SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2686-06T4

 

 

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

HAMID A. SHABAZZ,

 

Defendant-Appellant.

______________________________

 

Submitted February 2, 2009 – Decided

 

Before Judges Carchman and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0638.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

 

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Following a jury trial, defendant Hamid A. Shabazz was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and b(3); and two counts of third-degree distribution of controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.¹ The trial judge sentenced defendant to two concurrent five-year terms in prison with a three-year parole disqualifier, as well as statutory penalties, fines and license suspension. Defendant appeals, and we now affirm.

These are the facts adduced at trial. On February 25, 2005, at 11:00 a.m., Sergeant Samuel Rivera, a thirteen-year veteran of the Passaic Police Department, was performing a narcotics surveillance operation in the area of 49 Pine Street, a location within 1,000 feet of Public School No. 7 in Passaic. The operation itself was divided into two teams, the surveillance officer and the backup team, which would stop and detain any suspects involved in a narcotics transaction observed by Sergeant Rivera. During the operation, Sergeant Rivera was performing the surveillance while Detectives Juan Clavijo, Tamika Santiago, Reynaldo Arroyo, Larson, LeConte and Cassiano² were acting as backup. Sergeant Rivera had been in that area since 6:00 a.m. and was situated twenty or twenty-five feet away from 49 Pine Street.

During his surveillance, Sergeant Rivera observed Anthony Haskins near the porch of 49 Pine Street and also observed defendant in the alley between 53 and 55 Pine Street. At approximately 11:00 a.m. a third individual, Michael Dennis, approached the area wearing a blue knit cap, a winter vest-type jacket and blue jeans. Dennis had a brief conversation with Haskins in front of 49 Pine Street. Haskins then proceeded to walk into the area between 53 and 55 Pine Street, while Dennis waited on the porch. As Haskins walked towards the alley, he yelled out to defendant, who was in the back of the alley, and “motioned as if making hand signals of 10.” Defendant went behind 55 Pine Street for a few moments and then came back and met Haskins in the center of the alley. Defendant handed Haskins “an item,” which, Sergeant Rivera observed, Haskins took in his right hand. Haskins then walked from the alley back to 49 Pine Street where he handed the item to Dennis. Dennis then handed Haskins what appeared to be United States currency, and Dennis left the area. Haskins went back to the alley and gave defendant the money. Defendant remained in the alley while Haskins returned to the porch at 49 Pine Street.

As Dennis left the area, Sergeant Rivera, based on eight years of experience and observing over 1,000 hand-to-hand street-level drug interactions, concluded that he had observed a drug transaction. He relayed a description of Dennis and Dennis’ current route of travel over the police radio.

After Dennis left the area, another individual, Robert Ellis, emerged from a black Cadillac parked near the front of 49 Pine Street and began talking to Haskins who was sitting on the porch. Haskins returned to the alley and called defendant. They had a brief conversation resulting in Haskins bringing Ellis to defendant, and defendant and Ellis proceeding to the rear of 55 Pine Street. A moment later, Ellis returned “looking a[t] something in his hand”; he entered his vehicle and left the area. Sergeant Rivera then advised his backup team to detain the black Cadillac.

Once the backup team had detained both Dennis, Ellis and the black Cadillac, Sergeant Rivera advised the team to detain Haskins, who was still at 49 Pine Street, and defendant who was in front of 55 Pine Street. Haskins and defendant were then transported to police headquarters.

Detective Clavijo took part in Dennis’s arrest based upon the information received from Sergeant Rivera. Detective Clavijo stated the information he and his partner, Detective Santiago, received from Sergeant Rivera was that “the black male wearing the blue knit cap, the blue vest and blue jean pants was heading south, actually running south, on Pine Street towards Autumn Street.” Once Detective Clavijo saw the individual who met the description, he followed the individual down Pine Street and stopped him at 537 McKinley Street.

Upon arriving at the McKinley Street property, Detective Santiago, spoke to Dennis by talking to him from the window of their vehicle. Both detectives exited the vehicle in plain clothes, and Detective Clavijo, who was wearing his badge around his neck, stated in a loud voice, “[s]top, police.” Dennis stopped and then stated he had crack cocaine in his right front pants pocket. Detective Clavijo retrieved the suspected crack cocaine, secured it and placed Dennis under arrest. Detective Clavijo and Detective Arroyo, who with Detective Larson, had stopped the Ellis vehicle, then went to Pine Street and based on Rivera’s description, placed Haskins and defendant under arrest. No additional narcotics were recovered.

At headquarters, Dennis, Ellis, Haskins and defendant were searched. No drugs were found on Haskins and defendant, only money. Most notably, defendant was carrying $568.00, but no narcotics were found on him. No narcotics were found in the rear of 55 Pine Street either. At headquarters, members of the backup team gave Sergeant Rivera the substances that the buyers allegedly purchased from Haskins and defendant. Sergeant Rivera visually identified the substance as crack cocaine, which, upon subsequent testing, was confirmed as cocaine.

At trial, Ellis stated that he went to Pine Street, got out of his car, saw someone that he knew and asked him where he could buy “$20 worth of base.” He identified Haskins as the “someone” who directed him to the seller and identified defendant as the seller. Ellis described that after he went to the back of the premises, he met defendant, gave him money, received the crack cocaine and then drove away only to be pulled over by the police. Ellis had some cocaine on his front seat and a dollar bill wrapped around cocaine in his sock along with a pipe as well as aluminum foil. The cocaine in the aluminum foil came from the Pine Street transaction. Ellis admitted at trial that he pled guilty to the charge of possession of a controlled dangerous substance in exchange for testifying for the State at this trial.

On appeal, defendant raises the following issues:

POINT I: TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL IN VIOLATION OF R. 3:18-1.

 

POINT II: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO GIVE AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, FORECLOSING ANY POSSIBILITY THAT DEFENDANT COULD BE FOUND NOT GUILTY.

 

POINT III: THE TRIAL COURT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED DEFENDANT TO AN UNREASONABLE TERM OF YEARS.

 

 

Defendant urges that he was entitled to a judgment of acquittal at the end of the State’s case. In denying the motion to dismiss, the judge commented:

The broad test for the [de]termination of an application of this kind by the Defense is whether the evidence at this point is sufficient to warrant a conviction of the charge involved pursuant to rule — court rule 3:18-1.

 

More specifically, the question the trial Judge must determine 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 guilt on the charge beyond a reasonable doubt.

 

Of course that’s State vs. Reyes, [50 N.J. 454, 458-59 (1967)]. And there is –this is a circumstantial case. The Jury could, if they accept the credibility of the testimony, find that the officer observed transactions, exchange of currency for an item too small to be identified. That the person who allegedly received the small item in exchange for paper currency was stopped thereafter and was found to have crack cocaine on his possession. In fact one of the purchasers testified to having purchased the cocaine consistent with the way the officer says the transaction went, verifying that.

 

So based on the circumstantial evidence in the case, I’m satisfied that pursuant to Reyes, the State is entitled to have the case go forward. The motions for Judgment of Acquittal are denied. A Jury could reasonably find from all the evidence in the case that the Defendants were involved in the distribution of crack cocaine and certainly could find there was — there is a basis for accomplice liability by reason — or purposely promoting or facilitating the distribution of cocaine by aiding or assisting in that process by directing buyers to the — supplied.

 

A court shall enter an order for a judgment of acquittal only “if the evidence is insufficient to warrant a conviction.” R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State’s case is set forth in State v. Reyes, 50 N.J. 454 (1967):

[T]he question the trial judge must determine 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 guilt of the charge beyond a reasonable doubt.

 

[Reyes, supra, 50 N.J. at 458-59.]

 

Under Rule 3:18-1, the trial court “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. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). See also State v. Spivey, 179 N.J. 229, 236 (2004). “An appellate court will apply the same standard as the trial court to decide if a judgment of acquittal was warranted.” State v. Harris, 384 N.J. Super. 29, 52 (App. Div.) (stating “we must view the State’s evidence, in its entirety and giv[e] the State the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute”) (internal quotations omitted), certif. denied, 188 N.J. 357 (2006); State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (“The trial judge must consider only the existence of such evidence, not its ‘worth, nature, or extent.'”) (quoting Kluber, supra, 130 N.J. Super. at 342). “If the evidence satisfies that standard, the motion must be denied.” State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006).

We are satisfied that reviewing the evidence in its totality, the State met its burden, and the judge correctly denied the motion. Defendant, in his brief, parses the testimony and events focusing on, for example, the exchange of money as not forming the basis of criminal conduct sufficient to survive a motion. Here, the officers engaged in a methodical piecing together of facts including the exchange of currency for “objects” coupled with later arrest and apprehension of drugs from a purchaser who ultimately identified defendant as the seller. While each element might not survive, the totality of the described events clearly meets the State’s burden. We find no merit in this claim.

We reach the same result regarding the accomplice charge. We first note that there was no objection to the charge, and we must determine whether, if erroneous, the alleged defective charge was “clearly capable of producing an unjust result.” R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008).

Here, the judge followed the Model Jury Charge, a practice sanctioned by our Supreme Court. State v. R.B., 183 N.J. 308, 325 (2008) (noting that “insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury”). The judge provided the requisite definitions in the context of the entire charge, and we perceive no basis for our intervention.

Finally, we conclude that defendant’s sentence was appropriate. The judge’s conclusion that defendant did not establish mitigating factors is well-supported by the record.

Affirm.

April 8, 2009