, “its discretion should be immune from second-guessing.”  State v. Bieniek, 200 N.J. 601, 612 (2010).   We will only reverse if the sentence “shock[s] the judicial conscience” in light of the particular facts of the case.  Roth, supra, 95 N.J. at 364–65.

Here, the trial judge found no mitigating factors, but failed to express why he specifically rejected the factors defendant now asserts applied.   However, we discern from the record that defendant was not entitled to these mitigating factors.   See State v. Miller, 411 N.J.Super. 521, 534 (App.Div.2010) (noting that when a judge's findings and reasons for rejecting a mitigating factor can be discerned from the transcript, it is inappropriate to remand for clarification), aff'd, 205 N.J. 109 (2011).   First, mitigating factors one and two are inapplicable because drug distribution contains a harm that is implicit in the crime.   See State v. Tarver, 272 N.J.Super. 414, 435 (App.Div.1994).   Second, mitigating factor eleven does not apply to defendant because, while he has six children, the record contained no proof that he supported them.

Since the mitigating factors claimed by defendant are not supported by the record, the trial judge did not err in failing to consider them.   We decline to disturb the sentence set by the trial judge as we perceive no abuse of discretion, and the sentence does not shock our conscience.   See Gardner, supra, 113 N.J. at 516;  Roth, supra, 95 N.J. at 364–65.



FN1. The female was not apprehended..  FN1. The female was not apprehended.

FN2. The judge also dismissed a separately charged fourth-degree resisting arrest charge, N.J.S.A. 2C:29–2(a)(3)(a)..  FN2. The judge also dismissed a separately charged fourth-degree resisting arrest charge, N.J.S.A. 2C:29–2(a)(3)(a).

FN3. See Model Jury Charge (Criminal), “Identification:  In Court Identification Only” (rev.   July 19, 2012)..  FN3. See Model Jury Charge (Criminal), “Identification:  In Court Identification Only” (rev.   July 19, 2012).


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