STATE OF NEW JERSEY VS. NADIR ROBERTS (15-03-0506, 15-07-1602, AND 15-09-2215, 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NOT FOR PUBLICATION WITHOUT THE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-4210-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NADIR ROBERTS,
Defendant-Appellant.
___________________________
Submitted November 8, 2018 – Decided November 28, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 15-03-0506,
15-07-1602, and 15-09-2215.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Nadir Roberts appeals from an April 10, 2017 judgment of
conviction and sentence. We affirm in part, and reverse and remand in part
defendant's possession of a controlled dangerous substance (CDS) with intent to
distribute in a school zone convictions for further proceedings consistent with
this opinion.
In March 2015, an Essex County grand jury charged defendant under
Indictment No. 15-03-0506 (indictment one), with: first-degree maintaining or
operating a CDS production facility, N.J.S.A. 2C:35-4; three counts of third-
degree possession of a CDS, N.J.S.A. 2C:35-10(a); three counts of third-degree
possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3);
four counts of third-degree possession of a CDS with intent to distribute in a
school zone, N.J.S.A. 2C:35-7(a). Co-defendants Mark Carter, Sadiyyah
Roberts, Wali Williams, Matthew Policarepio, and Desmond Whitlock were also
charged with various counts on the indictment.
In July 2015, defendant and co-defendant Davon Jackson were charged by
the grand jury under Indictment No. 15-07-1602 (indictment two), with: second-
degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:12-1(b)(2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and
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second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a).
In September 2015, the grand jury charged defendant and co-defendants
Antwan Parker and Abrams Clifton under Indictment No. 15-09-2215
(indictment three), with: third-degree conspiracy to commit drug crimes,
N.J.S.A. 2C:5-2; three counts of third-degree possession of a CDS, N.J.S.A.
2C:35-10(a); two counts of third-degree possession of less than one-half ounce
of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3), and (b)(5);
two counts of third-degree possession of a CDS with the intent to distribute
within 1000 feet of a school, N.J.S.A. 2C:35-7.
The charges from indictment one stemmed from events on the evening of
November 10, 2014, when Newark police officers arrived to execute a search
warrant at a residence located on North 11th Street. Detective David Martinez
obtained the warrant and supervised a large police caravan comprised of several
officers and police vehicles.
Detective Thomas Del Mauro was assigned to watch the rear of the
residence during execution of the search warrant. As Del Mauro approached the
residence he noticed several individuals on the porch, including defendant and
Carter. Del Mauro went to the backyard of the residence, and saw Carter come
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out the rear of the residence and run into an adjacent yard. Del Mauro, along
with Detective Edward Santiago, pursued Carter, and eventually arrested him.
They recovered a nine millimeter handgun and a black plastic bag containing
thirty-one envelopes of heroin, twelve vials of cocaine, and eleven bags of
marijuana Carter had attempted to discard during the pursuit.
Inside the residence, several individuals, including defendant, were
arrested for possession of a CDS. Sergeant Thomas Roe patted down defendant
and discovered a clear plastic bag containing ninety-eight glass vials of cocaine
in his shorts and another plastic bag containing 239 envelopes of heroin in his
waistband. Defendant told police the residence was his address.
Police discovered materials used to weigh, manufacture, and distribute
drugs inside the residence. Specifically, police found: a ten gram sandwich-
sized bag of marijuana, nine small green baggies of marijuana, several empty
green baggies, two digital scales, a metal grinder, ninety-eight vials of cocaine,
five boxes of empty glass vials, and three bags of blue plastic glass vial tops.
Defendant and Carter were tried on indictment one. The jury convicted
defendant of all charges. On December 9, 2016, defendant pled guilty to the
second-degree charge of unlawful possession of a weapon on indictment two,
and the two third-degree charges of possession of CDS with intent to distribute
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in a school zone on indictment three. In exchange for his plea, the State agreed
to seek a dismissal of all other charges on both indictments, and to have
defendant sentenced to five years in prison with a two-and-a-half-year period of
parole ineligibility on each count, all running concurrently with any sentence
imposed on the convictions of indictment one.
Defendant filed a motion for a new trial and acquittal of the jury trial
convictions. The sentencing judge denied the motion and sentenced defendant
on those convictions. Following a merger, defendant was sentenced to twelve
years with a six-year period of parole ineligibility on the first-degree
maintaining or operating a CDS production facility charge. Defendant received
concurrent sentences of five years, each with a three-year period of parole
ineligibility, on the three school zone counts. Regarding the charges to which
defendant had entered a guilty plea, he received a five-year sentence with a
forty-two month period of parole ineligibility for the weapon possession count,
and a five-year sentence with a two-and-a-half-year period of parole ineligibility
for the two counts of CDS possession. This appeal followed.
Defendant raises the following arguments on appeal:
POINT I - THE LAW REQUIRES DISMISSAL OF
COUNT SIX, MAINTAINING A NARCOTICS
FACILITY, BECAUSE THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE.
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POINT II - THE TRIAL COURT ERRONEOUSLY
ADMITTED HIGHLY PREJUDICIAL HEARSAY
EVIDENCE SHOWING THAT THE POLICE HAD A
SEARCH WARRANT FOR THE PREMISES WHERE
THE POLICE ALLEGED THAT THE DEFENDANT
MAINTAINED A NARCOTICS FACILITY.
A. The Evidence was Immaterial and Unduly
Prejudicial.
B. The Evidence that the Police had a Search
Warrant Violated the Hearsay Rules and
Defendant's Right to Confront Witnesses.
POINT III - THE DRUG ZONE CONVICTIONS
MUST BE VACATED BECAUSE THE DRUG ZONE
MAP IS NOT A SELF-AUTHENTICATING
DOCUMENT, WHICH WAS THE CITED
JUSTIFICATION FOR ITS ADMISSION.
POINT IV - THE DEFENDANT'S RIGHT TO DUE
PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART. I, PAR. 1 OF
THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY ERRONEOUS, DEFICIENT, AND
PREJUDICIAL JURY INSTRUCTIONS. (Partially
Raised Below).
A. The Trial Court Erroneously and
Prejudicially Instructed Jurors on the Law
of Maintaining a Narcotics Facility.
B. The Trial Court Omitted a Vital instruction
on the Law of Oral Admissions to Police,
Resulting in Substantial Prejudice. (Not
Raised Below).
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C. The Instructions Improperly Shifted the
Burden of Proof. (Not Raised Below).
D. The Trial Court Instructed Jurors They
Could Find the Defendant Guilty Based on
an Intent to Attempt Distribution without
Instructing Them on the Law of Attempted
Distribution. (Not Raised Below).
POINT V - THE SENTENCE IS EXCESSIVE
BECAUSE THE TRIAL COURT IMPROPERLY
BALANCED THE AGGRAVATING AND
MITIGATING FACTORS.
I.
On a motion for an acquittal notwithstanding the verdict, the standard of
review 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"
beyond a reasonable doubt that the crime occurred
within the State.
[State v. Denofa, 187 N.J. 24, 44 (2006) (quoting State
v. Reyes, 50 N.J. 454, 458-59 (1967)).]
"On such a motion the trial judge is not concerned with the worth, nature
or extent (beyond a scintilla) of the evidence, but only with its existence, viewed
most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App.
Div. 1974). In reviewing the denial of a motion for judgment of acquittal, we
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apply the same standard and independently review the evidence against the
defendant. Reyes, 50 N.J. at 459.
Defendant argues the sentencing judge should have granted the motion for
acquittal regarding the guilty verdict for maintaining a narcotics facility because
the jury's fact finding was against the weight of evidence presented by the State.
Primarily relying on the dissent in State v. Kittrell, 145 N.J. 112, 135-43 (1996),
defendant asserts the State's evidence was insufficient to "support a finding that
the defendant maintained the premises on a continuing basis" because "[t]here
must be continuity of use of the facility to qualify under the statute." We
disagree.
N.J.S.A. 2C:35-4 provides:
[A]ny person who knowingly maintains or operates any
premises, place or facility used for the manufacture of
. . . any substance listed in Schedule I or II, or the
analog of any such substance, or any person who
knowingly aids, promotes, finances or otherwise
participates in the maintenance or operations of such
premises, place or facility, is guilty of a crime of the
first degree[.]
"Manufacture" is defined in N.J.S.A. 2C:35-2 as:
[T]he production, preparation, propagation,
compounding, conversion, or processing of a [CDS] or
controlled substance analog, either directly or by
extraction from substances of natural origin, or
independently by means of chemical synthesis, or by a
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combination of extraction and chemical synthesis, and
includes any packaging or repackaging of the substance
or labeling or relabeling of its container[.]
[(emphasis added).]
In Kittrell, the Supreme Court interpreted the language of N.J.S.A. 2C:35-
4 and N.J.S.A. 2C:35-2, specifically the definition of the word "maintain" in the
former statute. 145 N.J. at 121-23. The Court concluded the Webster's
Dictionary definition of maintain, "to preserve in[;] carry on[;] keep up[;]
continue," reflected the legislative intent for its use of the term in the statute.
Id. at 122 (quoting Webster's Third New International Dictionary 1362 (3d ed.
1976)).
The defendant in Kittrell was charged under N.J.S.A. 2C:35-4, when
police executed a search warrant at a co-defendant's apartment and discovered
twenty-two vials of cocaine, sixteen small yellow plastic bags and fifty blue
bags containing cocaine, and a bag of marijuana. Id. at 123. Kittrell's co-
defendant admitted the drugs belonged to Kittrell, who used the co-defendant's
apartment to "cut-up," package, and repackage cocaine. Ibid. Based on the
evidence recovered and the co-defendant's statement, the Court held a
reasonable inference could be drawn by a factfinder that Kittrell maintained the
co-defendant's apartment as a narcotics packaging or repackaging facility
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pursuant to N.J.S.A. 2C:35-4. Ibid.; see also State v. Miles, 231 N.J. Super. 27(App. Div. 1989) (finding "[thirty-five] tinfoil packets of cocaine with a total
weight of 3.12 grams, two plastic bags containing cocaine with a total weight of
5.47 grams, seven vials of crack with a total weight of .487 grams, [twenty-six]
glassine envelopes bearing the logo 'over the top' and containing a total of 1.35
grams of heroin, five plastic bags containing a total of 5.2 grams of marijuana,
a scale, cutting agents and $599 in cash" sufficient evidence to reverse an order
dismissing a count charging a defendant under N.J.S.A. 2C:35-4).
The Court explained:
[F]or Kittrell to be convicted under N.J.S.A. 2C:35–4,
he must "maintain" a facility that "manufactures" a
[CDS]. To establish such "maintenance" there must be
some evidence of continuity in his use of [the]
apartment to manufacture crack. Such evidence may be
as here, that he used the apartment on more than one
occasion as a manufacturing facility. We recognize that
there may be a few cases where a person will be
apprehended the first time that he operates a
manufacturing facility. To sustain a conviction under
those circumstances, there must be some evidence that
the defendant intended to operate the manufacturing
facility on more than one occasion.
[Kittrell, 145 N.J. at 122 (emphasis added).]
Here, the evidence recovered by the police pursuant to the search warrant
was sufficient for a reasonable juror to find defendant guilty of an offense under
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N.J.S.A. 2C:35-4. The police recovered a greater amount of drugs than the
defendants in either Kittrell or Miles. Furthermore, the State offered an expert
witness who explained the evidence recovered at the residence, namely, the
baggies, vials, grinders, and scales, were materials commonly used to cut-up,
weigh, package, and distribute narcotics.
When the evidence of this case is viewed in a light favorable to the State,
and construing N.J.S.A. 2C:35-4, a reasonable jury could find the intent of
continuity required by Kittrell. 145 N.J. at 121. Even if this were the first time
defendant had operated the residence as a narcotics facility, the abundance of
drugs and paraphernalia could lead a reasonable juror to find defendant intended
to continue using the residence as a location to package drugs for distribution
on more than one occasion. For these reasons, we decline to disturb the jury's
verdict finding defendant guilty of maintaining or operating a CDS production
facility under N.J.S.A. 2C:35-4.
II.
We next address defendant's assertion the trial judge committed reversible
error by permitting the prosecutor to reference the search warrant in his opening
and during his questioning of Martinez. Generally, when error is not brought to
the attention of the trial court, we will not reverse unless the appellant shows
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the error was "clearly capable of producing an unjust result." R. 2:10-2. If the
error was objected to, or otherwise brought to the attention of the trial court, the
same standard ultimately applies notwithstanding the assertion it was "harmful
error." See State v. Weston, 222 N.J. 277, 289 (2015). This is because
reversible error must be clearly capable of producing an unjust result. State v.
Castagna, 187 N.J. 293, 312 (2006) (internal citations and quotations omitted).
If the error is harmless, it will be disregarded by the court. State v. Macon, 57
N.J. 325, 333 (1971).
The prospect of an unjust result 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." Id. at 336. Even an error of constitutional dimension will not be
considered harmful unless it contributed to the verdict. State v. Gillespie, 208
N.J. 59, 93-94 (2011); State v. Slobodian, 57 N.J. 18, 23 (1970). The burden is
on the State to prove the error did not contribute to the verdict. State v. Cabbell,
207 N.J. 311, 338-39 (2011).
Defendant argues it was error for the trial judge to allow the prosecution's
mention of the police having a search warrant for the premises because it was
immaterial to the trial and prejudicial to defendant. Specifically, the prosecutor
said the following in the opening statement:
A-4210-16T2
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Now, you are going to hear from several detectives with
the Newark Police Department who were involved in
this investigation. You're going to hear from . . .
Martinez. He was the lead detective in this case and
he's going to explain to you that he was conducting this
investigation at . . . [the residence].
He will tell you that he went to a judge and he got a
search warrant to be able to give him permission, him
and other Newark police, permission to enter that
[residence]. . . . That was [defendant's] apartment.
Now, you're going to hear that on November 10, 2014,
Martinez and several other detectives from the Newark
Police Department went to that location and executed
that warrant.
Defense counsel requested a sidebar and moved for a mistrial after the
prosecutor's mention of the search warrant. The prosecutor, relying upon State
v. Cain, 224 N.J. 410 (2016), responded that one reference was permissible. The
prosecutor also argued that the parties had addressed the issue in an earlier
motion in limine, and that he had instructed the State's witnesses to "stay away"
from the topic of search warrants. The trial judge denied defendant's motion.
The next day, the judge expanded on her decision:
Yesterday at sidebar, I did indicate that the prosecutor
would be allowed to make mention of the fact that there
was a search warrant and that the search of the subject
premises was pursuant to a search warrant. And today
I am going to set limitations. [The prosecutor]
indicated he would mention it in the opening. He would
mention it in direct and summation, and this Court finds
A-4210-16T2
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that it is appropriate, and I'm going to ask the State to
limit the question to the fact that the search of the
premises was pursuant to a search warrant that was
obtained on X date. I don't believe there's any need to
go into the fact that it was issued by a Superior Court
Judge, so I would ask that you stay away from that; and
most certainly, I would explicitly instruct you to stay
away from anything pertaining to the investigation that
led up to the issuance of that search warrant. Okay?
And that goes to all the parties.
The Supreme Court has stated:
A search warrant can be referenced to show that the
police had lawful authority in carrying out a search to
dispel any preconceived notion that the police acted
arbitrarily. A prosecutor, however, may not repeatedly
mention that a search warrant was issued by a judge if
doing so creates the likelihood that a jury may draw an
impermissible inference of guilt.
[Cain, 224 N.J. at 435.]
"Surely, the prosecutor should not in any way imply that because a Superior
Court judge issued a warrant based on evidence supplied by law enforcement
authorities, the same evidence presented at trial has received a judicial
endorsement." Id. at 433-34.
In Cain, "the prosecutor mentioned the existence of a search warrant no
less than fifteen times in the opening statement, summation, and during
questioning of witnesses" and "those references specifically informed the jury
that a Superior Court judge issued the warrant." Id. at 435. The Court noted
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these references "went well beyond what was necessary to inform the jury that
the officers were acting with lawful authority." Id. at 436.
In State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), we encountered
similar circumstances to the ones presented here. In Milton, the State argued
"that the jury should be informed that the officers had proceeded to the house to
execute valid search warrants to refute any suggestion that the officers had acted
arbitrarily." Id. at 520. We stated "this alleged purpose in mentioning the
presence of a search warrant could have been fully accomplished by the
prosecutor's reference only to the existence of a search warrant for the premises
that were invaded." Ibid. (citing State v. Bankston, 63 N.J. 263, 268 (1973)).
Here, there was no violation of the holdings in Cain and Milton. When
the judge established the conditions and parameters of the State's ability to
reference the search warrant, the prosecutor complied and limited his
questioning about the search warrant to the facts necessary to establish the police
had lawful authority to enter the residence. Furthermore, considering the
overwhelming weight of the evidence seized by police from defendant's person
and the residence, we do not find the isolated references to the existence of a
search warrant prejudicial such that they were capable of an unjust result
constituting reversible error. Because the reference to a search warrant
A-4210-16T2
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complied with Cain and Milton, we reject defendant's argument the mention of
the search warrant was inadmissible on hearsay grounds.
III.
Defendant argues the school-zone offense convictions must be reversed
and remanded because the State improperly authenticated the government map
establishing the boundaries of school zones. The State concedes the map was
improperly authenticated and the matter should be remanded. We agree.
In State v. Wilson, 227 N.J. 534 (2017), the defendant was charged
pursuant to N.J.S.A. 2C:35-7.1(a), which states:
Any person . . . distributing, dispensing or possessing
with intent to distribute a [CDS] or controlled substance
analog while in, on or within 500 feet of the real
property comprising a public housing facility, a public
park, or a public building is guilty of a crime of the
second degree.
The statute also provides:
In a prosecution under this section, a map produced or
reproduced by any municipal or county engineer for the
purpose of depicting the location and boundaries of the
area on or within 500 feet of a public housing facility
. . . , the area in or within 500 feet of a public park, or
the area in or within 500 feet of a public building, or a
true copy of such a map, shall, upon proper
authentication, be admissible and shall constitute prima
facie evidence of the location and boundaries of those
areas, provided that the governing body of the
municipality or county has adopted a resolution or
A-4210-16T2
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ordinance approving the map as official finding and
record of the location and boundaries of the area or
areas on or within 500 feet of a public housing facility,
a public park, or a public building.
[N.J.S.A. 2C:35-7.1(e).]
"[The Supreme Court] held that such maps are not self-authenticating."
State v. Dorn, 233 N.J. 81, 91-92 (2018) (citing Wilson, 227 N.J. at 553).
Rather, the Wilson Court held the "[p]roper authentication of [such a] map
required a witness who could testify to its authenticity and be cross-examined
on the methodology of the map's creation and its margin of error." Wilson, 227
N.J. at 553 (citing State v. Simbara, 175 N.J. 37, 47-48 (2002)). The Court
remanded for further proceedings consistent with its holding. Id. at 554.
Here, it is undisputed the trial judge erred when she admitted the
government map on grounds it was self-authenticating. It is also undisputed
defendant's counsel made a timely objection. For these reasons, pursuant to
Wilson, we reverse and remand defendant's school-zone convictions.
IV.
Defendant's raises several claims regarding the jury instructions, which
are unavailing. He argues the jury instructions failed to mention the State had
to prove he used the residence on multiple occasions and had the intent to
manufacture before the jury could convict him of the CDS facility charges.
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Defendant contends the trial judge should have instructed the jury on how to
assess the statements he made to police regarding his residence while in police
custody. Defendant claims after jurors deadlocked, the court shifted the burden
to him by instructing the jury it had to be convinced of defendant's innocence
rather than his guilt. Defendant argues the judge instructed the jury it could
convict defendant on attempted distribution without providing the jury the
instruction regarding attempt.
"Correct jury charges are essential to a fair trial and failure to provide a
clear and correct charge may constitute plain error." State v. Holden, 364 N.J.
Super. 504, 514 (App. Div. 2003). Indeed, erroneous instructions on matters or
issues that are material to the jury's decision are presumed to be reversible error.
State v. Warren, 104 N.J. 571, 579 (1986). Moreover, if a jury instruction is
particularly "crucial to the jury's deliberations on the guilt of a criminal
defendant," then "'[e]rrors [having a direct impact] upon these sensitive areas of
a criminal trial are poor candidates for rehabilitation' under a plain error theory."
State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191,
206 (1979)).
"[O]ur case law requires the jury to find all the elements of an offense
with specific reference to that offense." State v. Casilla, 362 N.J. Super. 554,
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567 (App. Div. 2003). Accordingly, "[t]he trial court must give a clear
explanation of the applicable law to provide the jury with an adequate
understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66,
85 (2001) (citing State v. Burgess, 154 N.J. 181 (1988)).
Here, the trial judge charged the jury regarding maintaining a CDS facility
charge as follows:
I have already stated cocaine and marijuana are
dangerous substances prohibited by statute. Heroin is
also a dangerous substance prohibited by statute. The
statute read together with the indictment identifies the
elements in which the State must prove beyond a
reasonable doubt to establish [the maintaining CDS
facility charge] of this indictment. They are as follows:
Number 1, that the defendant . . . maintained or
operated, aided or promoted, financed or otherwise
participated in the maintenance or operation of a
premises, place or facility. To maintain means to carry,
to keep up, to continue.
[Number 2][,] [i]n order for the State to prove
that [] defendant . . . maintained the premise, place or
facility there must be evidence of the continuity in the
use of [the residence] to manufacture a [CDS], that is
cocaine, heroin and marijuana, the premises, place or
facility — that the premises, place or facility was used
for the manufacture of cocaine, heroin or marijuana.
Manufacture means the production, preparation,
propagation, compounding, conversion or processing
of a [CDS] or controlled substance analogue either
directly or by extraction from substances of natural
origin or independently by means of chemical
synthesis, and includes any packaging or repackaging
A-4210-16T2
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of the substances or labeling or relabeling of its
container. Number 3, that the defendant . . . acted
knowingly. I have already defined knowingly for you.
If you find the State has proven each of these
elements beyond a reasonable doubt, then you must find
. . . [defendant] guilty of [the maintaining CDS facility
charge] of the indictment. If you find that the State has
failed to prove any of the elements beyond a reasonable
doubt, then you must find the defendant . . . not guilty[.]
These instructions mirror the language of Kittrell and clearly set forth the
elements of the charge. The instructions defined "maintain" and "manufacture"
the same way the Kitrell Court interpreted the language of the relevant statutes.
Moreover, defendant did not object to the instructions regarding the maintaining
CDS facility charges. As we have stated, given the substantial evidence seized
by police, the trial judge's instructions were neither prejudicial nor capable of
an unjust result.
Defendant contends the trial judge's omission of a vital instruction on his
oral admissions to police regarding his residence was prejudicial and contrary
to State v. Hampton, 61 N.J. 250 (1972). We disagree.
In State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div. 1997), we
discussed the requirements of a charge pursuant to Hampton. We noted
"Hampton requires a trial court to specifically instruct a jury to consider the
credibility of a defendant's statement only if it was elicited in the 'physical and
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psychological environment' of police interrogation." Ibid. "If, however, the
defendant's statement is unnecessary to prove defendant's guilt because there is
other evidence that clearly establishes guilt, or if the defendant has
acknowledged the truth of his statement, the failure to give a Hampton charge
would not be reversible error." Jordan, 147 N.J. at 425-26.
At the outset, we note defendant never sought such a charge during the
trial. Regardless, the charge is inapplicable because defendant has not alleged
any facts to demonstrate his statement was elicited within a physical and
psychological environment of police interrogation, or was in any way
involuntary. Moreover, defendant acknowledged the truth of his statement when
he admitted his connection to the residence at trial by testifying the address of
the residence was the same as on his driver's license. Additionally, there was
substantial evidence presented at trial, which clearly established defendant's
guilt, namely, the discovery of drugs packaged for distribution on his person and
the materials to package and distribute drugs inside the house where defendant
was located. For these reasons, the failure to give the jury a charge pursuant to
Hampton was not reversible error.
Defendant also contends the instructions provided by the trial judge
"shifted the burden of proof to the defendant." Specifically, he points to the
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following passage from the trial judge's charge: "[I]n the course of your
deliberations, do not hesitate to reexamine your [own] views and to change your
opinion if convinced it is erroneous[.]"
Defendant's argument lacks merit. R. 2:11-3(e)(2). The language read by
the judge was from the model charge on deliberations, not the burden of proof.
See Model Jury Charges (Criminal), "Final Charge-Deliberations" (rev. May 12,
2014). Moreover, defendant did not object to the model charge. For these
reasons, we decline to conclude the charge was prejudicial or erroneous.
Defendant argues the trial judge "improperly injected a theory of attempt
into the case." Specifically, he points to the model jury charge read by the trial
judge regarding CDS possession with intent to distribute. See Model Jury
Charges (Criminal), "Possession of a Controlled Dangerous Substance with
Intent to Distribute (N.J.S.A. 2C:35-5)" (rev. June 8, 2015).
In State v. Belliard, a defendant argued the trial court's failure to instruct
the jury on the definition of "attempt" in an attempted robbery charge deprived
him of a fair trial. 415 N.J. Super. 51, 64-66 (App. Div. 2010). We noted the
"substantial step" element of attempt should have been explained in the jury
charge. Id. at 73-74. We concluded "while the judge's failure to charge the jury
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with attempt was in error, this error was not sufficient to lead the jury to a result
it would not have otherwise reached." Id. at 74 (citing R. 2:10-2).
Here, again, defendant did not ask the judge to define attempt for the jury.
Regardless, the jury did not need the definition of the term in order to decide
whether defendant possessed drugs with the intent to distribute. As we noted,
the quantity and nature of the package drugs removed from defendant's person,
as well as the manufacturing and distribution paraphernalia seized inside the
residence, would not confuse an average juror assessing whether defendant
possessed CDS with intent to distribute.
V.
Finally, we reject defendant's challenges to the non-school-zone-related
sentences. We review a "trial court's 'sentencing determination under a
deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J.
317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also
State v. Pierce, 188 N.J. 155, 169-70 (2006). We affirm a sentence if: (1) the
trial court followed the sentencing guidelines; (2) its findings of fact and
application of aggravating and mitigating factors were based on competent,
credible evidence in the record; and (3) the application of the law to the facts
does not "shock[ ] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
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(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a
trial court's sentencing decision, we will not "substitute [our] judgment for that
of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State
v. O'Donnell, 117 N.J. 210, 215 (1989)).
Defendant claims his sentence was excessive and should not have
exceeded ten years. He argues the sentencing judge double counted his prior
criminal record and conviction to find aggravating factor three. Defendant
argues the judge should not have found a need to deter as an aggravating factor
because he claims this factor has lost its value over time. Defendant asserts the
judge should have found mitigating factors one and two because his conduct
neither caused nor threatened serious harm, and defendant did not contemplate
his conduct would cause or threaten serious harm.
The sentencing judge found aggravating factor three, the risk that
defendant will reoffend. N.J.S.A. 2C:44-1(a)(3). This finding was evident from
defendant's criminal history, specifically, defendant's thirteen arrests, seven of
which were for CDS-related offenses. Defendant's criminal history also clearly
supported the judge's finding of aggravating factor six, the extent of the
defendant's prior criminal record and the seriousness of the offenses of which
he has been convicted. N.J.S.A. 2C:44-1(a)(6). The judge also found
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aggravating factor nine, the need to deter defendant and others from violating
the law, again relying on defendant's criminal history. N.J.S.A. 2C:44-1(a)(9).
The sentencing judge did not find any mitigating factors.
Defendant did not raise any of the mitigating factors he now argues at
sentencing. Also, defendant's conduct was serious enough that mitigating
factors one and two do not apply to him. In State v. Tarver, 272 N.J. Super. 414(App. Div. 1994), we addressed a similar argument. There, the defendant had
been convicted of a CDS distribution charge and raised a similar argument
regarding the mitigating factors. Id. at 414. We concluded: "[d]istribution of
cocaine can be readily perceived to constitute conduct which causes and
threatens serious harm. There was also reason to believe, in view of defendant's
history of drug involvement, that his violations of the law would continue." Id.
at 435.
Here, defendant's circumstances are no different than in Tarver. The
sentencing judge followed the sentencing guidelines, and her findings regarding
the applicability of the aggravating factors were supported by the record,
namely, defendant's extensive criminal history. The sentence defendant
received for the non-school zone related offenses neither shocks the judicial
conscience nor constitutes an abuse of discretion.
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Affirmed in part, and reversed and remanded in part as to defendant's
conviction and sentence for four counts of third-degree possession of a CDS
with intent to distribute in a school zone in indictment one. We do not retain
jurisdiction.
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