WAYNE MCCAW VS. VERNON TOWNSHIP BOARD OF EDUCATIONÂ (L-0113-13, SUSSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0857-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME WILLIAMS, a/k/a
JEROME K. WILLIAMS,
Defendant-Appellant.
__________________________________
Submitted March 29, 2017 – Decided April 21, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-06-0687.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant was charged in a two-count indictment with third-
degree possession with intent to distribute cocaine, N.J.S.A.
2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (Count 1), and third-degree
possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count 2). The jury
found defendant guilty of possession of cocaine and not guilty of
possession with intent to distribute cocaine. Defendant filed a
post-trial motion for acquittal or a new trial. The motion was
denied, and defendant was sentenced to five years imprisonment.
Defendant argues on appeal:
POINT I
THE DEFENDANT IS ENTITLED TO A NEW TRIAL
BECAUSE THE TRIAL COURT'S INSTRUCTION THAT THE
CO-DEFENDANT'S STATEMENT (EXONERATING HERSELF
AND IMPLICATING THE DEFENDANT) IS SUFFICIENT
ALONE TO PROVE THE STATE'S CASE BEYOND A
REASONABLE DOUBT WAS ERRONEOUS AND
PREJUDICIAL. (Not Raised Below)
POINT II
THE DFEENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT III
THE SENTENCE IS EXCESSIVE.
We reject these arguments and affirm.
On March 22, 2014, East Brunswick Police Officer Jason Fama,
while on patrol, observed a vehicle with a male driver and female
passenger. Fama ran a computer search of the vehicle and learned
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that the registered owner, Theresa Foxx, had a suspended driver's
license and was the subject of an active warrant for $250 in unpaid
parking tickets. As part of the computer search results, a
photograph was displayed on Fama's screen which revealed that Foxx
was the passenger in the car.
Fama effected an uneventful stop of the motor vehicle.
Defendant, Jerome Williams, was the driver. As Fama approached
the vehicle, he noted that the two occupants were speaking to each
other. He requested the production of defendant's driver's license
and the vehicle registration. Foxx handed documents pertaining
to the vehicle to defendant, who handed them over to Fama.
Defendant said he did not have a valid driver's license. However,
he indicated that he did have a New Jersey identification card,
which Foxx handed to him and which he gave to Fama. Dispatch then
confirmed to Fama that defendant's driver's license was suspended.
Because Foxx was going to be arrested, Fama requested back-up, and
another officer soon arrived at the scene.
Fama advised Foxx that she was being placed under arrest and
searched her incident to arrest. While doing so, he asked her if
she had anything on her person that she shouldn't have. She
responded there was something in her jacket pocket, but that
defendant had placed it there. When asked what it was, Foxx
responded somewhat ambiguously. She first described it as "yay,"
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a street name for cocaine, and then said she knew it was something
she was not supposed to have but did not know exactly what it was.
Fama seized from the right pocket of the jacket Foxx was wearing
a plastic baggie containing forty-four individual baggies of what
was later confirmed to be crack cocaine. Both individuals were
arrested. Defendant had on his person $440 in cash, consisting
of thirty-two ten dollar bills and six twenty dollar bills. Foxx
was cooperative and provided a recorded statement to the police,
in which she reiterated that defendant placed the drugs in her
pocket.
Both individuals were charged with possession of cocaine and
possession with intent to distribute cocaine. Both were subjects
of the indictment referred to above. During the pendency of the
case, Foxx was admitted to the pretrial intervention (PTI) program.
She agreed to testify truthfully against defendant as a condition
of PTI.
Foxx and defendant had lived together in a romantic
relationship for seven years. They had a child together about six
months before this criminal episode. At the time of the trial in
July 2015, their relationship was still ongoing and they were
still living together.
At trial, Fama testified and described the events that
occurred at the time of the motor vehicle stop and arrest. Foxx
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testified and gave the following account of the circumstances
leading up to the stop and arrest. She was employed at that time
at a retail store. Defendant drove her to work and dropped her
off at about noon. Before going into the store, Foxx removed her
jacket and left it on the back seat of the car. This was her
regular practice because the store contained no secure lockers in
which employees could hang their coats or leave other large
personal items. When she left her jacket in the car, there was
nothing in the pockets.
Defendant picked her up at work at about 5:30 p.m. She put
her jacket on and rode in the front passenger seat. They made two
uneventful stops before they were pulled over by Fama. When they
were pulled over, defendant said to Foxx, "Something must be going
on." When Foxx inquired, "What?" defendant said, "Well, he -- he
got another cop," referring to the back-up officer who had arrived.
Defendant then said to Foxx, "I put something in your jacket."
Foxx replied, "What do you want me to do? There's nothing I can
do. There's a cop watching me." Foxx was asked at trial what she
told Fama when he asked her if there was anything in her pockets
that shouldn't be there. She said she responded, "Yeah." When
Fama asked what it was, she said she told him it was "dope," and
when he asked what kind of dope, she said "crack." When Fama
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asked her how the drugs got there, she said, "Jerome put them
there."
Foxx continued her testimony by telling the jury about her
PTI admission. She explained that she agreed to cooperate because
"[she] had to clear [her] name" and that she was able to resolve
the charges against her through PTI. She provided truthful
information to the police and prosecutor and agreed to testify
truthfully at trial.
The State also produced a police witness who qualified as an
expert in drug distribution activities. He opined that facts and
circumstances such as existed in this case would be indicative of
intent to distribute the drugs. As we have stated, the jury found
defendant not guilty of that charge. Defendant did not testify
and called no witnesses.
At the charge conference, defense counsel requested that the
court instruct the jury in accordance with the model charge
pertaining to the testimony of a cooperating co-defendant or
witness. See Model Jury Charge (Criminal), "Testimony of a
Cooperating Co-Defendant or Witness" (2006). The judge gave the
charge as part of his final jury instructions. He followed the
model charge, tailored to the evidence in the case. Specifically,
he charged as follows:
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Theresa Foxx, who was indicted for the crimes
the defendant is on trial for, has testified
on behalf of the State. Theresa Foxx, who was
indicted for the crimes that the defendant is
on trial for, has been admitted into Pre-Trial
Intervention, PTI, on those charges, namely
possession of controlled dangerous substance
with intent to distribute and possession of a
controlled dangerous substance, and has
testified on behalf of the State.
Evidence of Theresa Foxx's admission into PTI
may be used only in determining the
credibility or believability of that witness's
testimony. You may consider such evidence,
along with all the other factors that I
mentioned previously in determining the
credibility of a witness. However, you may
not use Theresa Foxx's admission into PTI as
evidence that this defendant is guilty of the
crimes that he is charged with.
The law requires that the testimony of such a
witness be given careful scrutiny. In
weighing her testimony, therefore, you may
consider whether she has a special interest
in the outcome of the case and whether her
testimony was influenced by the hope or
expectation of any favorable treatment or
reward or by any feelings of revenge or
reprisal. If you believe this witness to be
credible and worthy of belief, you have a
right to convict the defendant on her
testimony alone, provided, of course, that
upon a consideration of the whole case, you
are satisfied beyond a reasonable doubt of the
defendant's guilt.
The judge also gave the model charge, tailored to the evidence
in the case, dealing with statements of a defendant, with respect
to the statement Foxx said defendant made to her in the car that
he had put something in her pocket. See Model Jury Charge
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(Criminal), "Statements of Defendant" (2010). The judge rejected
defense counsel's request to charge "mere presence."
Subsequent to trial, defendant moved for a judgment of
acquittal or, alternatively, a new trial. In denying the motion,
the judge was satisfied there was no error in the jury instructions
given. Nor was it error to refuse to charge mere presence in the
factual circumstances of this case. The judge reasoned that
possession of the drugs was not attributed to defendant because
he was present in a vehicle where the drugs were found to be
hidden. Instead, possession was attributed to him based upon the
testimony that he in fact placed the drugs surreptitiously in
Foxx's jacket pocket. The key issue for the jury to decide was
Foxx's credibility. The judge noted that defense counsel
"vigorously" and "effectively" cross-examined Foxx, pointing out
inconsistencies in her statements and her motivation to inculpate
defendant in order to exonerate herself and be admitted into PTI.
The judge also noted that extensive portions of the opening and
closing statements of both counsel dealt with Foxx's credibility.
The judge concluded that the jury, in conducting its fact-
finding function, was in a position to assess Foxx's credibility.
In doing so, the jurors obviously believed her version of the
events — namely, that defendant surreptitiously placed the drugs
in her jacket pocket and this was unbeknownst to her until the
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time of the stop. The judge therefore concluded that the verdict
was supported by sufficient credible evidence in the record and
did not constitute a miscarriage of justice under the law and
denied the motion.
In his first point of argument, defendant contends that the
trial court erred by giving the instruction on the testimony of a
cooperating co-defendant or witness. This charge was first
developed in accordance with the holding in State v. Begyn, 34
N.J. 35, 54-56 (1961). Since then, our Supreme Court has on
various occasions reiterated the continuing efficacy of the charge
and the principles it expresses. Most recently, the Court did so
in State v. Adams, 194 N.J. 186, 206-09 (2008).
Defendant does not argue that the judge did not correctly
follow the model charge. He argues that the model charge needs
an "overhaul" because it instructs the jury that a defendant can
be convicted on the testimony of a cooperating co-defendant or
witness alone. According to defendant, such testimony contains
inherent contradictions and is, by its nature, very unreliable.
Defendant's argument is patently without merit. First of
all, we note that this charge generally should not be given unless
specifically requested by the defendant. Begyn, supra, 34 N.J.
at 54-56. In this case, defendant did request the charge.
Further, to preserve a question for review relating to jury
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instructions, a defendant must advise the trial court of the
specific charge sought and the grounds therefor. R. 1:7-2; R.
1:8-7(b). That was not done in this case. We are therefore asked
to review and reverse a trial court based on an asserted error
that was invited, where the issue under review was not properly
preserved for appeal.
On the merits, the model charge is a correct statement of the
law. It does not simply tell jurors that they can convict based
on the cooperating witness' statement alone. Jurors are instructed
that they should consider that testimony together with all other
factors upon which the court has instructed them regarding
assessment of the credibility of a witness. Jurors are told that
the law requires that the testimony of a cooperating witness be
given careful scrutiny, that they should consider whether the
witness has a special interest in the outcome of the case and
whether that testimony is influenced by the hope or expectation
of favorable treatment or by any feelings of revenge or reprisal.
Finally, jurors are told that if they find that testimony credible
and worthy of belief, they can convict on that testimony alone,
"provided, of course, that upon a consideration of the whole case,
[the jury is] satisfied beyond a reasonable doubt of the
defendant's guilt."
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Because there was no objection to the charge at trial, we are
guided by the plain error standard, under which is it must be
shown that an error was "clearly capable of producing an unjust
result." R. 2:10-2. Not any possibility of an unjust result will
suffice, but, in the context of a jury trial, the possibility 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). In the context of a jury
charge, plain error is
legal impropriety in the charge prejudicially
affecting the substantial rights of the
defendant and sufficiently grievous to justify
notice by the reviewing court and to convince
the court that of itself the error possessed
a clear capacity to bring about an unjust
result.
[State v. Hock, 54 N.J. 526, 538 (1969), cert.
denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L.
Ed. 2d 797 (1970).]
There was no error here, let alone plain error. Jurors, in
the performance of their essential fact finding function, analyze
the credibility of witnesses. They are instructed on the general
principles that should guide their assessment. With respect to
particular types of evidence, proper instructions provide specific
guidance as to how that kind of evidence should be evaluated. That
was done here in the clearest terms. It is presumed that jurors
follow the instructions they are given, State v. Nelson, 155 N.J.
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487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142
L. Ed. 2d 788 (1999), and we have no reason to suspect otherwise
in this case.
In Point II, defendant argues that the court erred in denying
his motion for acquittal or a new trial. We do not agree. The
question a trial court must answer when evaluating a judgment of
acquittal is
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as well
as all of the favorable inferences which
reasonably could be drawn therefrom, a
reasonable jury could find guilt of the charge
beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
If that question is answered in the affirmative, the court is
bound to deny the motion. State v. Franklin, 52 N.J. 386, 406
(1968). It is clear to us, as it was to the trial judge, that
viewing the evidence most favorably to the State, there was no
basis to interfere with the jury's finding of guilt beyond a
reasonable doubt.
Finally, in Point III, defendant argues that his sentence is
excessive. Defendant was eligible for extended term sentencing
as a persistent offender. See N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-
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3(a). The State moved for such sentencing and the judge denied
the motion.
The judge found the applicability of aggravating factors (3)
the risk that defendant would commit another offense, (6) the
extent of the defendant's prior criminal record and the seriousness
of the offenses of which he has been convicted, and (9) the need
for deterring the defendant and others from violating the law.
See N.J.S.A. 2C:44-1a(3), (6), and (9). The judge found no
mitigating factors to apply. The judge's findings regarding
aggravating and mitigating factors were based on competent and
credible evidence in the record, the trial court correctly applied
the sentencing guidelines in the Code of Criminal Justice, and the
sentence imposed was not excessive or unduly punitive. State v.
O'Donnell, 117 N.J. 210 (1989); State v. Gertler, 114 N.J. 383
(1989); State v. Roth, 95 N.J. 334 (1984).
Affirmed.
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