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Tuesday, July 31, 2012

State v. Williams

DOCKET NO. A-6103-09T4





July 12, 2012

Submitted June 20, 2012 – Decided

Before Judges A. A. Rodríguez and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-01-00116.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Following a jury trial, defendant, Quadir Williams, was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and 2C:35-5a; and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). After appropriate merger of the possessory offenses, Judge Ernest M. Caposela granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and imposed a ten-year term with a five-year parole disqualifier. The judge also imposed a concurrent eighteen-month term on the resisting arrest conviction.
Only one witness testified, City of Paterson Police Department Officer Edwin Morillo. He was called by the State as a fact witness. According to Morillo, on August 8, 2008, at 11:00 a.m., he and his partner Sal Macolino were investigating in plain clothes and driving an unmarked police vehicle. The focus of their investigation was a 249-unit apartment building on East 19th Street. After several minutes, Morillo and his partner saw two men, subsequently identified as defendant and co-defendant, Gyasi Allen, exiting the apartment building. Defendant and Allen walked up and down the street for ten to twenty minutes, then they crossed the street and paced back and forth along a fence bordering an empty parking lot. Defendant and Allen looked down at the ground. Defendant bent down and picked up a small black plastic bag. While defendant was holding the black bag in his hand, he and Allen walked to an empty adjacent building. Defendant placed the black bag beneath a fence at the corner of the vacant structure.
Suspecting criminal activity, Morillo and Macolino went to the back of the apartment building, just in case defendant and Allen ran inside. The officers went out the front of the apartment building. Defendant and Allen remained standing in front of the building. The plastic bag was six to eight feet away from them. The officers casually exited, with their police badges around their necks and holding police radios. Defendant and Allen saw them and ran away in different directions.
Morillo chased defendant, shouting at him to stop. Defendant continued running. Defendant reached into his pocket, took items out, and threw them on the ground as he ran. Morillo saw that one of the items was a small white object. Morillo tackled defendant and subdued him. As he took defendant to a police vehicle, Morillo retraced the path of the chase and recovered the items defendant had thrown on the ground, i.e., money and a deck of heroin containing eight glassine envelopes.
Following a search of defendant, Morillo found $7,695 in his possession. Morillo returned to the apartment building to meet Macolino, then went to the fence where defendant had been seen placing the black bag. The officer retrieved the bag there, which contained fifty-three glassine envelopes of heroin.1 Defendant and Allen were arrested and later indicted. Defendant was tried by himself. He presented a defense but no witnesses.
On cross-examination, defense counsel asked Morillo several questions regarding knowledge about the process of selling illicit narcotics. These questions asked Morillo to draw upon his expertise as a police officer. The following exchange is illustrative. Defense counsel cross-examined Morillo on his expertise about scenarios that the officer had encountered with respect to street sales of narcotics:
[DEFENSE COUNSEL]: At other times, you have seen situations where it's like an open bazaar. Cars are pulling up, people are running out to the street, they're talking – the – the guy on the street talking to the – to the driver or passenger of the car, correct?

[MORILLO]: It – in – every case is different – every case is different and –

Q. I'm – I'm trying to draw on your nine years of experience –

A. Yes.

Q. -- so that we can perhaps tell this jury what it is that you look for when you are conducting a surveillance.

A. Sure.

Q. So, on other occasions in this very location you have seen cars pulling up and people that you suspect to be drug dealers going up and actually servicing the car, correct?

A. Yes.

Q. It's like – it's like – it's almost like the drive-in, right?

A. Pretty much so, yes.

Q. You know like a bellhop.

A. That's right. Yes, sir.

Q. Okay. They come out. They come right up to the car. The person in the car gives them money, the person on the street gives him drugs, correct?

A. Yes.

Q. It's a very quick transaction, correct?

A. Yes.

Q. It's one that to the untrained eye it just might be a dude on the street talking to a person in a car, correct?

A. Yes, sir.

Q. But to your trained eye it is something that you look at and you say whoa, drug deal just happened. Yes?

A. Not specifically. It's other characteristics, other conducts that we look at.

Q. Okay.

A. So, it's not just doing that. It's all these things –

Q. You also at times look for people that are on the street that are openly flagging people down, hailing, or – a while back they used to yell, "Yo – Yo" right?

A. They – they still use it.
Over defense counsel's objection, the judge ruled that such questions opened the door for the State to question Morillo regarding general characteristics of drug dealers based on his expertise.
On appeal, defendant contends:

Specifically, defendant argues that his cross-examination of Morillo did not warrant the State to elicit expert testimony on re-direct, and such expert testimony "was improper because its subject matter was not beyond the ken of an average juror." We are not persuaded.
Clearly, during cross-examination, defense counsel was not asking Morillo to testify about facts, i.e., events that he observed or things that he heard, or anything perceived with the human senses. Rather, he asked the witness to interpret his observations in this case, based on the officer's experience as a narcotics police officer. In short, defense counsel turned a fact witness into an expert witness for purposes of cross-examination. Having done so, defense counsel cannot complain when the Assistant Prosecutor also asks questions of Morillo, which draw upon the officer's experience as well as his sensory perceptions. We note that on direct examination, the Assistant Prosecutor asked only fact questions. We perceive no basis for a reversal.
Pursuant to N.J.R.E. 702, a person who possesses "knowledge, skill, experience training or education" may qualify as an expert and give expert testimony, if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue." See State v. Reeds, 197 N.J. 280, 291 (2009). Here, an adverse party asked Morillo expert testimony questions regarding his investigation. This is permissible. "The average juror does not understand how drug operations are conducted on the streets." State v. Cannon, 271 N.J. Super. 391, 396 (App. Div. 1994).
Defense counsel was seeking to impeach Morillo's credibility with the officer's special knowledge and training. Therefore, defendant cannot now complain that Morillo's expert testimony was inadmissible. Defendant sought such testimony, thus waiving any objection to admissibility.
Subsequent questions to Morillo by the Assistant Prosecutor covered the same areas as the cross-examination. The State did not seek new, substantive expert testimony from Morillo.
Defendant also contends that:

We disagree.
Defendant was twenty-seven-years old at the time sentence was imposed. He has a history of six indictable and two disorderly persons convictions, and seven juvenile delinquency adjudications. Defendant has served custodial terms as a juvenile and as an adult.
The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that the defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; (9) the need for deterring the defendant and others from violating the law.
The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (11) the imprisonment of the defendant would entail excessive hardship to himself or his dependents.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v.Johnson42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v.O'Donnell117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth95 N.J. 334, 364-65 (1984).
1 At trial, the parties stipulated to the admission of the State Police laboratory results for chemical analysis of the glassine bags. The substance in the bag was .36 grams of heroin.