STATE OF NEW JERSEY VS. SHARRON GADDY (15-10-0685, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5599-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARRON GADDY,
Defendant-Appellant.
________________________
Submitted June 5, 2019 – Decided July 3, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-10-0685.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen W. Kirsch, Assistant Deputy Public
Defender, of counsel and on the brief).
Jennifer Davenport, Acting Prosecutor of Union
County, attorney for respondent (Milton Samuel
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After a jury trial, defendant appeals from his June 12, 2017 conviction and
sentence of eighteen years in prison with six years of parole ineligibility for
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(l), and second-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(l) and (b)(3).
Defendant argues on appeal that the State engaged in prosecutorial misconduct
and his sentence is excessive. After reviewing the record in light of the
contentions advanced on appeal, we affirm.
The following facts were revealed at trial. On May 16, 2015, Plainfield
Police Sergeant Christopher Fortunka and eight other officers conducted
surveillance of defendant's home. A black Acura MDX was parked in front of
the house. A SUV drove up to the house, defendant came outside, and the driver
of the SUV exited his vehicle. The two spoke and entered the house.
After watching the house for more than an hour, the officers approached
the home with a search warrant. The storm door was closed, but the front door
remained open. When they announced they were the police, defendant locked
both doors. The front door had a frosted window, allowing the officers to see a
"shadow" heading up the stairs. After trying unsuccessfully to open the locked
doors, the police used a battering ram to enter.
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Upon entering the house, Fortunka and another officer went upstairs to
follow the "shadow." They saw defendant coming from the bathroom.
Defendant said he had just flushed marijuana down the toilet. After defendant
was arrested, a small bag of marijuana in the basement bedroom was found.
In the master bedroom, Fortunka found "[a] small amount of cocaine . . .
drug paraphernalia, [and] money." He found a container with "eight tin-foil
folds [of] suspected CDS [(controlled dangerous substance)] and one knotted
bag of suspected CDS"; "three small black digital scales" with "white powdery
residue"; "a roll of tin foil and pre-cut small pieces of tin foil"; a safe containing
$8427 in the master bedroom closet; and defendant's expired driver's license.
More than $1600 was also found in jars.
When arrested, defendant had on his person keys to the safe and the Acura
MDX, a phone and $459. With a warrant to search the Acura MDX, Fortunka
found in the center console a "green change purse containing [forty-five] tin-foil
folds of suspected CDS, a sandwich bag containing [sixteen] tin-foil folds [of]
suspected CDS, and another sandwich bag containing [eleven] tin-foil folds of
suspected CDS."
At trial, Union County Prosecutor's Office Detective Kevin Kolbeck, Jr.
testified as an expert in "the field of identification, packaging, use, sale, and
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distribution of controlled dangerous substances" about the packaging and
pricing of cocaine for street level distribution and personal use. Margaret
Cuthbert, a Union County Prosecutor's Office Forensic Laboratory scientist,
provided expert testimony that the seventy-two foils and three scales were
submitted for tests and contained 1.29 ounces of cocaine.
Defendant's wife, K.,1 testified that she lived at the house with defendant,
their three daughters, and her half-brother, who had been living at the house
since 2012. Her brother lived in a bedroom in the basement, which had a
separate bathroom. K. stated he was addicted to drugs and she did not want him
to be near her daughters.
K. also testified that the money in the jars was "savings for vacations." At
the time of his arrest, defendant was working for a company where he was paid
"under the table" with cash. K. explained that both she and defendant had keys
to the safe. The safe had "money, passports and other documents" inside , and
the money found inside the safe was not drug proceeds.
The family had three vehicles registered in her name: a Mercedes, an
Acura MDX, and an Acura RL. K., her two older daughters, and defendant
1
We use an initial to preserve the privacy of defendant's wife.
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drove all three cars. She drove the Acura MDX on the day before defendant's
arrest and did not see any drugs in the car.
Defendant raises the following issues on appeal:
POINT I: THE STATE CONSISTENTLY
ENGAGED IN PROSECUTORIAL MISCONDUCT
IN PRESENTING ITS CASE TO THE JURY.
A. THE TESTIMONY OF THE STATE'S
NARCOTICS EXPERT WAS IN VIOLATION OF
THE CAIN/SIMMS RULE THAT A STATE EXPERT
IN A DRUG CASE SHOULD NOT IMPLICITLY
EXPRESS THE OPINION THAT THE DEFENDANT
IS GUILTY (NOT RAISED BELOW).
B. THE TESTIMONY OF A DETECTIVE THAT HE
SEIZED MONEY FROM DEFENDANT'S HOME
"BECAUSE . . . I BELIEVE IT'S EVIDENCE OF
DRUG DEALING" WAS IN VIOLATION OF THE
RULE OF MCLEAN THAT A STATE'S LAY
WITNESS SHOULD NOT OFFER OPINIONS TO
THE JURY ON THE SIGNIFICANCE OF EVIDENCE
IN A DRUG CASE (NOT RAISED BELOW).
C. THE JUDGE IMPROPERLY OVERRULED
DEFENSE COUNSEL'S OBJECTION TO THE
STATE'S ARGUMENT IN SUMMATION THAT THE
DEFENSE IN THE CASE "RELIES, ALMOST
DEMANDS, THAT YOU FIND THE OFFICERS TO
BE LIARS FOR THE MERE FACT THAT THEY'RE
POLICE OFFICERS."
POINT II: THE SENTENCE IMPOSED IS
MANIFESTLY EXCESSIVE; THE SAME OFFENSE
THAT TRIGGERED THE EXTENDED TERM WAS
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DOUBLE-COUNTED AGAINST DEFENDANT IN
SETTING THE LENGTH OF THAT TERM.
I. Prosecutorial Misconduct.
A.
A reversal based on prosecutorial misconduct requires a determination
that the defendant's right to a fair trial was prejudiced by the State's improper
conduct. State v. Jackson, 211 N.J. 394, 407 (2012). "To justify reversal, the
prosecutor's conduct must have been 'clearly and unmistakably improper,' and
must have substantially prejudiced defendant's fundamental right to have a jury
fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515,
575 (1999) (quoting State v. Roach, 146 N.J. 208, 219 (1996)). "In determining
whether the prosecutor's comments were sufficiently egregious to deny
defendant a fair trial, we consider the tenor of the trial and the responsiveness
of counsel and the court to the improprieties when they occurred." Id. at 575.
"Factors to consider when analyzing prosecutorial conduct include whether
defense counsel made a timely and proper objection, whether the remark was
withdrawn promptly, and whether the court gave a limiting instruction." State
v. Chew, 150 N.J. 30, 84 (1997).
Defendant argues for the first time on appeal that Kolbeck, the State's drug
expert, improperly opined that defendant was guilty. If an error was not brought
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to the trial court's attention, a reviewing court will not reverse unless the
appellant demonstrates error "clearly capable of producing an unjust result." R.
2:10-2. "[W]hen counsel does not make a timely objection at trial, it is a sign
'that defense counsel did not believe the remarks were prejudicial' when they
were made." State v. Pressley, 232 N.J. 587, 594 (2018) (quoting State v.
Echols, 199 N.J. 344, 360 (2009)). A "[d]efendant's lack of objections . . .
weighs against [the] defendant's claim that errors were 'clear' or 'obvious.'
Indeed, '[i]t [is] fair to infer from the failure to object below that in the context
of the trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417,
471 (2002) (second and third alterations in original) (quoting State v. Macon,
57 N.J. 325, 333 (1971)).
Defendant points out Kolbeck's testimony that: (1) he "never encountered
an individual with [sixty] foil folds of cocaine for their personal use"; (2) the
residue on the scales that were found "would show, obviously, that the
individual was weighing out some kind of CDS, which would be cocaine, for --
in my opinion, it would be . . . for packaging of the CDS that was also found";
and (3) the money that was found "just basically . . . shows . . . the product that
they made, how much money that they've previously made. And, obviously,
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that money can be used to go purchase more CDS, which would then be
packaged and then sold on the street."
"[I]n drug cases, an expert witness may not opine on the defendant's state
of mind. Whether a defendant possessed a controlled dangerous substance with
the intent to distribute is an ultimate issue of fact to be decided by the jury."
State v. Cain, 224 N.J. 410, 429 (2016). In State v. Simms, 224 N.J. 393, 406-
07 (2016), our Supreme Court found the cumulative effect of expert testimony
on evidence that the jury could have evaluated based on common knowledge
combined with "expert ultimate-opinion testimony" constituted plain error.
There, the expert witness improperly bolstered the State's case by opining "the
thirteen packets of heroin found in the possession of the co-defendant sitting in
defendant's car were . . . consistent with distribution, [and] it appeared that she
had 'conspired with the male to distribute C.D.S.'" Id. at 406. "The expert's
mimicking the statutory language of conspiracy and his conclusion that
defendant conspired to distribute heroin was, in effect, a pronouncement of guilt
. . . ." Ibid.Our Supreme Court described proper expert testimony in drug cases:
Law enforcement officers with extensive training,
education, and experience of the drug world have
"specialized knowledge [that] will assist the trier of fact
to understand the evidence or to determine a fact in
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issue." Experts can help jurors understand the indicia
of a distribution operation, such as how drug traffickers
package and process drugs for distribution. Experts can
shed light on the significance of the quantities and
concentrations of drugs, the value of drugs, the use of
identifiable logos on drug packaging, and the function
of drug paraphernalia, e.g., scales, baggies, and cutting
agents.
[Cain, 224 N.J. at 426 (alteration in original) (citations
omitted) (quoting N.J.R.E. 702).]
Detective Kolbeck's testimony that he had "never encountered an
individual with [sixty] foil folds of cocaine for their personal use" was consistent
with explaining "the significance of the quantities and concentrations of drugs."
Ibid. Kolbeck's testimony that the residue on the scales indicated cocaine had
been weighed for packaging was permissible because an expert may testify
about "the function of drug paraphernalia, e.g., scales." Ibid.
Finally, Kolbeck's testimony concerning the money that was found
provided some "insight into the roles played by individuals in street-level drug
transactions." Cain, 224 N.J. at 426. On cross-examination, defense counsel
thoroughly questioned Kolbeck regarding the money seized, eliciting that he did
not know where it came from and had no personal knowledge that the money
was "drug money." Kolbeck's conclusion concerning the money, while perhaps
not entirely appropriate, was not sufficiently egregious to constitute plain error.
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See R. 2:10-2. Kolbeck's testimony does not rise to the level of "expert ultimate-
opinion testimony" that constituted plain error in Simms, 224 N.J. at 406-07.
B.
Fortunka's response when the State asked why he seized the money found
in defendant's house and car was: "Because . . . I believe it's evidence of drug
dealing." Defendant argues, without having registered an objection at trial, that
this statement prejudiced his trial. In State v. McLean, 205 N.J. 438, 443 (2011),
our Supreme Court reversed the defendant's conviction because "permitting the
officer to testify about his opinion invaded the fact-finding province of the jury
. . . ." There, an officer testified as a lay witness about the "hand-to-hand drug
transaction" that he believed took place based on his experience of witnessing
past drug transactions. Id. at 445-46. The Court concluded:
[T]he testimony of the police detective, because it was
elicited by a question that referred to the officer's
training, education and experience, in actuality called
for an impermissible expert opinion. To the extent that
it might have been offered as a lay opinion, it was
impermissible both because it was an expression of a
belief in defendant's guilt and because it presumed to
give an opinion on matters that were not beyond the
understanding of the jury. In the final analysis, the
approach taken to this testimony by the trial court and
the Appellate Division would effectively authorize an
officer both to describe the facts about what he or she
observed and to opine in ways that we have precluded
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previously. We decline to permit the lay opinion rule
to be so utilized.
[Id. at 463.]
See also State v. Reeds, 197 N.J. 280, 284-85 (2009) (finding plain error and
reversing the defendant's conviction where an officer testified in response to a
hypothetical that in his opinion defendant constructively possessed the drugs
found in the car he was driving, an ultimate issue for the jury).
The jury did not require Fortunka's testimony to draw a conclusion that
the money found in the house came from drug sales. On cross-examination,
defense counsel elicited from Fortunka that money is not unlawful on its face,
and the money could be from defendant's job. Although unfortunate, Fortunka's
response concerning the money did not constitute plain error.
C.
The trial court overruled defendant's objection to the prosecutor's
statement during summation that the defense "relies, almost demands, that you
find the officers to be liars for the mere fact that they're police officers."
Defendant argues the statement impermissibly "criticize[d] defense counsel for
doing her job."
Where error was brought to the trial court's attention, the "error is
harmless unless, in light of the record as a whole, there is a 'possibility that it
A-5599-16T4
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led to an unjust verdict' -- that is, a possibility 'sufficient to raise a reasonable
doubt' that 'the error led the jury to a result it otherwise might not have reached.'"
State v. J.L.G., 234 N.J. 265, 306 (2018) (quoting Macon, 57 N.J. at 335)
(finding error harmless "in light of the overwhelming evidence of defendant's
guilt").
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented. Indeed, prosecutors in criminal cases are expected to
make vigorous and forceful closing arguments to juries." State v. Frost, 158
N.J. 76, 82 (1999) (citation omitted). However, prosecutors may not "contend
that the police have no motive to lie or face special consequences if they do."
State v. Riviera 437 N.J. Super. 434, 446 (App. Div. 2014). In Frost, the Court
found egregious "the prosecutor's suggestion that the police officers would not
lie because of the 'magnitude' of charges that could be brought against them"
and noted: "Our courts have consistently held that such statements by a
prosecutor about a police officer's credibility are wholly inappropriate." 158
N.J. at 85.
Defense counsel's closing highlighted discrepancies between the officers'
testimony, alleged that the experts tailored their testimony to the State's theory,
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and stated that Fortunka was "full of crap." Thus, the State's characterization
that defense counsel was essentially demanding that the jurors find the officers
not credible is a permissible response to defense counsel's closing. See State v.
McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011) ("A prosecutor's otherwise
prejudicial arguments may be deemed harmless if made in response to defense
arguments."). Thus, we find no prosecutorial misconduct in the summation or
testimony, and certainly none that constitutes reversible error.
II. The Sentence.
"Appellate review of a criminal sentence is limited; a reviewing court
decides whether there is a 'clear showing of abuse of discretion.'" State v.
Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512
(1979)). Defendant argues the trial court engaged in impermissible double-
counting while imposing a mandatory extended prison term for possession of
cocaine with intent to distribute after a prior distribution-related conviction,
pursuant to N.J.S.A. 2C:43-6(f). Defendant, however, had prior drug
convictions in three different states.
Defendant was sentenced to eighteen years in prison with six years of
parole ineligibility. The sentencing court found no mitigating factors and the
following aggravating factors: defendant's risk of recidivism, N.J.S.A. 2C:44-
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1(a)(3), prior record, N.J.S.A. 2C:44-1(a)(6), and the need to deter, N.J.S.A.
2C:44-1(a)(9). Defendant argues that because his prior record was cited to
justify all three aggravating factors, and his prior record includes the same drug-
distribution offense that triggered the imposition of the extended term, the trial
court engaged in improper double-counting, especially because the charge
involved "only a little over an ounce of cocaine."
The sentencing court must "state on the record the reasons for imposing
the sentence . . . ." N.J.S.A. 2C:43-2(e); see also State v. Fuentes, 217 N.J. 57,
74 (2014) (finding that "[a] careful statement of reasons . . . facilitates appellate
review"). In determining whether a sentence is excessive, "[t]he reviewing court
is expected to assess the aggravating and mitigating factors to determine whether
they 'were based upon competent credible evidence in the record.'" State v.
Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
If the State applies for an extended term and the defendant has one prior
drug conviction of the type described, the court must impose an extended term.
N.J.S.A. 2C:43-6(f). In State v. Thomas, 188 N.J. 137, 149, 153-54 (2006), our
Supreme Court discussed aggravating factors in the context of N.J.S.A. 2C:43 -
6(f) mandatory extended-term sentencing:
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implicit in a sentencing court's assessment of the
defendant's risk of recidivism (factor (3)), the
seriousness and extent of a defendant's prior criminal
record (factor (6)), and the need to deter defendant and
others (factor (9)) is a qualitative assessment that we
want and expect the court to make. A court's findings
assessing the seriousness of a criminal record, the
predictive assessment of chances of recidivism, and the
need to deter the defendant and others from criminal
activity, do all relate to recidivism, but also involve
determinations that go beyond the simple finding of a
criminal history and include an evaluation and
judgment about the individual in light of his or her
history.
[Id. at 153 (emphasis added).]
Thus, a sentencing court may consider aggravating factors three, six and nine in
the context of a mandatory extended term because they "can be based on [an]
assessment of a defendant beyond the mere fact of a prior conviction . . . ." Id.
at 154; N.J.S.A. 2C:44-1(a)(3), (6), (9).
The sentencing court explained its reasoning regarding the aggravating
factors:
I've carefully considered the argument of counsel and
the entire court record in this matter. [I] find
[a]ggravating [f]actors [three], [six] and [nine]. I find
[a]ggravating [f]actor [three], that the defendant poses
a risk that he will commit another offense, in light of
his prior drug use and his admitted ongoing drug use,
and the multiple similar crimes that he's already been
adjudged previously, drug-related offenses.
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I find [a]ggravating [f]actor [six]. I've considered the
extent of defendant's prior criminal record, which is
extensive, and the seriousness of the offenses of which
he's been convicted. He's been convicted of a prior
second-degree eluding and a prior second-degree drug-
related offense. He's had two violations of probation
and multiple prison stints in multiple jurisdictions.
As to deterrence, [a]ggravating [f]actor [number]
[nine], the need to deter the defendant and others from
violating the law. If ever there was an obvious case
which begs for deterrence it's this one, and -- and Mr.
Gaddy has a -- you know, we refer to it as a checkered
past, but that really doesn't do justice to it. He's got an
extensive prior criminal record. There's no way to
sanitize that and it dates back to the late 1980s. I would
say that Mr. Gaddy has been afforded virtually every
sort of consideration . . . lengthy prison sentences,
modest prison sentences, parole, probation and the like.
The trial court carefully weighed the aggravating and mitigating factors
in light of defendant's particular circumstances, without double counting the one
prior drug conviction needed for an extended term. Defendant had more
convictions than were necessary for a mandatory extended term, and the court
did not err in considering defendant's extensive prior criminal record.
Affirmed.
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