STATE OF NEW JERSEY v. LASHAWN SHERMAN (18-11-1556, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2552-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LASHAWN SHERMAN,
Defendant-Appellant.
________________________
Argued May 18, 2022 – Decided June 27, 2022
Before Judges Hoffman, Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-11-
1556.
Zachary G. Markarian, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Zachary G.
Markarian, of counsel and on the brief).
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A jury found defendant Lashawn Sherman guilty of eleven offenses. He
appeals his convictions, challenging the admissibility of certain law
enforcement testimony and the jury instruction on flight. Defendant also appeals
his seventeen-year aggregate sentence, claiming the court erred by double-
counting two of his prior convictions as both predicate offenses for imposing a
mandatory extended range sentence and as an aggravating factor in setting the
length of that term. We affirm in part, vacate in part, and remand for
resentencing on count nine.
I.
A Middlesex County grand jury issued an indictment charging defendant
with third-degree possession of a controlled dangerous substance (CDS)
(heroin), N.J.S.A. 2C:35-10(a)(1) (counts one and eight); third-degree
distribution of CDS (heroin), N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two);
third-degree distribution of CDS (heroin) within 1000 feet of school property,
N.J.S.A. 2C:35-7(a) (count three); second-degree distribution of CDS (heroin)
within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a) (count four); third-degree
possession of CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
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-5(b)(3) (count five); third-degree possession of CDS (cocaine) with intent to
distribute within 1000 feet of school property, N.J.S.A. 2C:35-7(a) (counts six
and ten); third-degree possession of CDS (heroin) with intent to distribute within
1000 feet of school property, N.J.S.A. 2C:35-7.1(a) (count seven); second-
degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and (b)(3) (count nine); fourth-degree resisting arrest, N.J.S.A. 2C:29-
2(a)(2) (count eleven); and third-degree financial facilitation of criminal
activity, N.J.S.A. 2C:21-25(a) (count twelve). Count thirteen only charged
codefendant Richard Chambers. 1
Defendant filed a motion to suppress evidence seized during the search of
defendant's person and vehicle following a surveillance operation. During the
suppression motion hearing, police officer testimony provided the following
version of the incident.
On the morning of September 11, 2018, Detective Joshua Alexander of
the New Brunswick Police Department (NBPD) Narcotics Intel Unit was
conducting surveillance of Seaman Street between Remsen Avenue and Throop
1
Codefendant Chambers pled guilty to third-degree possession of CDS,
N.J.S.A. 2C:35-10(a)(1) and was sentenced to probation. He is not a party to
this appeal.
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Avenue. Alexander had been a member of the NBPD for twelve years, had
participated in "thousands of [narcotics] investigations" and was "familiar with
[the] area around Seaman, Remsen and Throop." Alexander testified that
"Seaman Street [was] where a lot of narcotic sales are done," and the NBPD had
received numerous complaints from citizens that "numerous individuals were
selling quantities of narcotics" there. He stated that "a lot of people who come
into town know" they can purchase "any type of street level narcotics" in this
area.
While conducting surveillance, Alexander "had a very good view" of
defendant, who was wearing a grey hooded sweatshirt, a black knit hat, and
light-colored jeans while sitting on the front steps of a house on Seaman Street.
Alexander saw an older white male, later identified as Chambers, approach
defendant wearing a dark color hooded sweatshirt. Defendant conversed with
Chambers and then Chambers handed him "some money." Alexander
specifically testified that "a narcotics transaction happened where [defendant]
reached down the front of his pants," took out "small packages" that were "about
the size of a postage stamp" and handed them to Chambers who put the packages
in his pants and walked away.
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Alexander radioed his team and directed them to pursue Chambers.
Detective Jeffrey Monticello stopped Chambers about "a block and a half away"
and explained to him what Alexander witnessed. Monticello "gave [Chambers]
the opportunity to be forthcoming" and Chambers reached into his waistband
and pulled out ten decks of heroin, each stamped "Mayweather" in green ink. 2
Monticello informed the other officers that Chambers possessed heroin. As a
result, Officer Michael Powers drove an unmarked police car toward defendant
to arrest him. Powers was wearing plain clothes and had his badge "prominently
displayed" around his neck.
Before Powers "could even get out of [his] vehicle," defendant
"immediately took off running." Powers "immediately identified [himself] as a
police officer" and yelled loudly at defendant to stop. Defendant did not stop
running, but Powers caught up to him and placed him under arrest. Defendant
was searched incident to arrest and Monticello recovered heroin with the same
"Mayweather" stamp and $592 in various denominations from defendant's
pockets.
2
"'Decks' of heroin refer to the 'little glassine packets' that contain 'the powdery
substance.'" State v. McNeil-Thomas, 238 N.J. 256, 263 n.1 (2019) (quoting
State v. Morrison, 188 N.J. 2, 5 (2006)).
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Defendant was transported to the police station where an additional six
packets of heroin were found during a strip search. Detectives also found a key
fob in his pocket which led detectives to a Volvo about a block away from
Throop and Seaman Streets. The car was towed to the NBPD sally port and after
obtaining a warrant to search it, Monticello found a "plastic bag containing 323
packets of crack cocaine" in the center console. Fifty packets of heroin, $1,812
in cash, and two motor vehicle summonses issued to defendant were found in
the glove compartment.
The court found the State satisfied its burden of proof that the officer's
observations justified the stop, arrest, and subsequent searches. The court
denied the motion to suppress in an oral decision and an accompanying order.
A jury trial was held over a three-day period in October 2019. Tiffany
Meeks of the New Jersey State Police Laboratory testified that she tested the
drugs found on defendant and Chambers and in defendant's vehicle. She
confirmed that one of the ten glassines found on Chambers and one of the fifty
glassines found in defendant's car tested positive for heroin. She also tested
twenty-nine of the 323 samples found in the center console of defendant's car
and confirmed they tested positive for cocaine. The total weight contained in
the 323 bags was 37.75 grams. James Meehan of the State Office of Forensic
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Scientists analyzed one of the six glassines found on defendant and confirmed
it tested positive for heroin.
Agent Daniel Muntone of the Middlesex County Prosecutor's Office
testified as the State's expert in the field of street-level narcotics possession and
distribution. His work as an agent followed a twenty-seven-year career in law
enforcement. Muntone explained that heroin was commonly packaged and sold
in wax folds that are stamped with a brand, typically containing 0.02 to 0.03
grams, and costing about five to ten dollars each. Ten of these bags were
referred to as a "bundle."
Muntone explained that a drug user, as opposed to a dealer, would buy,
and ingest, only "one to two bags of heroin" at a time. He added that drug users
are typically in possession of drug paraphernalia such as needles, cut straws, and
spoons. In contrast, when heroin is possessed with an intent to distribute, wax
folds in large quantities, scales, stamps, and rubber bands could be found.
Muntone additionally testified regarding crack cocaine. He explained that
a typical user buys one or two rocks costing about ten dollars. Crack users
typically possess pipes, and a distributor would usually have baggies to package
it and cash in various denominations.
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Muntone made it clear that "every case stands on its own" and various
factors such as the amount of a drug, the packaging, and the paraphernalia found,
are all considered when determining whether someone's possession is for
personal use or distribution.
On appeal, defendant challenges Detective Alexander's testimony about
what he witnessed on the date of defendant's arrest. The relevant sections of his
testimony are outlined below.
Prosecutor: And what happened as you observed this
individual wearing that sweatshirt, the hat, and the
jeans?
Detective Alexander: He was sitting on . . . the front
steps of 134 Seaman Street. There was several other
people in the area. While he was sitting there, he was
approached by another male, older white male, who was
wearing like a dark color sweatshirt or hoodie. After a
brief conversation, a narcotics transaction happened
where Mr. Sherman reached down in front of his pants.
After-- after the gentleman who came up with a Mr.
Chambers. Mr. Chambers handed Mr. Sherman some
money. Mr. Sherman took the money, reached down
the front of his pants, pulled out what I believed to be-
Defense Counsel: I'm going to object.
The Court: Grounds?
Defense Counsel: As -- as to unduly prejudicial, lack of
foundation. It's undetermined at that time what, if
anything, the object was.
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....
The Court: I'm going to -- I'm going to allow it. I expect
there to be a . . . foundation to be laid after.
The direct questioning by the prosecutor continued:
Prosecutor: So -- so, Detective, can -- can you describe
specifically what you observed, without speculating as
to -- as to what it was?
Detective Alexander: Mr. Sherman reached down in
front of his pants –
Prosecutor: Uh-huh.
Detective Alexander: -- removed small packages,
which are about the size of a postage stamp, and gave a
-- a quantity to Mr. Chambers. Mr. Chambers then put
that down in front of his pants and walked out of the
area.
Prosecutor: And after you observed this, what did you
believe had just occurred?
Detective Alexander: I believed that there was a
narcotics transaction right there.
The second contested portion of testimony occurred as follows. The
prosecutor projected a map of the area onto a wall in the courtroom and asked
Alexander to "indicate with the laser pointer where [on the map he] observed
what [he] believed to be at the time a narcotics sale?" Alexander pointed to an
area of the map and responded, "Right around here." Next, the prosecutor asked
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Alexander to indicate with the laser pointer "where the white male went after
the narcotics transaction," referring to Chambers. Alexander stated the man
"walked down to Remsen Avenue. He made the turn off Remsen, going towards
Handy Street, and once he made this turn here, [Alexander] couldn't see him
anymore."
The prosecutor continued using the map which led to the third portion of
testimony that defendant argues on appeal was unduly prejudicial.
Prosecutor: Now, Officer, just looking at this map, and
you might have to get up, can you see where the Lord
Stirling School is on the map?
Detective Alexander: Yes.
Prosecutor: And can you point to it, just so the jury
sees it too?
Detective Alexander: Lord Stirling School is right
here. It's -- it's within these grey surface areas.
Prosecutor: Now, Detective, with this red pen, can you
just make just an X right where you observed what you
believed to be the hand-to-hand transaction?
Detective Alexander: Right. So this is Remsen Avenue
right here. There's Handy. There's Seaman. The
transaction -- this is -- this is (inaudible). This is
Throop here. So, I was right around here. There's the
(inaudible) over here on (inaudible) Street, around here.
A-2552-19
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Defense counsel only objected to the first section of this testimony now
being challenged on appeal. The objection was based solely on the testimony
being "unduly prejudicial, lack[ing] of foundation" and "undetermined at that
time what, if anything, the object was."
In addition, defendant argues on appeal that the court erred by presenting
inappropriate jury instructions that confused the issues of resisting arrest by
flight and flight as proof of consciousness of guilt. The flight instructions had
been discussed earlier at the charge conference, where the court, defense
counsel, and the prosecutor considered the difference between the offense of
resisting arrest by flight and the jury charge permitting the jury to consider flight
as an adverse inference. The prosecutor requested a charge on flight as
consciousness of guilt, however the court ruled that it would not provide th at
charge because it would result in "double-counting" flight as both a distinct
charge and as proof of consciousness of guilt for all charges. As a result, the
instructions charged the jury as to resisting arrest by flight and did not address
flight as consciousness of guilt.
Later during jury deliberations, the jury inquired about a question on the
verdict sheet that related to the resisting arrest by flight charge. The jury
requested a "definition of flight or act of flight." The court and counsel then
A-2552-19
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searched for a definition in the Model Criminal Jury Charges. The prosecutor
noted, "I think that was our problem last week was that the model jury
instructions didn't actually have a . . . definition of flight." The court responded
that maybe it could use the definition for flight contained in the model jury
charge for flight as consciousness of guilt.
The court and the prosecutor then discussed the appropriate portions
which should be read to the jury, and throughout, defense counsel did not
participate or make any grievances known. The court asked defense counsel if
he had "any opinion" to which he responded he did not. In response to the jury's
question, the court gave the following instruction to the jury:
[Y]ou recall that there was some testimony in the case
from which you may infer that the defendant fled
shortly after the alleged commission of the offense -- of
the crime.
The question of whether the defendant fled after
the commission of the crime is another question of fact
for your determination. Mere departure from a place
where a crime has been committed does not constitute
flight. If you find that the defendant, fearing that an
accusation or arrest would be made against him on the
charge involved in the indictment, took refuge in flight
for the purpose of evading the accusation or arrest on
that charge, then you may consider such flight in
connection with all the other evidence in the case as an
indication of proof of consciousness of guilt.
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Flight may only be considered as evidence of
consciousness of guilt if you should determine that the
defendant's purpose in leaving was to evade accusation
or arrest for the offense charged in the indictment.
If after consideration of all the evidence you find
that the defendant fearing that an accusation or arrest
would be made against him on the charge involved in
the indictment took refuge and flight for the purpose of
evading the accusation or arrest, then you may consider
such flight in connection with all the other evidence in
the case as an indication of proof or proof of
consciousness of guilt.
It is for you as judges of the facts to decide
whether or not evidence of flight shows a consciousness
of guilt and the weight to be given such evidence in
light of all the other evidence in the case.
The jury found defendant guilty of all twelve counts pertaining to him.
The State moved pursuant to N.J.S.A. 2C:43-6(f) for a mandatory extended term
on count nine based on defendant's prior convictions.
Defendant acknowledged that he was mandatory extended term eligible
on count nine. Defense counsel requested that all terms run concurrently, and
that the court impose a twelve-year term with a four-year period of parole
ineligibility for the mandatory extended term on count nine. Noting that the
extended sentencing range on count nine was five to twenty years, the State
argued for a fourteen-year term with seven years of parole ineligibility on count
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nine, and a consecutive three-year term on count twelve, yielding a seventeen-
year aggregate term.
The court noted defendant was thirty years old and recounted his pri or
juvenile and adult record, which began in 2006 and included an unsuccessful
prior stint in Recovery Court. The court recounted defendant's violations of
probation as a juvenile and his violation of probation and parole as an adult. The
court gave great weight to aggravating factors three (risk of reoffending); six
(prior record); and nine (need for deterrence). N.J.S.A. 2C:44-1(a)(3), (6), and
(9). The judge found no mitigating factors and was clearly convinced that the
aggravating factors substantially outweighed the non-existent mitigating factors.
After appropriate mergers, the court sentenced defendant to four
concurrent terms that yielded an aggregate seventeen-year term, subject to seven
years of parole ineligibility. Specifically, on counts four and seven, defendant
was sentenced to seven-year terms with three years of parole ineligibility. The
court granted the State's application to sentence defendant to a mandatory
extended term on count nine pursuant to N.J.S.A. 2C:43-6(f), and sentenced
defendant to a fourteen-year term with seven years of parole ineligibility. On
count eleven, defendant received an eighteen-month term. On count twelve,
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defendant received a three-year term running consecutively to count nine. This
appeal followed.
Defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT VIOLATED [DEFENDANT'S]
RIGHT TO A FAIR TRIAL BY ALLOWING THE
POLICE DETECTIVE TO TESTIFY THAT HE
OBSERVED [DEFENDANT] MAKE A NARCOTICS
SALE.
POINT II
DETECTIVE ALEXANDER'S TESTIMONY THAT
THE AREA WAS KNOWN FOR "A LOT OF
NARCOTIC SALES" WAS IRRELEVANT AND
PREJUDICIAL. (Not raised below).
POINT III
IN RESPONSE TO A JURY QUESTION
REGARDING THE CHARGE OF RESISTING
ARREST BY FLIGHT, THE COURT IMPROPERLY
INSTRUCTED THE JURY FOR THE FIRST TIME
THAT IT COULD CONSIDER FLIGHT AS PROOF
OF CONSCIOUSNESS OF GUILT FOR ALL
CHARGES. (Not raised below).
POINT IV
THE COURT ERRED IN FINDING AND WEIGHING
AGGRAVATING FACTORS BY DOUBLE-
COUNTING THE CONVICTIONS THAT MADE
SHERMAN EXTENDED-TERM ELIGIBLE IN
AGGRAVATION AND CONSIDERING
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"CONTACTS" FOR WHICH SHERMAN WAS NOT
CONVICTED. (Not raised below).
In a pro se supplemental brief, defendant raises the following points:
POINT I
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN COUNSEL'S
FAILURE TO CHALLENGE THE SEIZURE AND
PRE-WARRANT IMPOUNDMENT OF HIS
VEHICLE.
(a) The Administrative Impoundment of Defendant's
Vehicle was Invalid as a Matter of Law.
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT
IN FAILING TO DISCLOSE THE IMPEACHMENT
EVIDENCE TARGETING ITS MOST CRUCIAL
TRIAL WITNESS, IN VIOLATION OF THE UNITED
STATE'S SUPREME COURT DECISION IN BRADY
V. MARYLAND, 373 U.S. 83 (1963).
II.
An error is harmful if it is "clearly capable of producing an unjust result."
The harmful error rule is used when a specified error was brought to the trial
judge's attention. State v. G.E.P., 243 N.J. 362, 389 (2020). Harmless error is
not a ground for reversal. That is so because
[t]rials, particularly criminal trials, are not tidy things.
The proper and rational standard is not perfection; as
devised and administered by imperfect humans, no trial
A-2552-19
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can ever be entirely free of even the smallest defect.
Our goal, nonetheless, must always be fairness. "A
defendant is entitled to a fair trial but not a perfect one."
[State v. R.B., 183 N.J. 308, 333-34 (2005) (quoting
Lutwak v. United States, 344 U.S. 604, 619 (1953)).]
As with "plain error," an error during a jury trial will be found "harmless"
unless there is a reasonable doubt that the error contributed to the verdict by
leading the jury "to a result it otherwise might not have reached." State v.
Daniels, 182 N.J. 80, 95 (2004) (quoting State v. Macon, 57 N.J. 325, 336
(1971)).
Defense counsel did not object to the high crime area testimony or the jury
instructions. Consequently, those arguments are subject to review for plain
error. See State v. Singh, 245 N.J. 1, 13 (2021) (noting that when a party does
not object to an alleged trial error or otherwise properly preserve the issue for
appeal, it may nonetheless be considered by the appellate court if it meets the
plain error standard of Rule 2:10-2.) Reversal is appropriate only if the error
was "clearly capable of producing an unjust result." R. 2:10-2. The error 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. Taffaro, 195 N.J. 442,
454 (2008); accord State v. Dunbrack, 245 N.J. 531, 544 (2021).
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III.
Applying these standards of review, we first address whether defendant
was denied a fair trial because of Detective Alexander's testimony. Defendant
argues that Detective Alexander was permitted to testify "repeatedly, over
defense objection, to his belief that he saw [defendant] make a 'narcotics
transaction." Defense counsel objected once during this line of questioning.
Defendant argues such testimony violates case law limiting the State's
presentation of lay opinion from a police officer, particularly State v. McLean,
205 N.J. 438 (2011). Defendant states that McLean "plainly prohibited"
Alexander's testimony because he did not "confine his testimony to his own
observations" and testified as to what he believed he witnessed.
N.J.R.E. 701 permits a non-expert witness to offer "testimony in the form
of opinions" but "only . . . if it falls within the narrow bounds of testimony that
is based on the perception of the witness and that will assist the jury in
performing its function." McLean, 205 N.J. at 456. "[U]nlike expert opinions,
lay opinion testimony is limited to what was directly perceived by the witness
and may not rest on otherwise inadmissible hearsay." Id. at 460 (citing N.J.R.E.
703).
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In McLean, our Supreme Court announced certain restrictions on the
ability of prosecutors to present lay opinion testimony from police officers who
have not been proffered by the State as expert witnesses. Id. at 460-63. The
McLean Court specifically considered testimony given by a police officer who
participated in an investigation that led to the defendant's prosecution for
possession of CDS and possession with intent to distribute. Id. at 443-47. There
the officer testified that he observed the defendant engage in two transactions.
Id. at 443-44. Over defense counsel's objection, the prosecutor asked the officer:
"So based on your own experience sir, and your own training, what did you
believe happened at that time?" Id. at 446. The trial court permitted the officer,
as a lay witness, to testify that he believed he had observed a drug transaction.
Ibid. On appeal, the Court held that the police officer's statement was
inadmissible because it was an expression of a belief in the defendant's guilt ,
and because it offered an opinion on matters that were not beyond the
understanding of the jury. Id. at 463; see also N.J.R.E. 701. The Court further
noted that admissible fact testimony by a police officer cannot express what the
officer "believed," "thought," or "suspected." Id. at 460.
Here, the State acknowledges that the prosecution erred in presenting
testimony from Alexander giving his lay opinion that the activities he witnessed
A-2552-19
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appeared to be a drug transaction. This acknowledged error does not
automatically mandate reversal of defendant's conviction and a new trial.
"When evidence is admitted that contravenes not only the hearsay rule but also
a constitutional right, an appellate court must determine whether the error
impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014) (citing
Chapman v. California, 386 U.S. 18, 24 (1965)). "The standard has been phrased
as requiring a reviewing court 'to declare a belief that [the error] was harmless
beyond a reasonable doubt.'" Ibid. (alteration in original) (quoting Chapman,
386 U.S. at 24).
In addition, defendant's only objection to the testimony was that the
testimony was "unduly prejudicial" and "lack[ed] foundation" because it was
"undetermined at that time what, if anything, the object was." Defense counsel
did not cite or specifically articulate a violation of the lay opinion rule discussed
at length in McLean. Accordingly, we review for plain error.3
3
See State v. Covil, 240 N.J. 448, 472 n.6 (2020) ("At trial, defendant objected
to 'the characterization' in the expert witness's testimony, but did not cite
N.J.R.E. 404(b) or [State v. Cofield,127 N.J. 328 (1992)], and accordingly this
Court reviews the trial court's decision for plain error."); see also State v. Tung,
460 N.J. Super. 75, 100 (App. Div. 2019) ("Defense counsel did not object to
any other statements by [the detective] touching on defendant's guilt or veracity.
Although partially raised, we review this issue under the plain error standard as
well.").
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Defendant has the burden of showing that impermissible lay opinion
testimony was "clearly capable of producing an unjust result." R. 2:10-2.
Defendant has not met that burden. We conclude the error was harmless in light
of the strength of the State's other proofs. Defense counsel did not contest that
a narcotics transaction took place but only stated that police "charged the wrong
person with distribution of narcotics." Defense counsel tried to raise doubt and
implicate others to no avail. The jury rejected that defense.
Defendant contends this testimony violated McLean and invaded the
province of the jury. Our careful review of the record convinces us the error did
not impact the verdict and was harmless beyond a reasonable doubt. There is
little to suggest that the error led the jury to a result it otherwise might not have
reached. The evidence against defendant was overwhelming. A substantial
amount of heroin and cocaine was found in defendant's car. Additional CDS
was found on his person. Heroin with a matching stamp was found on Chambers
shortly after Alexander saw him exchange currency with defendant and receive
items that appeared to be CDS. Large amounts of cash were found in defendant's
pockets and inside his vehicle.
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IV.
Defendant next argues that Detective Alexander's testimony violated
N.J.R.E. 403 and 404(b) because he testified that "a lot of narcotics sales" occur
in the area where defendant was apprehended and implicitly suggested that his
presence there suggested bad character and a propensity to sell drugs. During
trial, Alexander was asked by the prosecutor if he was "familiar with this area"
and the detective replied in the affirmative and explained:
Seaman Street is where a lot of narcotic sales are done,
street levels sales. A lot of people who come into town
know that if you need any type of narcotics, . . . the
places you come is Remsen, Seamen Street . . . .
....
If you go from Seaman Street -- the whole of Seaman
Street from Paul Robeson, all the way down to . . . Drift
Street, you could pretty much find any type of narcotics
you want. Our main narcotic sale areas for street level
where out-of-towners come is the area of Seaman and
Remsen, Seaman and Throop, Seaman and Lee, and
then once you cross over Livingston, there is a couple
of houses that are well known by locals, as well as out-
of-towners that this is the area to come to buy -- you
know, any type of street level narcotics that you need.
Because the defense did not object when this testimony was presented, we
review for plain error. R. 2:10–2. Defendant's argument rests on an alleged
violation of N.J.R.E. 404(b) and analogizes the facts to those in State v. Herbert,
A-2552-19
22
where a police officer testified that the homicide occurred in a "gang area" and
that the defendant was a gang member. 457 N.J. Super. 490, 499 (App. Div.
2019). In Herbert, we held that the testimony violated N.J.R.E. 404(b) because
it "conveyed the taint of criminality and propensity to commit crimes." Ibid.Under N.J.R.E. 401, relevant evidence is proof "having a tendency to
prove or disprove any fact of consequence to the determination of the action."
Here, the testimony that the neighborhood was a high-narcotics area was based
on the officer's personal observations, twelve years of experience, including
participation in numerous narcotics investigations, and surveillance of that area.
His testimony was relevant to provide background and context to explain his
presence at that location.
Under N.J.R.E. 403(a), relevant "evidence claimed to be unduly
prejudicial can be excluded only where its probative value 'is so significantly
outweighed by [its] inherently inflammatory potential as to have a probable
capacity to divert the minds of the jurors from a reasonable and fair evaluation'
of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999)
(quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Whether such evidence
is admissible is a decision within the trial judge's broad discretion. Id. at 568-
69.
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Defendant relies on a line of out-of-state cases as support for his
contention that police testimony about a "high crime area" or "high narcotics
area" was unduly prejudicial or constituted inadmissible propensity evidence.
We are unpersuaded. "[A]n officer's testimony, when relevant, about whether a
neighborhood is a 'high crime area'" is permissible lay testimony. McLean, 205
N.J. at 459 (citing Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div.
1978) (police officer who investigated more that seventy-five crimes in a
neighborhood over a three-year period may offer his opinion that the
neighborhood was a high crime area), aff'd, 82 N.J. 214 (1980)); see also State
v. Hyman, 451 N.J. Super. 429, 442 (2017) (same). This principal applies with
equal force to an officer's lay opinion based on personal observation and
knowledge that the location of the crime was a "high narcotics area." Testimony
that a location is a "high narcotics area" was not directly probative of whether
defendant himself engaged in any criminal activity but explained to the jury why
the officer was conducting surveillance in the area.
Defendant's reliance on N.J.R.E. 404(b) is misplaced. Rule 404(b) does
not forbid the testimony elicited from Alexander. Defendant did not object to
the instances when the prosecution had Alexander use a laser pointer on a map
of the area. This testimony provided context to why Alexander and his team
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were surveilling the area. The testimony was based on Alexander's personal
experience with narcotics investigations in the area. A foundation was laid that
Alexander had personal knowledge of the sale of narcotics around Seaman Street
and streets that intersected it, because of his extensive personal experience
investigating narcotics trafficking in that area. Those investigations and the
related surveillance revealed the area experienced high levels of narcotics sales.
Alexander's lay opinion was "rationally based on [his] perception" and assisted
the jury in understanding his testimony by providing context. N.J.R.E. 701; see
State v. Labrutto, 114 N.J. 187, 197-98 (1989) (explaining that it is well-
established that lay witnesses may offer an opinion on "matters of common
knowledge and observation"). By so testifying, Alexander did not invade the
province of the jury.
Moreover, the challenged testimony was accompanied by other relevant,
admissible evidence that demonstrated defendant possessed CDS with the intent
to distribute it, and sold CDS to Chambers. We discern no plain error.
V.
When defendant was approached by police on the date of his arrest, he
took off running and had to be caught and wrestled to the ground. Defendant
argues the court gave an inappropriate jury instruction that confused the
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concepts of resisting arrest by flight and flight as consciousness of guilt.
Defendant argues the court's improper instruction to the jury allowed them to
consider flight as proof of consciousness of guilt for all charges and was not
responsive to their question concerning the definition of flight. This issue was
not objected to below and is therefore reviewed for plain error.
When reviewing a jury instruction, "[t]he test to be applied . . . is whether
the charge as a whole is misleading, or sets forth accurately and fairly the
controlling principles of law." State v. Jackmon, 305 N.J. Super. 274, 299 (App.
Div. 1997) (alteration in original) (quoting State v. Sette, 259 N.J. Super. 156,
190-91 (App. Div. 1992)). A jury "charge must be read as a whole in
determining whether there was any error." State v. Torres, 183 N.J. 554, 564
(2005). Moreover, the effect of any error must be considered "in light 'of the
overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Plain error, in the context
of an allegedly improper jury charge, "requires demonstration of legal
impropriety of the charge prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the reviewing co urt and to
convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." Ibid. (quoting State v. Burns, 192 N.J. 312, 341 (2007)).
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We note that "evidence of flight or escape from custody by an accused
generally is admissible as demonstrating consciousness of guilt, and is therefore
regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). Flight
from the scene of a crime, if carried out with the purpose of avoiding
apprehension, prosecution, or arrest, is generally admissible to draw an
inference of guilt. Id. at 418-19. If the trial court deems evidence of flight
admissible, "it must instruct the jury carefully regarding the inferences the jury
may draw from that evidence." Id. at 420. In doing so, the court must "carefully
consider whether it is appropriate to charge flight, and, if so, must tailor the
charge to the facts of the case to prevent juror confusion." State v. Randolph,
441 N.J. Super. 533, 563-64 (App. Div. 2015).
Here, the uncontroverted evidence showed that defendant fled the scene,
left his car unattended, ignored commands by police to stop, and had to be
chased and brought to the ground to arrest him. While the court had earlier
indicated that it was not going to instruct the jury on flight as evidence of
consciousness of guilt, in searching for a definition of flight, it essentially did
exactly that.
The court properly exercised its discretion in using the flight charge to
define flight to the jury. The State presented evidence that the plain-clothes
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police officer wearing a badge "prominently" around his neck approached
defendant soon after his narcotics sale to Chambers. Defendant saw the officer
and immediately took off running. We also find the purported error to be
harmless. The court provided the model jury charge on flight as evidence of
consciousness of guilt. Despite the court's prior decision not to give that charge
because it was somehow "double counting," the instruction was appropriate
given the facts in this case. Moreover, defendant did not object to the instruction
and did not ask for a curative instruction. We discern no plain error.
VI.
In his supplemental brief, defendant argues that he was denied effective
assistance of counsel due to trial counsel's failure to challenge the seizure and
the pre-warrant impoundment of his vehicle. We decline to address defendant's
ineffective assistance counsel argument on direct appeal as that claim is better
suited to consideration in a post-conviction relief proceeding. See State v.
Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy
against entertaining ineffective-assistance-of-counsel claims on direct appeal
because such claims involve allegations and evidence that lie outside the trial
record."). Defendant may raise his ineffective assistance of counsel claims in a
timely filed petition for post-conviction relief under Rule 3:22.
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Defendant also argues that the State possessed exculpatory material which
should have been turned over to him in discovery pursuant to Brady v. Maryland,
373 U.S. 83 (1963). He notes that the State did not call Chambers, the alleged
buyer, as a witness. Defendant claims that "[i]n the absence of information
regarding the Detective's lack of candor, defendant had nothing to go on as far
as attacking his credibility." Defendant could have called Chambers as his
witness. He elected not to do so. Defendant was not barred from calling
Chambers as a witness because he was listed on the State's witness list.
Defendant's claim that the State possessed evidence which it did not turn
over to the defense is belied by the record and lacks sufficient merit to warrant
much discussion in a written opinion. R. 2:11-3(e)(2). Defense counsel signed
a discovery receipt for the materials that defendant claims he did not receive in
discovery. Those materials included thirty-two pages of documents, a CD-R,
two DVD-Rs, and a DVD+R DL. Defendant has not demonstrated that the State
failed to provide exculpatory evidence. We discern no Brady violation, much
less plain error.
VII.
Defendant argues the court erred in sentencing him to an extended term
because of alleged double counting. We review defendant's sentence for abuse
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of discretion. State v. Pierce, 188 N.J. 155, 166 (2006). We will affirm a
sentence
unless (1) the sentencing guidelines were violated; (2)
the aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
The sentencing court must examine the aggravating and mitigating factors
enumerated in N.J.S.A. 2C:44-1(a) and (b). Each factor found by the court must
be relevant and supported by "competent, reasonably credible evidence." Id. at
72 (quoting Roth, 95 N.J. at 363). The court then must conduct a qualitative
balancing of the factors to determine the appropriate sentence. Id. at 72-73.
Defendant argues the court erred by double-counting defendant's prior
drug convictions as both a basis for a mandatory extended term and in support
of applying statutory aggravating factors used to determine the length of his
prison terms. Defendant does not dispute that the court correctly imposed a
mandatory extended term on count nine pursuant to N.J.S.A. 2C:43-6(f), based
on his two prior convictions for distribution of CDS in a school zone.
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The court found defendant had a lengthy criminal record which dated back
to 2006. He incurred five delinquency adjudications as a juvenile, including two
violations of probation and one violation of intensive supervision, six municipal
court convictions, four indictable convictions, and five violations of parole. The
judge also noted that defendant had received the benefit of Recovery Court and
multiple probationary terms, which he repeatedly violated, and regularly
committed new crimes soon after he was released from prison.
The judge gave great weight to aggravating factor three because "clearly
any sentence imposed on the defendant has done nothing to dissuade him from
criminal activity[.]" The judge also gave great weight to aggravating factors six
and nine based on his prior record, the seriousness of the offenses for which he
was convicted, and because none of the probationary sentences or terms of
incarceration had any effect on him. The judge did not find any mitigating
factors and was clearly convinced that the aggravating factors substantially
outweighed the non-existent mitigating factors.
Judges must "avoid 'double counting' circumstances that the Legislature
has already incorporated as an element of the offense," such as "[e]lements of a
crime, including those that establish its grade." State v. Lawless, 214 N.J. 594,
608 (2013). However, a judge does not impermissibly double count when they
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consider a defendant's prior criminal history for multiple aggravating and
mitigating factors. State v. Tillery, 238 N.J. 293, 328 (2019). Thus, a judge is
not "required to ignore the extent of [a defendant's] criminal history when
considering applicable aggravating factors." State v. McDuffie, 450 N.J. Super.
554, 577 (App. Div. 2017). Judges may also consider a defendant's
"uninterrupted history of criminality" in their determination of whether
aggravating factor six is applicable. State v. Dalziel, 182 N.J. 494, 502 (2005).
Judges may also consider a defendant's juvenile and municipal court records.
State v. Taylor, 226 N.J. Super. 441, 453-54 (App. Div. 1988).
Defendant claims the court impermissibly double-counted his criminal
record when it considered two prior convictions as both a predicate offense for
purposes of the persistent offender extended term statute, N.J.S.A. 2C:44 -3(a),
and as a basis for finding an aggravating factor under N.J.S.A. 2C:44-1(a). We
agree that such double-counting is impermissible. State v. Vasquez, 374 N.J.
Super. 252, 267 (App. Div. 2005). In Vasquez, we determined the sentencing
judge erred in "rais[ing] the presumptive extended base term on account of
defendant's only prior conviction, the very conviction which both allowed and
required an extended term." Ibid. We concluded doing so was a form of
impermissible double-counting. Ibid. A sentencing court should not use the
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same prior conviction as a predicate offense under N.J.S.A. 2C:44-3(a), and to
determine the appropriate length of the term within the extended range.
On the other hand, a sentencing court is permitted to consider a
defendant's other prior convictions when applying and weighing aggravating
factor six. Unlike in Vasquez, defendant's two predicate convictions for
distribution of CDS in a school zone were not his only prior indictable
convictions. In May 2009, defendant was convicted of fourth-degree unlawful
taking of a motor vehicle, N.J.S.A. 2C:20-10(b). In June 2009, defendant was
convicted of third-degree receiving stolen property, N.J.S.A. 2C:20-7. The
court properly considered defendant's prior joyriding and receiving stolen
property convictions in setting the length of the term imposed on count nine. To
that extent, the court did not impermissibly double-count.
The court properly considered defendant's extensive juvenile record,
which included four adjudications of juvenile delinquency, two violations of
probation, and violation of intensive supervised release. The court likewise
properly considered defendant's extensive municipal court record, which
included six convictions.
In addition, all of defendant's prior convictions, including the two
predicate offenses, were properly considered in applying and weighing
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aggravating factor six in setting the length of the terms and any period of parole
ineligibility on counts four, seven, eleven, and twelve.
Substantial credible evidence in the record amply supports the application
of aggravating factors three, six, and nine and the finding that the aggravating
factors substantially outweighed the non-existent mitigating factors on counts
four, seven, eleven, and twelve. We discern no basis to disturb defendant's
sentence on those counts.
We reach a different result as to count nine. The court considered
defendant's four prior indictable convictions when imposing a fourteen-year
term with seven years of parole ineligibility. This presumably impacted the
length of the term and period of parole ineligibility defendant received. Because
the court improperly considered the two predicate offense convictions, we
vacate the sentence on count nine and remand for resentencing on that count.
On remand, the court shall not consider defendant's 2011 and 2012 convictions
of possession of CDS in a school zone when setting the length of the term and
any period of parole ineligibility. In so ruling, we express no opinion on the
appropriate length of the sentence on count nine.
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Affirmed in part, vacated in part, and remanded for resentencing on count
nine. We do not retain jurisdiction.
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