STATE OF NEW JERSEY VS. ANTOINE L. HENDERSON (13-09-2328 AND 14-11-2861, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2863-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTOINE L. HENDERSON,
Defendant-Appellant.
______________________________
Submitted April 9, 2018 – Decided January 24, 2019
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment Nos. 13-09-2328
and 14-11-2861.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa A. Aiello, Assistant Deputy Public
Defender, of counsel on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).
This opinion of the court was delivered by
O'CONNOR, J.A.D.
Defendant Antoine L. Henderson appeals from a judgment of conviction
entered following a jury trial, as well as from his pretrial motion to suppress
evidence. In light of the record and applicable legal standards, we affirm.
A jury convicted defendant of second-degree distribution of heroin
within 500 feet of a public park or building, N.J.S.A. 2C:35-7.1(a); second-
degree possession of heroin within 500 feet of a public park or building,
N.J.S.A. 2C:35-7.1(a); third-degree possession of heroin, N.J.S.A. 2C:35-
10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of
heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). After the
appropriate mergers, defendant was sentenced to a twelve-year term of
imprisonment, with a six-year period of parole ineligibility.
Defendant raises the following issues on appeal:
POINT I - THE COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE.
A. THE LEGALITY OF THE INITIAL
DETENTION.
B. ACCETTURO'S ACT OF RESISTING
SHEPHERD'S EFFORTS TO HANDCUFF
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HIM DID NOT PURGE THE TAINT OF THE
ILLEGAL STOP.
POINT II - REVERSAL IS REQUIRED BECAUSE
THE TRIAL COURT ERRONEOUSLY DENIED
HENDERSON'S MOTION FOR MISTRIAL MADE
WHEN SCANDIFFIO TOLD THE JURY THAT
HENDERSON IS "A KNOWN DRUG DEALER." IN
THE ALTERNATIVE, REVERSAL IS REQUIRED
BECAUSE THE COMBINED PREJUDICE
RESULTING FROM SCANDIFFIO'S HIGHLY
DAMAGING REMARK AND FROM TESTIMONY,
IMPERMISSIBLY ELICITED BY THE
PROSECUTOR, THAT ACCETTURO HAD
PURCHASED DRUGS FROM HENDERSON IN
THE PAST AND THAT THE AREA WHERE THE
DRUG SALE ALLEGEDLY OCCURRED HAS
BEEN THE SITE OF NUMEROUS DRUG-
RELATED ARRESTS IN THE PAST, DEPRIVED
HENDERSON OF HIS RIGHT TO DUE PROCESS
AND A FAIR TRIAL. (NOT RAISED BELOW).
A. THE PRIOR CRIMES EVIDENCE
INTRODUCED FIRST THROUGH
ACCETTURO AND THEN THROUGH
SCANDIFFIO VIOLATED N.J.R.E. 404(b).
B. TESTIMONY THAT THE AREA IN
WHICH HENDERSON WAS ARRESTED HAS
BEEN THE SITE OF NUMEROUS
DRUG ARRESTS IN THE PAST WAS
IRRELEVANT AND PREJUDICIAL.
C. THE TRIAL COURT ERRED BY FAILING
TO GRANT HENDERSON'S MOTION FOR
MISTRIAL MADE AFTER SCANDIFFIO
TOLD THE JURY THAT HENDERSON WAS
"A KNOWN DRUG DEALER." IN THE
ALTERNATIVE, REVERSAL IS REQUIRED
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BECAUSE THE COMBINED PREJUDICE
RESULTING FROM SCANDIFFIO'S HIGHLY
DAMAGING REMARK AND THE OTHER
IMPROPERLY ADMITTED 404(b)
EVIDENCE WAS CLEARLY CAPABLE OF
LEADING THE JURY TO AN UNJUST
RESULT.
POINT III - HENDERSON WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE THERE WAS NO REASONABLE
STRATEGIC BASIS FOR DEFENSE COUNSEL'S
FAILURE TO (A) INTRODUCE EVIDENCE THAT
THE TWO KEY WITNESSES FOR THE STATE
HAD AGREED TO TESTIFY AGAINST
HENDERSON IN EXCHANGE FOR NON-
CUSTODIAL DISPOSITIONS OF THE OFFENSES
WITH WHICH THEY WERE CHARGED IN
CONNECTION WITH THIS CASE, AND (B) ASK
FOR A COOPERATING WITNESS CHARGE,
INSTRUCTING THE JURY THAT IT WAS
REQUIRED TO GIVE CAREFUL SCRUTINY TO
THE TESTIMONY OF THOSE WITNESSES BASED
ON THEIR COOPERATION AGREEMENTS. (NOT
RAISED BELOW).
I
A
We first address the denial of defendant's motion to suppress. The
relevant testimony elicited during the suppression hearing was as follows.
Detective Shepherd of the Brick Township Police Department testified that
during the late afternoon of April 29, 2013, he and two other detectives were
conducting undercover surveillance. The three detectives sat in an unmarked
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car in a Wawa parking lot and were looking for evidence of narcotics
transactions.
At that time, Shepherd had been assigned to the Drug Enforcement Unit
of the police department for thirteen years. He stated drug trafficking often
occurred in the Wawa parking lot, which is in a part of the township he
characterized as a "high drug area." He testified he had been involved in or
"had knowledge of" at least one hundred drug-related arrests in this area over
thirteen years.
Approximately ten minutes after the detectives arrived in the lot, a
BMW pulled in and parked. The two occupants of the BMW did not exit the
car. The BMW then drove across the street, entered and exited a Dunkin'
Donuts parking lot, pulled into an adjacent gas station, and stopped behind a
Lincoln parked at a gasoline pump. There were two occupants in the Lincoln,
a driver and a front seat passenger.
The detectives drove to the gas station and parked between the BMW
and a convenience store located on the premises. Shepherd observed the driver
of the BMW, later identified as Anthony Accetturo, get out of the BMW and
enter the back seat of the Lincoln. Before he got into the Lincoln, Accetturo
did not purchase any gasoline. Twenty to thirty seconds after entering the
Lincoln, Accetturo emerged and returned to the BMW. Although Shepherd
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claimed he could see into the Lincoln, he conceded he did not see any objects
exchanged among any of the three occupants while Accetturo was in that
vehicle.
Shepherd suspected a drug transaction had "possibly" occurred, because
neither occupant of the BMW had entered the Wawa after sitting in its parking
lot for ten minutes, they drove to and parked behind the Lincoln, and, after
entering the Lincoln, Accetturo exited after only twenty to thirty seconds. The
three detectives decided Shepherd and one of the other detectives, Lash, would
question Accetturo, while the third detective, Joseph Forrester, would question
the two occupants of the Lincoln.
Shepherd and Lash approached Accetturo, who was seated in the driver's
seat of the BMW. Shepherd identified himself as a police officer and told
Accetturo he wanted to ask him about "who he met with and what was going
on." There is no evidence of what Shepherd specifically asked Accetturo but,
in response to Shepherd's inquires, Accetturo told Shepherd one of the
occupants in the Lincoln was an old friend to whom Accetturo owed twenty-
five dollars. Accetturo stated he and his friend arranged to meet so Accetturo
could pay his debt.
Shepherd advised Accetturo he was going to compare what Accetturo
reported to him to what the occupants of the Lincoln were telling Detective
A-2863-15T3
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Forrester. Accetturo then stated that he did not in fact give his friend any
money, merely that he met with his friend. Accetturo explained he stated he
met with his friend to pay a debt, because he felt pressured to give the police a
reason for meeting with his friend.
Shepherd and Forrester then conferred and compared what each had
learned. Among other things, Forrester informed Shepherd the passenger in
the front seat of the Lincoln, who was later identified as defendant, had a
couple of hundred dollars in his hand, and that a small quantity of marijuana
was on top of the center console of the Lincoln. Forrester expressed
skepticism defendant and Accetturo were old friends, because Forrester had
ascertained defendant was in his forties and Accetturo in his twenties.
The three detectives walked over to the BMW and directed Accetturo to
step out of the car. After he did so, Shepherd observed a rectangular object,
smaller than a pack of cigarettes, in the waistband of Accetturo's pants. Based
upon his experience, Shepherd suspected the object was a brick of heroin.
Adding to his suspicion was the fact that, at that time, the street value of a
brick of heroin in the township was between $200 and $250, and defendant had
$230 in his possession. Shepherd asked Accetturo what was in his pants and
he sarcastically replied it was his penis.
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Shepherd informed Accetturo he was placing him under arrest because
he believed Accetturo was in possession of heroin. As Shepherd started to
place him in custody, Accetturo turned, twisted, and pushed his body against
Shepherd's. During the struggle, both Shepherd and Accetturo fell to the
ground and the other occupant of the BMW, Lauren Scandiffio, jumped on
Shepherd's back. Another police officer who had arrived at the scene pulled
her off, and Shepherd was able to gain control over and handcuff Accetturo.
When the police searched Accetturo, he continued to wrestle with
Shepherd and, as he was escorted to a police car, a brick of heroin fell out of
his pant leg. Defendant, Accetturo, and Scandiffio were transported to the
police station. At the station, Accetturo and Scandiffio gave statements
admitting Accetturo had contacted defendant in order to purchase narcotics
from him.
Detective Sergeant Forrester also testified. His testimony was consistent
with Shepherd's, but Forrester added that, at that time, he had been overseeing
the Drug Enforcement Unit for three years. In his ten years with the police
department, he had made approximately fifty drug-related arrests in the area of
the Wawa. He also added that when the BMW pulled into the Wawa parking
lot, both occupants were on their cell phones and "looking around."
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The State called Accetturo, who testified he contacted defendant to
purchase Oxycodone from him, and arranged to meet defendant in the Wawa
parking lot. After he and Scandiffio drove to the lot, Accetturo got a call to
meet defendant in the gas station across the street. Accetturo drove to the gas
station, and parked behind and got into the back seat of a car in which
defendant was a passenger. Accetturo gave defendant approximately $250 in
exchange for a brick of heroin, which Accetturo then put into his pants.
Accetturo testified that at some point after he returned to his car, the
police told him to get out of his car. He complied, but when an officer
attempted to handcuff him, Accetturo "pushed back at" the officer, although
the officer eventually restrained him. The officer then tried to search him, but
he continued to push back against the officer. During the search, the brick of
heroin fell out of Accetturo's pants.
At the suppression hearing, defendant argued the police wrongfully
detained Accetturo as soon as they parked next to his BMW at the gas station.
Defendant further asserted the search of Accetturo's person could not be
justified on the ground it was incident to his arrest, because his initial
detention was unlawful.
The court rejected defendant's contentions and denied the motion to
suppress the heroin, finding the first time Accetturo was detained by the police
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was when he was ordered to step out of the BMW. The court determined that,
at that point in time, the police had reasonable and articulable suspicion
Accetturo had engaged in criminal activity, which permitted the police to
conduct an investigatory stop. The court also found that even if his arrest were
unlawful, Accetturo's resistance to arrest served to sufficiently attenuate the
seized heroin from any taint of unconstitutionality.
B
On appeal, defendant abandons his contention Accetturo was unlawfully
detained when the detectives parked next to the BMW at the gas station. He
now contends Accetturo was unlawfully detained when Shepherd first
questioned him. Defendant asserts that, until Forrester told Shepherd of what
he had learned from questioning the occupants of the Lincoln, Shepherd did
not have reasonable and articulable suspicion Accetturo had engaged or was
about to engage in criminal activity. Because the investigatory stop was
unlawful, defendant reasons the fruits of such police activity must be
suppressed. Finally, defendant contends Accetturo's resistance to his arrest
failed to purge the taint of his unlawful detention.
An investigatory stop is valid only "if it is based on specific and
articulable facts which, taken together with rational inferences from those
facts, give rise to a reasonable suspicion of criminal activity." State v.
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Williams, 192 N.J. 1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20
(2004)). A determination of whether a police officer has reasonable suspicion
justifying an investigatory stop is fact sensitive. The totality of the
circumstances facing a police officer at the time of the encounter must be
considered in evaluating whether an officer had a reasonable suspicion to
conduct a brief investigatory stop. Pineiro, 181 N.J. at 22.
An officer's experience and knowledge are factors courts consider in
applying the totality of the circumstances test. Ibid. Notably, "[t]he fact that
purely innocent connotations can be ascribed to a person's actions does not
mean that an officer cannot base a finding of reasonable suspicion on those
actions as long as 'a reasonable person would find the actions are consistent
with guilt.'" Pineiro, 181 N.J. at 25 (quoting State v. Citarella, 154 N.J. 272,
279-80 (1998)). However, a seizure cannot be justified solely on the basis of a
police officer's hunch. See State v. Elders, 192 N.J. 224, 247 (2007) (citing
Pineiro, 181 N.J. at 27).
Further, and significantly, merely being present in an area known for
high narcotics trafficking activity does not alone support a finding of
reasonable suspicion. State v. Williams, 381 N.J. Super. 572, 583-584 (App.
Div. 2005), rev'd on other grounds, 192 N.J. 1 (2007); State in the Interest of
D.S., 125 N.J. Super. 278, 286, (App. Div.) (Botter, J.A.D., dissenting), rev'd,
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63 N.J. 541 (1973). "[S]ome minimal level of objective justification" must
exist to detain a citizen. United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting INS v. Delgado, 466 U.S. 210, 217 (1984)); State v. Arthur, 149 N.J.
1, 8 (1997).
For example, in D.S., defendant and two others were standing on a street
corner one evening outside a tavern in an area known for narcotics traffic. 125
N.J. Super. at 280-81. Two police officers decided to investigate, even though
they had not seen anything pass among the three and none was known to the
officers as users or sellers of narcotics. Ibid. After patting down all three,
defendant was found in possession of heroin. Id. at 281. The Court adopted
Judge Botter's dissent, in which he concluded neither the investigatory stop nor
the pat-down search was authorized, even though that area was known for
narcotics traffic, making the heroin inadmissible. In re State in Interest of
D.S., 63 N.J. 541, 542 (1973).
Similarly, in State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), the
only basis articulated by the police officer for the investigatory stop of the
defendant's vehicle was the race of three persons in and around the vehicle and
that they were in a "high crime" area. Id. at 280-81. The officer did not
observe any narcotics or money changing hands. Id. at 280. We held no
A-2863-15T3
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rational inference of criminal activity could be drawn under the circumstances.
Id. at 282.
The State cites only one authority, Arthur, 149 N.J. 1, in support of its
premise that the totality of the circumstances provided Shepherd an objectively
reasonable, articulable suspicion to question Accetturo. In Arthur, a police
officer engaging in undercover surveillance in an area known for narcotics
activity saw a woman enter the defendant's parked car and exit five minutes
later carrying a paper bag. Id. at 3. The officer was aware that, at the time,
paper bags were commonly used to transport drugs. Id. at 5. She did not have
the paper bag when she entered the car and, when she emerged, exhibited
furtive movements by looking around her and trying to conceal the bag under
her arm. Id. at 4.
Suspecting the woman had purchased drugs from the defendant, the
officer subjected her to an investigatory stop. Id. at 5. After looking into the
paper bag and finding narcotics paraphernalia, the police stopped the
defendant, who volunteered he had drugs in his possession. Ibid. The police
searched him and found cocaine. Id. at 5-6. The Court determined the police
officer had sufficient grounds to subject the woman to the investigatory stop.
Id. at 15.
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Here, Shepherd did not have reasonable, articulable suspicion when he
initially questioned Accetturo. Even if the area were one where drug
trafficking was common, there was little evidence Accetturo was engaging or
about to engage in criminal activity. At best, there was evidence Accetturo
had arranged to and did meet with the person seated in the Lincoln at a gas
station, who was in fact purchasing gas, and the two met for twenty to thirty
seconds. There was no other evidence Accetturo had engaged in any illegal
activity.
Unlike in Arthur, the detectives did not see Accetturo exit defendant's
car carrying any object he did not have when he entered the Lincoln. In fact,
despite being able to see inside of the Lincoln, Shepherd admitted he did not
observe the exchange of any objects among those in the Lincoln. Accetturo
did not exhibit any furtive or other conduct indicting he had drugs in his
possession when he emerged from the Lincoln.
In addition, there was no evidence of other factors that have been found
to support an investigatory stop in other matters, such as the observation of a
traffic violation, the report of recent crimes nearby, or an informant's tip a drug
transaction was about to occur. See Kuhn, 213 N.J. Super. at 280-81. Also,
there was no evidence the detectives knew Accetturo or defendant was a
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suspected drug dealer or user. See Pineiro, 181 N.J. at 18, 25; see also
Citarella, 154 N.J. at 275.
Although there later emerged evidence there had been an exchange of
cash and heroin when Accetturo was in the Lincoln, the issue is the knowledge
the detectives possessed when they initially questioned Accetturo. Under
these circumstances, the detectives in the present matter could not have
reasonably believed a crime was underway when Accetturo was initially
approached and questioned. Lacking the requisite reasonable and articulable
level of suspicion to conduct an investigatory stop, the detention was
unconstitutional. 1
Defendant next argues the court erred when it found that even if
Accetturo's detention were unlawful, his resistance to arrest served to
sufficiently attenuate the seized heroin from the taint of an unlawful detention.
We disagree.
The trial court's factual finding defendant resisted arrest is supported by
sufficient credible evidence, to which we must defer. See State v. Gamble,
218 N.J. 412, 424 (2014) (citing Elders, 192 N.J. at 243). Our review of a trial
1
Defendant also argues the investigatory stop cannot be justified on the
ground it was a field inquiry, see State v. Nishina, 175 N.J. 502, 510 (2003),
but the State is not contending that it was and we discern no basis to conclude
the initial encounter was a field inquiry. See State v. Rodriguez, 172 N.J. 117,
125-27 (2002) (identifying the distinctions between a field inquiry and an
investigatory stop).
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court's application of the law to the facts is plenary, see State v. Rockford, 213
N.J. 424, 440 (2013), but we concur with the trial court's determination that
Accetturo's resistance to arrest served to attenuate any taint of the unlawful
detention.
In Williams, 192 N.J. at 4, the Court held that if certain factors apply,
evidence seized incident to a lawful arrest for resisting or obstruction will not
be suppressed even though the initial stop was unlawful. Here, the trial c ourt
properly applied and determined that the factors identified in Williams
permitted the admission of the heroin. Those factors are: "'(1) the temporal
proximity between the illegal conduct and the challenged evidence; (2) 'the
presence of intervening circumstances'; and (3) 'particularly, the purpose and
flagrancy of the official misconduct.'" Williams, 192 N.J. at 15 (quoting State
v. Johnson, 118 N.J. 639, 653 (1990)).
Here, the temporal proximity between the unlawful detention and
Accetturo's arrest was brief, but "temporal proximity 'is the least
determinative' factor[]." Id. at 16 (quoting State v. Worlock, 117 N.J. 596,
622-23 (1990)).
There was no evidence the police acted in bad faith when they sought to
place Accetturo under arrest. Most importantly, there was an intervening
criminal act, the most important factor in the attenuation analysis. See
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Worlock, 117 N.J. at 623. Specifically, Accetturo's resistance to arrest purged
the taint from the unconstitutional investigatory stop. See Williams, 192 N.J.
at 18. Further, Accetturo's own movements led to the brick of heroin
becoming dislodged from his waistband and falling to the ground, allowing the
detectives to see the brick in plain view.
Defendant argues Accetturo neither pushed nor was violent toward
Shepherd when Shepherd attempted to arrest him, and thus did not engage in a
level of resistance sufficient enough to be an intervening act. Defendant 's
assertion of the facts is patently belied by the record. Accetturo even admitt ed
he pushed against a police officer and continued to do so after he was
handcuffed and while the officer attempted to search him. Accordingly, the
trial court properly denied defendant's motion to suppress the heroin.
II
With some limited exceptions, the material evidence at trial was
essentially the same as that adduced during the suppression hearing. On
appeal, defendant makes various contentions about the admission of certain
evidence, which he claims warrants the reversal of his convictions and a
remand for a new trial. We separately address his principal contentions; the
remaining ones are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
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A
Defendant complains that during Accetturo's direct examination, the
State elicited from him that he not only acquired drugs from defendant on the
day of the subject incident, but also on other occasions as well. Defendant
argues that when Accetturo stated he purchased drugs from defendant on other
occasions, the State improperly introduced evidence defendant committed
other crimes or bad acts, in violation of N.J.R.E. 404(b). Further, defendant
contends the trial court failed to provide an immediate limiting instruction to
the jury. Defendant did not object to this testimony or to the court's failure to
provide an instruction.
If a party fails to object to the erroneous admission of testimony, the
reviewing court will disregard the admission of the testimony if it was
harmless error. However, plain error, defined by Rule 2:10-2 as error "clearly
capable of producing an unjust result," will not be disregarded by the
reviewing court. State v. Branch, 182 N.J. 338, 353 (2005). "The test of
whether an error is harmless depends upon some degree of possibility that it
led to an unjust verdict. The possibility must be real, one 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. Bankston, 63 N.J. 263, 273 (1973).
Furthermore, the reviewing court may infer from trial counsel's failure to
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object below that counsel recognized the alleged error was of no moment, or
that counsel made a tactical decision to let the error go uncorrected at trial.
State v. Macon, 57 N.J. 325, 337 (1971).
Here, the admission of the challenged evidence does not warrant a
reversal, whether analyzed under the harmless or plain error rule. At trial,
Accetturo testified he contacted defendant in order to purchase Oxycodone
from him, although he subsequently decided to buy heroin instead. Later that
day, Accetturo paid defendant $250 for a brick of heroin. It was implicit from
the evidence defendant sold drugs, because Accetturo knew to contact
defendant if he wanted to purchase any.
The introduction of N.J.R.E. 404(b) evidence requires the jury be told
"precisely the permitted and prohibited purposes of the evidence, with
sufficient reference to the factual context of the case to enable the jury to
comprehend and appreciate the fine distinction to which it is required to
adhere." State v. Marrero, 148 N.J. 469, 495 (1997) (quoting State v. Cofield,
127 N.J. 328, 341 (1992)). Such instructions must ordinarily be issued, both
when the evidence is admitted and during the closing charge to the jury. 2 See
State v. Barden, 195 N.J. 375, 390 (2008). The failure to give a limiting
2
Defendant does not raise the issue before us, but a limiting instruction was
not included in the court's final charge to the jury.
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instruction is reviewed under the plain error standard when the issue was not
raised at trial. State v. Burns, 192 N.J. 312, 341 (2007).
First, we note a defendant's decision to not request a curative or limiting
instruction for an alleged N.J.R.E. 404(b) violation suggests he "was making a
strategic decision to his advantage." State v. Yough, 208 N.J. 385, 396-97
(2011). Second, in light of the clear, independent proof of defendant 's guilt in
this matter, the trial court's error was not of such a nature as to have been
clearly capable of producing an unjust result. See R. 2:10-2; see also State v.
Gillispie, 208 N.J. 59, 93 (2011) (finding no error from the wrongful
admission of N.J.R.E. 404(b) evidence due to the "overwhelming proof
submitted by the State throughout each trial of [the] defendants' guilt,
independent of the other-crimes evidence . . . .").
B
Similar to the argument asserted above, defendant contends he was
prejudiced when Lauren Scandiffio testified he was a "known drug dealer."
Although the testimony was provided when Scandiffio was being cross-
examined by defense counsel, at trial, defendant maintained he did not solicit
this specific testimony and argued he was entitled to a mistrial. The court
determined a limiting instruction would suffice and delivered the following
instruction at the conclusion of Scandiffio's testimony:
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Ladies and gentlemen, before we hear from the State's
next witness, I want to instruct you that with respect to
Lauren Scandiffio's testimony that the defendant was a
known drug dealer, I'm instructing you to totally
disregard that testimony. It shall play no part in your
deliberations. The statement is not relevant and,
frankly, has no evidentiary basis in this case. So,
please, I'm instructing you to disregard that
completely.
On appeal, defendant does not challenge the sufficiency of the limiting
instruction or complain the trial court erred by not providing a similar
instruction in its final charge to the jury. Rather, defendant asserts no
instruction could have cured the harm caused by Scandiffio's testimony, which
is why defendant claims the court erred by not granting him a mistrial.
"The decision to grant or deny a mistrial is entrusted to the sound
discretion of the trial court, which should grant a mistrial only to prevent an
obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997).
Accordingly, this court reviews such a decision for an abuse of discretion,
upholding the trial court's decision unless manifest injustice would result.
State v. Labrutto, 114 N.J. 187, 207 (1989).
Here, we uphold the court's decision denying defendant a mistrial
because no manifest injustice will result if we do. There is no reason to
believe the jury was unwilling or unable to follow the curative instruction.
State v. Manley, 54 N.J. 259, 270 (1969). Even if the instruction were
A-2863-15T3
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inadequate, there was other independent evidence suggesting defendant was a
drug dealer – Accetturo contacted him to purchase the subject narcotics.
Finally, as previously noted, there was overwhelming evidence of defendant's
guilt, making Scandiffio's comment essentially superfluous.
C
During Shepherd's testimony, defendant anticipated Shepherd might
refer to the area of defendant's arrest as a "high drug area" and voiced his
concern to the trial court, arguing such term was prejudicial. The court
prohibited the prosecutor from using use this particular term, but permitted her
to question the police about why they went to the Wawa and the number of
drug arrests they had made in the area.
Defendant asserts he was unfairly prejudiced as a result of testimony
Shepherd thereafter provided about the Wawa and the area around it, because
it suggested the area was a high crime one. In the challenged testimony,
Shepherd stated:
We look for people who park in the parking lot, they
don't enter the store, they remain, you know for, could
be five minutes, could be ten minutes, could be longer.
And just to see if they meet up with other people,
because generally, in my experience, in being in those
areas, specifically that area, generally when you pull
into the Wawa, people go in and make a purchase . . .
and sometimes when we observe people in those
parking lots and they don't go in, we have made prior
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arrests in that parking lot pertaining to the use,
distribution or possession of controlled dangerous
substances.
Defendant also claims he was similarly prejudiced when Forrester
testified he had made over fifty drug-related arrests in the area. In addition,
defendant asserts Shepherd's and Forrester's testimony was irrelevant, because
it had no tendency to prove defendant possessed or distributed drugs in this
matter. Defendant acknowledges no reported New Jersey case holds the
challenged testimony improper.
We need not address the contentions defendant asserts because, in light
of the substantial evidence of defendant's guilt, the admission of the subject
testimony was harmless and incapable of leading to an unjust verdict. See
State v. Bankston, 63 N.J. 263, 273 (1973).
D
During trial, there was evidence of the following undisputed facts:
Accetturo pled guilty to possession of heroin and resisting arrest, for which he
was sentenced to a term of probation; Scandiffio pled guilty to possession of
heroin, aggravated assault, and obstruction, and was admitted into the Pretrial
Intervention Program; when Accetturo and Scandiffio pled guilty, both agreed
to provide truthful testimony against defendant.
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On appeal, defendant asserts he was denied the effective assistance of
counsel because his attorney failed to elicit from Accetturo and Scandiffio that
their lenient sentences hinged upon they testify truthfully against defendant.
Defendant also complains counsel neglected to request a cooperating witness
charge, but the record is clear counsel specifically stated he was opposed to
such a charge and it was not in fact delivered to the jury. We conclude the
claims against counsel for alleged ineffectiveness are premature.
Claims of ineffective assistance of counsel are typically not reviewed on
direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v.
Preciose, 129 N.J. 451, 460 (1992)) ("[W]e routinely decline to entertain
ineffective-assistance-of-counsel claims on direct appeal because those claims
involve allegations and evidence that lie outside the trial record."). Only when
the ineffective assistance claim can be determined on the trial record alone is it
appropriate to dispose of the issue on direct appeal. State v. Castagna, 187
N.J. 293, 313 (2006). This is not the case here, because the reasons why
counsel declined to cross-examine Accetturo and Scandiffio about their
respective plea agreements and why he objected to the cooperating witness
charge lie outside of the trial record.
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To the extent we have not addressed any argument asserted by
defendant, it is because we deemed it without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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