NOT FOR PUBLICATION WITHOUT THE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-4710-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEWAYNE R. ANDERSON,
a/k/a WAYNE R. ANDERSON,
Defendant-Appellant.
____________________________
Submitted March 7, 2019 – Decided April 24, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 11-06-0570.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jay L. Wilensky, Assistant Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Daniel Opatut, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
After the trial court denied his motion to suppress evidence seized during
a warrantless search of his residence, defendant Dewayne R. Anderson was
found guilty of all counts listed against him in the indictment. Defendant was
charged with: possession of a controlled dangerous substance ("CDS"), third -
degree, N.J.S.A. 2C:35-10(a)(1) (Count I); possession of CDS with intent to
distribute, third-degree, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3)
(Count II); possession of CDS with intent to distribute in a school zone, third -
degree, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3)
(Count III); possession of CDS with intent to distribute, third-degree, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (Count IV); possession of CDS with
intent to distribute in a school zone, third-degree, N.J.S.A. 2C:35-7, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (Count V); possession of a firearm
while committing a CDS offense, second-degree, N.J.S.A. 2C:39-4.1(a) (Count
VI); receiving stolen property, third-degree, N.J.S.A. 2C:20-7(a) (Count VII);
maintaining a narcotics nuisance, fourth-degree, N.J.S.A. 24:21-21(a)(6) (Count
XI); and certain persons not to have weapons, second-degree, N.J.S.A. 2C:39-
7(b) (Count XII). He was given an extended term sentence of eighteen years
subject to nine years of parole ineligibility, and appropriate fines and penalties.
This appeal followed.
A-4710-16T3
2
On appeal, defendant raises the following contentions:
POINT I
THE WARRANTLESS SEARCH RESULTING IN
THE DISCOVERY OF THE CONTRABAND DOES
NOT FALL WITHIN ANY RECOGNIZED
EXCEPTION TO THE WARRANT REQUIREMENT,
NECESSITATING REVERSAL. [U.S. CONST.,
AMENDS. IV, XIV; N.J. CONST., ART.1, [¶] 7].
A. The officer was not lawfully in the hallway.
B. The State did not carry its burden of
demonstrating that the contraband was in plain
view.
POINT II
THE TRIAL COURT ERRED TO DEFENDANT'S
PREJUDICE IN ALLOWING LAY TESTIMONY
CONCERNING THE LABORATORY
CERTIFICATE. (Not raised below).
POINT III
THE TRIAL COURT IMPOSED AN EXCESSIVE
SENTENCE, NECESSITATING REDUCTION.
Based upon our review of the record and applicable law, we conclude that
the search of defendant's residence was constitutional, the laboratory certificate
was properly admitted into evidence, and the trial court imposed an appropriate
sentence. We affirm.
A-4710-16T3
3
I.
The State developed the following proofs at the April 12, 2013
suppression hearing. Trenton detectives Charles Steever and Jason Astbury
were conducting surveillance on January 30, 2011, at 1:00 a.m. and observed
defendant and his sister, co-defendant Tina Anderson, sitting on the front porch
of their row house, comprised of two apartments with a common hallway. 1
After observing numerous individuals conversing with defendant and Anderson
and entering and exiting the home, which was situated in a reputed high drug
trafficking area, the detectives surmised that narcotics were being sold even
though no exchange of drugs or money was observed. The detectives drove up
to the front of the building, Anderson saw them, and she immediately turned
around and threw an object into the building that landed on the floor outside of
the common hallway. The front door was "completely open." After detaining
Anderson, Detective Steever entered the common hallway of the building, and
observed a set of keys on the floor and defendant running away from the
basement door at the end of the hallway and attempting to enter the first floor
apartment, which was adjacent to the basement doorway. Steever peered
through the open basement door from the top of the stairwell and, using his
1
Regrettably, Anderson passed away prior to trial.
A-4710-16T3
4
flashlight, saw a 9mm silver handgun; a quantity of suspected CDS crack
cocaine in Ziploc bags; two socks containing marijuana; two digital scales; $309
in cash; packaging material; and drug paraphernalia. The handgun was unloaded
by Steever for safety reasons and defendant and Anderson were placed under
arrest.
Detective Steever was the State's only fact witness at the suppression
hearing and at trial. He testified that defendant's residence was known to him
from previous investigations and described it as a "row house" divided into two
apartments, sharing a common hallway, with a stairwell leading up to the second
floor apartment. On the day in question, January 30, 2011, Steever observed
defendant coming "through the open basement door into the common hallway."
In addition to "operational street lights outside" lighting up the common
hallway, the detective illuminated the basement area using his flashlight and saw
the narcotics, the "Taurus handgun" loaded with "fourteen live rounds," and
other items. On direct examination, Detective Steever verified that the door at
the front of the building was "unlocked" and on the "three or four" occasions he
had been there previously, "normally that door was left open." The apartment
doors were locked on the date in question.
A-4710-16T3
5
On May 16, 2013, the motion judge granted defendant's suppression
motion finding that although the detectives were lawfully on the premises and
"had an objectively reasonable and articulable suspicion to conduct a Terry2
stop," they were not properly in the viewing area, thereby making the protective
sweep unreasonable.
The motion judge held initially that:
In this case, there was no testimony to confirm or
deny either of the defendants['] relationship to 180
Walnut Avenue other than the facts presented. The
[c]ourt finds that the [co-]defendant, Tina Anderson,
was in constructive possession of a set of keys that were
discovered to access the front door and first floor
apartment. Therefore, the [c]ourt can reasonably infer
that [she] was a tenant of the property and [defendant]
had a similar interest to [her] or was an invitee on
January 30[], 2011, based upon his attempted access to
the first floor apartment.
[Detective] Steever testified that the front door to
the multifamily dwelling was open at the time he
entered. He further testified that he entered 180 Walnut
Avenue during previous investigations and at all times
the door remained unlocked. Consistent with the
court's holding in Nash,[3] anyone could gain access to
the front door and the common hallway of this
multifamily dwelling. Accordingly, this [c]ourt finds
that the defendants did not have a reasonable
expectation of privacy in the common hallway of 180
2
Terry v. Ohio, 392 U.S. 1 (1968).
3
State v. Nash, 74 N.J. Super. 510, 514 (Law Div. 1962).
A-4710-16T3
6
Walnut Avenue and, therefore, [Detective] Steever and
[Detective] Astbury properly entered the residence to
conduct an investigation.
[Detective] Steever testified that upon arrival at
180 Walnut Avenue, [Anderson] was detained on the
front porch while he located the item that she discarded.
He testified that while he found the item to be a set of
keys, he observed [defendant] enter the common
hallway from the basement area of the dwelling,
attempting to access the first floor apartment.
[Detective] Steever testified that both he and
[Detective] Astbury told [defendant] to show his hands.
He then placed his hands on the wall. The officers
patted him down without incident or locating any
contraband. See State v. Smith, 155 N.J. 83, 91
(19[9]8), State v. Thomas, 110 N.J. 673 (1988) and
State v. Walker, 282 N.J. Super. 11[1] (App. Div.
1995), holding that reasonable suspicion that defendant
was engaged in wrongdoing, such as being in
possession of illegal drugs, did not provide a reasonable
basis for the belief that he might be armed or dangerous.
After [defendant] was frisked, [Detective]
Steever testified that he believed a sweep was necessary
for officer safety. The [c]ourt notes that [Detective]
Steever testified that neither [Anderson] nor
[defendant] were arrested nor were armed at this
juncture in the police investigation. Furthermore, there
was no testimony that either of the [detectives]
observed any other individuals, either entering the
premises or outside the premises being armed.
A-4710-16T3
7
[Detective] Steever also testified that additional
TAC officers were present on scene at the time the
sweep was performed. 4
In State v. Davila, 203 N.J. 97 (2010), the New
Jersey Supreme Court held, that while it's not necessary
to conduct a protective sweep incident to arrest, to
permit a protective sweep whenever officers are
lawfully within the premises without limitations, risks
swallowing whole the statutory aims of requiring an
advance warrant to search. A protective sweep may
only occur when (1) police officers are lawfully within
private premises for a legitimate purpose which may
include consent to enter and (2) the officers on scene
have a reasonable, articulable suspicion that the area to
be swept harbors an individual posing a danger. Where
those substantive conditions are met, the sweep will be
upheld only if it is (1) conducted quickly and (2) it is
restricted to places or areas where the person posing a
danger would hide.
When an arrest is not the basis for officer entry,
the legitimacy of the police presence must be carefully
examined, as well as the asserted reasons for the
protective sweep. The police cannot create the danger
that becomes the basis for a protective sweep but,
rather, must be able to point to dangerous
circumstances that developed once the officers were at
the scene. That's [Davila, 203 N.J. at 102-03].
This [c]ourt finds that while the [detectives] were
lawfully in the premises at the time of the sweep, the
reasons for conducting the sweep were pretextual. The
[c]ourt finds that the [detectives] did not have a
4
TAC refers to the Trenton Police Department's Tactical Anti-Crime Unit,
which is no longer in existence.
A-4710-16T3
8
reasonable, articulable suspicion that the area to be
swept harbored an individual posing a danger. There
was nothing leading up to the sweep to lead the
[detectives] to believe that someone on the premises
was armed and dangerous. [Detectives] observed what
appeared to be a narcotics transaction without any
evidence that anyone was armed.
The State filed a motion for reconsideration arguing that the plain view
exception should have been presented here. 5 The motion judge reversed himself,
granted the State's motion for reconsideration, and denied defendant's
suppression motion on the grounds that he did not have an expectation of privacy
in the common hallway and the evidence was observed in plain view by the
detectives.
The motion judge held:
The State set forth portions of [Detective]
Steever's testimony by way of motion here and
transcript which it believes the [c]ourt inadvertently
overlooked. According to the State, this testimony
demonstrates that [Detective] Steever observed the
recovered contraband in plain view while he was
lawfully in the common hallway of 180 Walnut
Avenue. Neither of the defendants has submitted a
reply brief opposing the State's arguments.
5
In State v. Puryear, 441 N.J. Super. 280, 293 (App. Div. 2015), we held that
"[t]he court has the discretion and right to reconsider an interlocutory ruling at
any time before the entry of final judgment in 'the sound discretion of the []
court to be exercised in the interests of justice.'" 441 N.J. Super. 280, 293 (App.
Div. 2015) (alteration in original) (quoting State v. Timmendequas, 161 N.J.
515, 554 (1999)).
A-4710-16T3
9
To prove plain view, the State must show: One,
that the officer was lawfully in the viewing area; two,
the discovery of the evidence was inadvertent, meaning
the officer did not know in advance where the evidence
was located, nor intend beforehand to seize it; and
three, the officer must have probable cause to associate
the property with criminal activity. State v. Mann, 203
N.J. 328, [338, 339] (2010); State v. Lane, 393 N.J.
Super. 132[, 144] ([App. Div.] 2007).
The State argues that [Detective] Steever
lawfully viewed the items using a flashlight to
illuminate the open doorway of the basement stairwell
while he was standing in the common hallway of 180
Walnut Avenue. Although [Detective] Steever
originally testified that he discovered the evidence
while performing a protective sweep for officer safety,
upon further questioning by the State, [Detective]
Steever stated he was able to observe the evidence by
using a flashlight from "the top area before proceeding
down the steps." . . . .
As the State argues, it is well[-]settled that the
use of artificial light to illuminate [a] dark area does not
constitute a search pursuant to the Fourth Amendment.
See Texas v. Brown, 460 U.S. 7[3]0 ([1]983) holding
that illuminating the interior of a vehicle with a
flashlight does not constitute a search. See also State
v. Reininger, 430 N.J. Super. 517 ([App. Div.] 2013).
This [c]ourt previously held that the [detectives]
were lawfully in a common hallway of 180 Walnut
Street in accordance with [Nash, 74 N.J. Super. at 514].
Our courts have held that when officers observe
evidence from a common hallway of an apartment
building, their vantage point is permissible. State v.
A-4710-16T3
10
Smith, 37 N.J. 481[,] 496 (1962); see also State v.
Cleveland, 371 N.J. [Super.] 286, [301] ([App. Div.]
2004) . . . that observation from a common hallway into
an open motel room is permissible.
Based upon a review of his testimony, the [c]ourt
finds that [Detective] Steever's initial observations
were made while he was lawfully in the viewing area of
the common hallway.
Next, [Detective] Steever's discovery of the
evidence was inadvertent. Although [Detective]
Steever observed the defendants engage in suspected
narcotics transactions before entering the residence, he
did not have advance knowledge about any location of
any of the evidence. [Detective] Steever testified that
he observed this evidence after he shined a flashlight
down the stairway of an open basement door . . . .
While [Detective] Steever had reason to believe
that there was illegal contraband in the residence
because he observed the defendants engage in
suspected narcotics transactions before entering 180
Walnut Avenue, he did not have advance knowledge
about the location of any of the residents, and the
[c]ourt finds that the inadvertent prong is met because
it is not being used as a pretext to assert plain view. See
State v. Damplias, 282 N.J. Super. 471[, 478] (1995).
Finally, [Detective] Steever had probable cause
to seize the gun because it was illegal in nature as it was
immediately apparent. In accordance with N.J.S.A.
2C:58-4[(a)], [a] permit is required to carry a handgun.
In addition, [Detective] Steever had probable
cause to seize the quantity of suspected CDS crack
cocaine in plastic bags, socks containing CDS
marijuana, two digital scales and $309. The suspected
A-4710-16T3
11
CDS crack and marijuana are illegal narcotics pursuant
to N.J.S.A. 2C:35-10, et seq.
The illegal nature of the scales and money was
also immediately apparent based upon [Detective]
Steever's training and experience as items used in
illegal drug activity.
Based on the foregoing, the [c]ourt amends its
previous conclusion based on [Detective] Steever's
testimony that was previously overlooked. Although
[Detective] Steever subsequently engaged in an
unwarranted protective sweep of the premises, his
testimony confirms that he initially viewed the
evidence in plain view while he was lawfully standing
in the common hallway of 180 Walnut Avenue.
Accordingly, the [c]ourt's initial opinion is
amended to reflect this new conclusion. The
defendant's motion to suppress is denied.
II.
Our review of the denial of a suppression motion is limited. State v.
Handy, 206 N.J. 39, 44-45 (2011). In reviewing a trial judge's ruling on a motion
to suppress, "an appellate court . . . must uphold the factual findings underlying
the trial court's decision so long as those findings are 'supported by sufficient
credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007)
(quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). This court
"should not disturb the trial court's findings merely because 'it might have
reached a different conclusion were it the trial tribunal' or because 'the trial court
A-4710-16T3
12
decided all evidence or inference conflicts in favor of one side' in a close case."
Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Issues of law,
however, are reviewed de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
Defendant first argues that the warrantless search resulting in the
discovery of the contraband does not fall within any recognized exception to the
warrant requirement, necessitating reversal. We disagree.
"Warrantless seizures and searches are presumptively invalid as contrary
to the United States and the New Jersey Constitutions. Both constitutional
standards require that such seizures or searches be conducted pursuant to a
warrant issued upon a showing of probable cause." State v. Pineiro, 181 N.J.
13, 19 (2004) (citations omitted). "Because our constitutional
jurisprudence evinces a strong preference for judicially issued warrants, the
State bears the burden of proving by a preponderance of the evidence that a
warrantless search or seizure [into a dwelling] 'falls within one of the few well-
delineated exceptions to the warrant requirement.'" Elders, 192 N.J. at 246
(quoting Pineiro, 181 N.J. at 19-20).
"[A] 'protective sweep' is a quick and limited search of premises, incident to
an arrest and conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a person
A-4710-16T3
13
might be hiding." Davila, 203 N.J. at 113 (quoting Maryland v. Buie, 494 U.S. 325,
327 (1990)). "A protective sweep may only occur when (1) police officers are
lawfully within private premises for a legitimate purpose, which may include
consent to enter; and (2) the officers on the scene have a reasonable articulable
suspicion that the area to be swept harbors an individual posing a danger." Id. at
102. Such reasonable articulable suspicion may stem from multiple factors such as
the suspect's presence in a high-crime or narcotics-heavy area, See Illinois v.
Wardlow, 528 U.S. 119, 124 (2000); State v. Moore, 181 N.J. 40, 45-47 (2004), or
the suspect's furtive or suspicious movements when confronted by the police, see
State v. Lund, 119 N.J. 35, 48 (1990).
Davila further instructs that:
when an arrest is not the basis for officer entry, the
legitimacy of the police presence must be carefully
examined as well as the asserted reasons for the
protective sweep. Enhanced precautions are necessary
to stem the possibility that a protective sweep is nothing
more than an unconstitutional warrantless search. The
police cannot create the danger that becomes the basis
for a protective sweep, but rather must be able to point
to dangerous circumstances that developed once the
officers were at the scene. Where police are present in
a home in a non-arrest context, there is too great a
potential for the pretextual use of a protective sweep to
turn an important tool for officer safety into an
opportunity for an impermissible law enforcement raid.
[203 N.J. at 103.]
A-4710-16T3
14
With respect to the scope of protective sweeps, the police may sweep the
"spaces immediately adjoining the place of arrest from which an attack could be
immediately launched[,]" even in the absence of probable cause or reasonable
suspicion. Buie, 494 U.S. at 334. Any wider sweep must be justified by "specific
facts that would cause a reasonable officer to believe there is an individual within
the premises who poses a danger" to the arresting officers. Davila, 203 N.J. at
115. Second, the sweep must be "narrowly confined to a cursory visual inspection
of those places in which a person might be hiding." Buie, 494 U.S. at 327. Although
the sweep "is not a search for weapons or contraband," such items may be seized if
observed "in plain view" during the sweep. Davila, 203 N.J. at 115. "Last, the sweep
should last 'no longer than is necessary to dispel the reasonable suspicion of danger'
or 'to complete the arrest and depart the premises.'" State v. Cope, 224 N.J. 530, 548
(2016) (quoting Davila, 203 N.J. at 115).
Defendant argues the detectives unlawfully conducted a protective sweep in
an area that the detectives did not have a right to be in: the common hallway. There
is nothing in the record to suggest that the detectives did not have adequate
reasonable suspicion to perform a Terry stop and enter the common hallway.
Instead, defendant contends he had a privacy interest in the common hallway, which
rendered the entry unlawful, arguing that "[t]he State did not, and could not, claim
A-4710-16T3
15
either that the police had either consent to enter the house, or, in the absence of any
visible contraband, the 'exigent circumstances' otherwise required for entry into an
area carrying a 'reasonable expectation of privacy.'"
Reasonable suspicion may be derived from a combination of factors, each of
which, taken in isolation, may be consistent with completely innocent behavior but,
in the aggregate, amount to reasonable suspicion. See Terry, 392 U.S. at 22-23.
Moreover, the detectives had a reasonable and articulable suspicion that defendant
and Anderson were engaged in some form of criminal activity because the detectives
observed several individuals being escorted by them into their building for brief
periods of time, repeatedly around 1:00 a.m. The area had a reputation for being a
high crime, narcotics-heavy area, which only reinforced the detectives' reasonable
belief that the suspicious activity they were witnessing was the sale of narcotics.
We are satisfied the record supports the finding that the detectives had a valid,
reasonable and articulable suspicion that defendants were involved in narcotics
transactions, and their furtive behavior following the detectives' approach
unquestionably gave them the right to detain defendants and perform a protective
sweep.
Defendant's argument that the common hallway provides a reasonable
expectation of privacy, superseding the detectives' reasonable suspicion, is
A-4710-16T3
16
unpersuasive. The motion judge aptly concluded defendant had no reasonable
expectation of privacy in the common hallway, and case law supports this
conclusion. See Smith, 37 N.J. at 496 (noting police officers may enter common
passageways in multi-family homes in furtherance of an investigation); State v. Ball,
219 N.J. Super. 501, 506-07 (App. Div. 1987) (holding one does not have a
reasonable expectation of privacy in areas that are also used by other occupants);
State v. Jordan, 115 N.J. Super. 73, 75 (App. Div. 1971) (holding one does not have
a reasonable expectation of privacy in the common hallways of hotels and city
apartment buildings). The concept of diminished privacy expectations often
associated with a porch, for example, is akin to that of the common hallway here.
See e.g., State v. Johnson, 171 N.J. 192, 209-10 (2002).
Defendant cites to an unpublished decision in support of his argument, which
does not constitute precedent and is not binding. Trinity Cemetery Ass'n v. Twp.
of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3. We are satisfied that the actions taken
by the detectives here were authorized and in keeping with the Court's holding in
Davila.
Defendant next argues the motion judge erred in finding that the contraband
was validly seized by the detectives under the plain view exception to the warrant
requirement. We disagree.
A-4710-16T3
17
Under the plain view exception, three requirements must be satisfied: (1) "the
police officer must be lawfully in the viewing area"; (2) "the officer has to discover
the evidence 'inadvertently,' meaning that he did not know in advance where
evidence was located nor intend beforehand to seize it"; and (3) "it has to be
'immediately apparent' to the police that the items in plain view were evidence of a
crime, contraband, or otherwise subject to seizure." Mann, 203 N.J. at 341
(quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).
With respect to the third requirement, "in order to seize evidence in plain
view[,] a police officer must have probable cause to associate the [item] with
criminal activity." Ibid. (second alteration in original) (quoting Bruzzese, 94 N.J. at
237). We already stated that the motion judge duly found the detectives were
lawfully in the common hallway, pursuant to their reasonable suspicion, and
defendants had a diminished privacy expectation in that area.
Defendant next argues the record does not support the motion judge's
conclusion that the detectives saw the contraband in question before they descended
the stairwell and shined their flashlight on the shelf containing the contraband.
While the record suggests that Detective Steever's testimony regarding this incident
differed on direct and cross-examination, it is not contradictory, and supports the
conclusion that the officers viewed the contraband, with the use of a flashlight, from
A-4710-16T3
18
the top of the basement staircase, without descending the stairs. The detectives
plainly and inadvertently viewed the contraband from an area where they were
lawfully situated.
There is ample credible evidence in the record supporting the motion judge's
finding that the warrantless search fell within the plain view exception and
defendant's motion to suppress was duly denied.
III.
In Point II, defendant argues for the first time on appeal that the trial judge
erred in allowing lay testimony to admit a laboratory certificate into evidence. We
review this issue under the plain error standard of review. R. 2:10-2; State v. Macon,
57 N.J. 325, 336 (1971). We will reverse on the basis of an unchallenged error only
if it was "clearly capable of producing an unjust result." Macon, 75 N.J. at 337. To
reverse for plain error, we must determine that there is a real possibility that the error
led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a result it otherwise might not have reached." Id. at 336. We
conclude that the error asserted in this Point does not rise to the level of plain error.
Nevertheless, we address defendant's argument for the sake of completeness.
Defendant contends that Detective Steever's lay testimony was improper and
"sufficiently prejudicial to necessitate reversal." Admission of the laboratory
A-4710-16T3
19
certificate was not objected to at trial and was submitted under N.J.S.A. 2C:35-19(c),
which provides:
Whenever a party intends to proffer in a criminal or
quasi-criminal proceeding, a certificate executed
pursuant to this section, notice of an intent to proffer
that certificate and all reports relating to the analysis in
question, including a copy of the certificate, shall be
conveyed to the opposing party or parties at least
[twenty] days before the proceeding begins. An
opposing party who intends to object to the admission
into evidence of a certificate shall give notice of
objection and the grounds for the objection within [ten]
days upon receiving the adversary's notice of intent to
proffer the certificate. Whenever a notice of objection
is filed, admissibility of the certificate shall be
determined not later than two days before the beginning
of the trial. A proffered certificate shall be admitted in
evidence unless it appears from the notice of objection
and specific grounds for that objection that the
composition, quality, or quantity of the substance
submitted to the laboratory for analysis will be
contested at trial. A failure to comply with the time
limitations regarding the notice of objection required
by this section shall constitute a waiver of any
objections to the admission of the certificate. The time
limitations set forth in this section shall not be relaxed
except upon a showing of good cause.
After explaining how evidence is submitted to a laboratory by law
enforcement officers, Detective Steever identified the certificate, which was
projected on a large screen for the jury, identified the document, and read the
results therefrom.
A-4710-16T3
20
By stipulation of counsel, and as confirmed by the trial judge during a pre-
trial conference, counsel agreed to admit the laboratory certificate into evidence
through Detective Steever without the need for the forensic scientist, David
Dupnock, to authenticate same. Defendant's attorney responded, "[t]hat's
correct, Your Honor," in confirming the State's proffer. Dupnock's name
remained on the witness list because he was referenced in the laboratory
certificate even though the record clearly reflects that "the State is not going to
call him as a witness." The certificate was identified by Detective Steever as,
"the certified lab report from the New Jersey State Police, Office of Forensic
Science," and moved into evidence without objection.
We disagree with defendant that Detective Steever's reading of the
laboratory test results at trial was inadmissible lay testimony purporting to
interpret the report as an expert. N.J.S.A. 2C:35-19(b) provides:
[The] certificate shall be sworn to before a notary
public or other person empowered by law to take oaths
and shall contain a statement establishing the
following: the type of analysis performed; the result
achieved; any conclusions reached based upon that
result; that the subscriber is the person who performed
the analysis and made the conclusions; the subscriber's
training or experience to perform the analysis; and the
nature and condition of the equipment used.
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In State v. Simbara, 175 N.J. 37, 43 (2002), our Supreme Court held that,
"the statute provides a procedural framework within which a trial court may
admit into evidence in a drug case an uncontested certificate containing the
information set forth in the portion of the statute cited above." A defendant
seeking to object to the admission of a certificate must provide notice to
prosecutors within ten days of receiving the State's initial notice. Ibid.
The statutory mandate was followed by the prosecutor and the trial judge
dealt with this evidentiary issue appropriately. No plain error is shown here.
Defendant not only waived his right to confront the forensic witness, he
stipulated to Detective Steever as the authenticating witness. Rule 701 states:
If a witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences may be
admitted if it (a) is rationally based on the perception
of the witness and (b) will assist in understanding the
witness' testimony or in determining a fact in issue.
[N.J.R.E. 701.]
Detective Steever's testimony did not amount to lay testimony, let alone
expert testimony, because he did not give any opinions or defend the laboratory
results. He simply read the contents of the certificate into the record after laying
a foundation. As noted in Simbara: "The statute merely establishes the
mechanism by which a trial court ultimately will determine whether a genuine
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contest exists between the parties in respect of the proffered certificate that
would require production of the analyst." 175 N.J. at 48-49.
A trial judge has broad authority to "exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence . . . ."
N.J.R.E. 611(a). "Traditional rules of appellate review require substantial
deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383,
453 (1998). It is undisputed that a court's admission of evidence is an exercise
in discretion that will not be reversed absent abuse of that discretion. State v.
Wakefield, 190 N.J. 397, 426 (2007) (quoting State v. Nelson, 173 N.J. 417, 470
(2002)). In this case, admission of the laboratory report by stipulation through
Detective Steever did not unfairly prejudice defendant and we find no plain
error.
IV.
In Point III, defendant argues that the judge's imposition of a discretionary
extended term was improper and "fundamentally deficient" because the entire
range of sentences applicable for his third-degree offense, three to ten years,
was not properly assessed.
At the time of defendant's sentencing, the judge considered defendant's
eight arrests and convictions for failure to give CDS to the police, causing bodily
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harm, possession of marijuana, illegal occupancy, and two counts of obstruction
of justice, as well as his six municipal court convictions and two open municipal
court disorderly persons warrants out of Trenton. The sentencing judge granted
the State's motion for the court to exercise its discretion under N.J.S.A. 2C:44-
3(a) and sentenced defendant to an aggregate term of eighteen years with nine
years of parole ineligibility. In doing so, the court recited in detail each of
defendant's prior convictions and sentences, and applied aggravating as well as
mitigating factors argued by defendant. The court concluded that the
aggravating factors, (three, six, and nine) outweighed the mitigating factors,
which were absent. 6 The judge also noted defendant's use of alcohol, marijuana,
and cocaine from the time he was a teenager until 2013.
According to defendant, the judge also erred by failing to weigh
defendant's prior record of conviction in qualifying him as a persistent offender
and "double counted" to justify an elevated base term. We disagree and see no
reason to disturb defendant's sentence.
6
The sentencing court found three aggravating factors and no mitigating
factors: (1) aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk existed
that defendant will reoffend); (2) aggravating factor six, N.J.S.A. 2C:44-1(a)(6)
(the extent of defendant's prior criminal record and the seriousness of the
offenses); and (3) aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need to
deter defendant and others from violating the law).
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Citing defendant's extensive criminal history and the fact that defendant
was over the age of twenty-one when he committed these offenses, was
previously convicted on two separate occasions of crimes when he was over the
age of eighteen, and was released from prison within ten years of the present
offense, we are satisfied the judge did not violate the sentencing guidelines.
Defendant could have been exposed to an expanded sentence of five to ten years
on a second-degree conviction, and five to twenty years as a persistent offender
as stated in the State's sentencing memorandum. His five third-degree
convictions could have been expanded to between three and ten years. Even
within the extended term, the sentence was within a reasonable range.
Our review of sentencing determinations is limited and is governed by the
"clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984).
That standard applies equally to a court's decision to sentence an eligible
defendant in the extended term. See State v. Young, 379 N.J. Super. 498, 504
(App. Div. 2005). We are bound to uphold the trial court's sentence, even if we
would have reached a different result, "unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating factors found . . . were not based
upon competent and credible evidence in the record; or (3) 'the application of
the guidelines to the facts . . . makes the sentence clearly unreasonable so as to
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shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014)
(quoting Roth, 95 N.J. at 364-65).
Applying these controlling principles, we conclude the judge properly
applied the sentencing guidelines, engaged in a comprehensive analysis of
defendant's eligibility for sentencing as a persistent offender under N.J.S.A.
2C:44-3(a), see State v. Hudson, 209 N.J. 513, 526-27 (2012), and considered
each of the applicable aggravating and mitigating sentencing factors. Moreover,
the court's findings were supported by the record and the sentence imposed did
not "shock [our] judicial conscience." Roth, 95 N.J. at 364.
To the extent that we have not specifically addressed any of defendant's
remaining contentions, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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