STATE OF NEW JERSEY VS. ANTHONY SMITH (14-04-0943, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5571-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY SMITH,
Defendant-Appellant.
_______________________________
Submitted September 11, 2017 - Decided September 28, 2017
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
14-04-0943.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on
the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Camila
Garces, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
PER CURIAM
A jury convicted defendant Anthony Smith of two counts of
third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10a(1); one count of third-degree possession with
intent to distribute, N.J.S.A. 2C:35-5a(1); one count of third-
degree possession with intent to distribute within 1000 feet of
school property, N.J.S.A. 2C:35-7a; two counts of second-degree
possession of a firearm in the course of committing a drug
offense within 1000 feet of school property, N.J.S.A. 2C:39-
4.1(a); and the lesser-included disorderly persons offense of
resisting arrest, N.J.S.A. 2C:29-2a(1). The jury acquitted him
of another distribution count, a 1000 foot offense, maintaining
a fortified structure to distribute drugs and third-degree
resisting arrest.
Defendant raises two issues on appeal:
POINT I
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY
FOLLOWING ITS ANNOUNCEMENT THAT IT WAS
DEADLOCKED WERE INAPPROPRIATE AND COERCIVE,
AND REQUIRE A REMAND FOR A NEW TRIAL.
POINT II
THE TRIAL COURT ERRONEOUSLY PERMITTED THE
STATE TO CALL A NARCOTICS EXPERT TO TESTIFY
AS TO STREET-LEVEL NARCOTICS DISTRIBUTION
WHEN THE DISPUTED FACTS OF THE CASE WERE
STRAIGHTFORWARD AND EXPERT TESTIMONY WAS NOT
REQUIRED.
We are not persuaded by either argument.
This was a short trial. Although the court had advised the
jury in voir dire that trial testimony would consume six days,
the case was tried in two days. The facts were simple.
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Defendant was arrested by officers who had been surveilling his
apartment in order to execute a search warrant. When defendant
emerged to speak to two people who had arrived in a black truck,
the officers moved in. Defendant tried to run back inside,
dropping a bundle of heroin in his haste. The officers managed
to arrest defendant after a struggle in his foyer, during which
both were bitten by defendant's pitbull. Police found over
$1800 in defendant's pockets. More drugs, currency and two
loaded revolvers were recovered from defendant's apartment.
The State presented the testimony of the two officers who
arrested defendant, a ballistics expert, defendant's landlord
and Michael Bettin, an investigative aide from the prosecutor's
office who testified as an expert on street-level drug
distribution. Bettin explained hand-to-hand transactions,
stashes and stash locations, including fortified stashes, heroin
packaging, how heroin is consumed and the practice of "re-
upping," the purchase of a large quantity of stamped and pre-
packaged heroin from a supplier for resale.
The defense conceded defendant was a heroin addict and that
he also used Xanax, which he crushed and mixed with heroin.
Defendant claims that because the officers did not testify to
seeing or interrupting a hand-to-hand transaction, or that
defendant accessed a stash or even that he appeared to be
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exchanging a large sum of money for heroin from a supplier,
Bettin's testimony was unnecessary and highly prejudicial.
Specifically, defendant claims that without Bettin's testimony,
the State's witnesses did not "strongly support[]" the State's
theories that defendant was either selling drugs to the
occupants of the black truck or using the more than $1800 he was
carrying to "re-up" his stash.
It is well established that expert testimony on the use and
distribution of unlawful drugs is permissible to assist jurors
in understanding subjects within the specialized knowledge of
the expert and beyond the ken of an average layperson. State v.
Odom, 116 N.J. 65, 80-81 (1989). Our Supreme Court has
instructed that trial judges are gatekeepers here, insuring that
only expert testimony of value in assisting a "jury's
understanding of facts and their significance" and "not unduly
prejudicial" is admitted. State v. Nesbitt, 185 N.J. 504, 515
(2006).
Having reviewed the trial transcripts, we are satisfied
Judge Peter V. Ryan conscientiously discharged his gatekeeping
role. The judge raised with counsel whether an expert should be
permitted to testify given the evidence. He conducted an
extended discussion on the record, during which he carefully
reviewed the facts and reasoning of the controlling cases.
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After hearing the arguments of counsel, the judge permitted
limited expert testimony and prohibited the use of hypothetical
questions.
The State hewed to the judge's direction to "make sure" the
expert was "specific" and refrained from posing hypotheticals.
The expert defined terms and explained characteristics of the
drug trade that in his experience distinguished it from the
purchase of drugs for personal use. As circumscribed, the
evidence was relevant, probative and certainly could have
assisted the jury in determining whether defendant possessed
heroin and Xanax in a fortified structure with the intent to
distribute it, or was simply a husband and father with a drug
problem and a pet pitbull. We do not find its probative value
was substantially outweighed by the risk of undue prejudice.
See State v. Cain, 224 N.J. 410, 421 (2016) (reviewing the
Court's pronouncements on the appropriate use of expert
testimony in drug cases and limiting hypotheticals to prohibit
encroachment on the jury's role as the trier of fact).
We turn to defendant's issue with the jury instructions.
At 3:30 p.m., after having deliberated for two hours and fifty
minutes, the jury submitted a note to the judge, which stated
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"We cannot move ahead. Can't come to a decision." Instead of
delivering a Czachor1 charge, the judge told the jury:
Ladies and Gentlemen, this wasn't a
long case and it wasn't a complicated case
either. The facts are the facts.
Everybody has a responsibility here. I
have the responsibility to make sure the law
is given to you appropriately and . . .
decide questions on the law.
[The prosecutors have] a duty to
prosecute a case; [defense counsel] has a
responsibility to defend the case. You have
the responsibility of . . . resolving this
case.
You've been out a total of three hours.
Woefully insufficient. I'm going to give
you all the time in the world, and tomorrow
is another day. We're going to bring you
back in tomorrow to deliberate also. All
right?
I can't let you go home until we get
this case resolved one way or another.
Again, I appreciate your patience and
your cooperation . . . let's just see what
happens, all right? You're tired, let's
continue to deliberate and then we'll leave
you go at 4:00, and bring you back tomorrow.
Out of earshot of the jury, defense counsel immediately
objected to the court's failure to deliver a Czachor charge and
to the judge's remark that the case had to be "resolved one way
or another." The judge responded that it was "too early" to
1
State v. Czachor, 82 N.J. 392, 405 n.4 (1980).
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give a Czachor charge and that it was the jury's responsibility
to decide the case. The judge apologized to counsel if he had
communicated that "inartfully." At 4:00 p.m., the judge
released the jury saying:
Again, I, I want to impart to you this.
It is a very, very short time you have been
deliberating. We're going to give you all
the time in the world to decide this case.
All right?
So don't think about this case tonight
at all. Come back tomorrow fresh . . . .
After deliberating for two hours the following day, the jury
returned its verdict convicting defendant on six counts of the
indictment, acquitting him of three others, including
maintaining a fortified structure, and finding him guilty of the
lesser included disorderly persons offense of resisting arrest.
We agree with defendant that the court was correct to
direct the jury to continue its deliberations, see State v.
Figueroa, 190 N.J. 219, 235 (2007), but its comment about not
letting the jury go home until the case was resolved was
improper and should not have been made. We do not, however,
agree the remark, in context, was "coercive," or deprived
defendant of a fair trial.
As we have noted, this was a very short trial. At the time
the court made the remark to which defendant objects, it had
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only the day before delivered, in the words of the model charge,
the instruction to the jury on further deliberations to be given
in the event of deadlock, the Czachor charge. See Model Jury
Charges (Criminal), "Judge's Instructions on Further Jury
Deliberations" (2013). Although the remark was no doubt
inartful, as the court conceded, it was obviously not intended
to be taken literally and cannot be considered prejudicial error
in light of the court's otherwise careful and correct
instructions to the jury. Judged in context, it presents none
of the concerns that impelled us to reverse the verdict in State
v. Adim, 410 N.J. Super. 410, 430 (App. Div. 2009) (concluding
combined impact of coercive and intrusive components of trial
court's supplemental instruction required reversal of verdict).
In his brief, defendant notes the judgment of conviction
erroneously states he was convicted of third-degree resisting
arrest instead of the lesser-included disorderly persons
offense, N.J.S.A. 2C:29-2a(1). We further note the judgment
also appears to erroneously state the total custodial term to be
five years instead of the ten years imposed. Accordingly, a
limited remand for correction of the judgment is required. See
State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991)
(noting in the event of a discrepancy between the court's oral
pronouncement of sentence and the sentence described in the
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judgment of conviction, the sentencing transcript controls and a
corrective judgment is to be entered).
Defendant's conviction is affirmed. The matter is remanded
for correction of the judgment of conviction. We do not retain
jurisdiction.
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