NOT FOR PUBLICATION WITHOUT THE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-4012-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK WILLIAMS,
Defendant-Appellant.
_____________________________
Submitted January 31, 2017 – Decided June 21, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment No. 14-01-0052.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from a judgment of conviction entered after
a jury trial for various controlled dangerous substance (CDS)
offenses and hindering apprehension, and claims the sentence
imposed was excessive. He also challenges a court order denying
his motion to suppress evidence. Based on our review of the record
in light of the applicable law, we affirm the court's denial of
the suppression motion, reverse defendant's conviction and
sentence for hindering apprehension, and affirm his remaining
convictions and sentence.
I.
On September 13, 2013, Juan Clavijo, a Passaic police
detective, conducted a drug surveillance operation in a high drug
trafficking area. Clavijo set up surveillance on the top floor
of a multi-family home and used binoculars to observe street-level
activity. Other officers were assigned to work as Clavijo's "arrest
team," meaning he would direct them to detain or arrest individuals
based upon his observations of any suspected drug activity.
At about 11:50 a.m., Clavijo observed a man, later
identified as defendant, enter the driver's seat of a vehicle
parked on the street below his vantage point. Clavijo observed a
white male approach the passenger side of defendant's vehicle and
engage in a brief conversation with a black male standing on the
sidewalk. Clavijo knew the black male from previous
investigations.
The black male spoke to defendant, who then lifted his
buttocks off of the vehicle seat, reached toward his lower back,
2 A-4012-14T2
and pulled out a clear plastic bag containing a white item.
Defendant removed a white item from the bag and handed it to the
black male, who passed it to the white male. The white male then
handed the black male paper currency, and the black male handed
it to defendant. Clavijo observed defendant then return the plastic
bag to its original location. The white male left the location,
and Clavijo directed his arrest team to detain him. They were
unable to do so because they could not locate him.
A few minutes later, Clavijo observed a man, later identified
as Calvin Pagan, approach the passenger side of defendant's
vehicle. Pagan spoke with another black male, who then spoke
directly to defendant. Clavijo saw defendant lift his buttocks off
of the driver's seat of the vehicle, reach into his buttocks area,
and retrieve a plastic bag containing a white item. Defendant
opened the bag, pulled out a white item and gave it to the black
male standing next to the vehicle. The black male handed the white
item to Pagan, who then gave the black male money. The black male
handed the money to defendant. Defendant then leaned back on the
driver's seat, lifted his buttocks off the seat, and reached into
his buttocks area. After defendant extracted his hands from his
buttocks area, he no longer held the plastic bag.
Pagan left the area, and Clavijo directed his arrest team to
detain Pagan. Pursuant to Clavijo's instructions, detective Jason
3 A-4012-14T2
Cancel followed Pagan in his unmarked police vehicle and observed
Pagan smoking from a glass cylinder, commonly referred to as a
crack pipe. As Cancel exited his vehicle, Pagan threw down the
crack pipe, and it shattered on the ground. Cancel detained Pagan
and discovered a metal rod, which Cancel described as a "push
rod," meaning a piece of drug paraphernalia used to push crack
cocaine into a crack pipe. Cancel arrested Pagan and arranged for
a marked patrol vehicle to bring Pagan to police headquarters.
After Pagan left the street where Clavijo first observed him,
Clavijo saw a male later identified as Tomasz Cichon riding a
bike. At the same time, defendant performed a U-turn with his
vehicle and parked it on the opposite side of the street. Cichon
approached the driver's side of defendant's vehicle. After a brief
conversation between defendant and Cichon, defendant raised his
buttocks off the driver's seat, reached into his buttocks area,
and retrieved a plastic bag containing a white item. He took a
white item out of the bag, and gave it Cichon, who then handed
defendant money. Cichon placed the white item in a blue box that
he put in his pants pocket. Clavijo saw defendant raise his
buttocks off the seat, and reach into his buttocks area with the
plastic bag in his hand. After removing his hand from his buttocks
area, defendant no longer held the plastic bag.
Cichon departed the area on his bicycle and Clavijo directed
4 A-4012-14T2
the arrest team to detain him. Cancel stopped Cichon, who became
very nervous and said, "It's right there. It's right there."
Cancel searched Cichon and found a blue container containing .13
grams of crack cocaine in Cichon's right pocket, as well as cash
and a crack pipe.
Meanwhile, moments after Cichon left defendant's vehicle,
defendant drove off. Clavijo directed his arrest team to stop
defendant. Officer Marco Clavijo stopped defendant's vehicle,
ordered defendant to exit the vehicle, and immediately placed
defendant under arrest. Defendant was handcuffed and searched by
Marco Clavijo, who recovered $502 from defendant's pocket.
Detectives arrived and Marco Clavijo had no further involvement
in the matter.
Defendant was transported to police headquarters, where
detective Clavijo performed a strip search of defendant that did
not result in the recovery of any evidence. Clavijo applied for
and obtained a warrant for a search of defendant's anal cavity,
after which defendant was transported to a hospital.
At the hospital, Clavijo presented a doctor with the warrant,
and Clavijo and five other detectives observed the search of
defendant's anal cavity. As the doctor put gloves on, defendant
stated he had to use the bathroom, and he wanted the detectives
removed from the area while the search was performed.
5 A-4012-14T2
The doctor instructed defendant to lay on his side, and after
he pulled down defendant's pants detectives observed a plastic bag
protruding from defendant's buttocks. The doctor then spread
defendant's buttocks and removed the bag. The bag contained a
white item, later determined to be cocaine. After the search,
defendant told the detectives that he thought they were "lazy,"
and would not get a search warrant for his anal cavity.
Defendant was charged in an indictment with fifteen offenses,
but prior to trial the State dismissed seven of the charges.1 The
matter proceeded to trial on the following eight counts: third-
degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count
one); third-degree possession of CDS (cocaine), with intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two);
second-degree possession of CDS (cocaine), with intent to
distribute within 500 feet of a public housing facility, N.J.S.A.
2C:35-7.1 and 2C:35-5(a) (count four); third-degree distribution
of CDS (cocaine), N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), to
Pagan (count five) and Cichon (count eight); second-degree
distribution of CDS (cocaine) within 500 feet of a public housing
facility, N.J.S.A. 2C:35-7.1 and 2C:35-5(a), to Pagan (count
seven) and Cichon (count ten); and third-degree hindering
1
At the State's request, the court dismissed counts three, six,
nine, eleven, twelve, thirteen, and fourteen.
6 A-4012-14T2
apprehension, prosecution, conviction or punishment, through the
concealment or destruction of evidence, N.J.S.A. 2C:29-3(b)(1)
(count fifteen).
Prior to trial, defendant filed a motion to suppress the
evidence seized during the arrests of Pagan and Cichon, and the
cocaine recovered from defendant's anal cavity. The court
conducted an evidentiary hearing and denied defendant's motion.
Following trial, the jury found defendant not guilty of the
charges in counts five and seven, which concerned the alleged
distribution of cocaine to Pagan, but found him guilty of the
remaining charges. At sentencing, the court granted the State's
motion for a mandatory extended term under N.J.S.A. 2C:43-6(f).
The court merged defendant's convictions for possession (count
one) and possession with intent to distribute (count two) with his
conviction for possession with intent to distribute within 500
feet of a public housing facility (count four), and imposed a ten
year sentence on count four with a five-year period of parole
ineligibility.
The court further merged defendant's conviction for
distribution to Cichon (count eight) with his conviction for
distribution to Cichon within 500 feet of a public housing facility
(count ten), and sentenced defendant to a concurrent ten-year term
with five years of parole ineligibility on count ten. The court
7 A-4012-14T2
also sentenced defendant to a consecutive four-year term for
hindering apprehension (count fifteen).
This appeal followed. On appeal, defendant makes the
following arguments:
POINT I
[] DEFENDANT'S MOTION FOR A JUDGMENT OF
ACQUITTAL ON THE CHARGE OF HINDERING
APPREHENSION SHOULD HAVE BEEN GRANTED[.]
POINT II
[] DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. I
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE ADMISSION OF AN EXPERT OPINION BASED
ON A HYPOTHETICAL THAT ASSUMED A FACT – THE
DRUG POSSESSOR IS A DRUG DEALER – THAT WAS THE
ULTIMATE DISPUTED ISSUE IN THE CASE[.]
POINT III
[] DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. I
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE TRIAL COURT'S FAILURE TO DEFINE ALL THE
ELEMENTS OF THE HOUSING FACILITY DRUG-ZONE
CRIME[.] (Not Raised Below)[.]
POINT IV
[] DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. I
OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE
JURORS ON ALL THE ESSENTIAL ELEMENTS OF
DISTRIBUTION AND INTENT TO DISTRIBUTE CDS[.]
(Not Raised Below)[.]
8 A-4012-14T2
POINT V
[] DEFENDANT'S RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES AS
GUARANTEEED BY THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR. 7
OF THE NEW JERSEY CONSTITUION WAS VIOLATED BY
THE UNLAWFUL SEARCH AND SEIZURE[.]
A. THE STATE FAILED TO PROVE THAT
THE SEARCH OF [] DEFENDANT AND CO-
DEFENDANTS WERE INCIDENT TO A LAWFUL
ARREST[.]
B. THE TRIAL COURT'S CONCLUSION THAT
THE STATE MET ITS BURDEN OF PROVING
THE LEGALITY OF THE SEARCH AND
SEIZURE IS A MIXED QUESTION OF LAW
AND FACT SUBJECT TO PLENARY REVIEW
ON APPEAL[.]
POINT VI
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT
IMPROPERLY BALANCED THE AGGRAVATING AND
MITIGATING FACTORS[.]
II.
We first turn our attention to defendant's argument that the
court erred by denying his motion for acquittal on the hindering
apprehension charge. In count fifteen of the indictment, defendant
was charged with hindering his own apprehension, prosecution,
conviction, or punishment, in violation of N.J.S.A. 2C:29-3(b)(1),
"by placing an amount of cocaine in his buttocks." Defendant argues
he was entitled to a judgment of acquittal on the charge because
9 A-4012-14T2
his conviction for concealing the cocaine in a body cavity violates
his constitutional rights against self-incrimination and
warrantless searches.
At the close of the State's evidence, the court denied
defendant's motion for acquittal on all charges. The court found
the hindering charge was supported by defendant's concealment of
the cocaine in his anal cavity, and his statement at the hospital
about the presumed laziness of the detectives. Following the jury's
verdict, the court again denied defendant's motion for a judgment
of acquittal on the hindering charge, finding the evidence was
"ample in terms of concluding that [defendant] had concealed the
crack cocaine in his buttocks" in order "to hinder his detention
or his apprehension, the investigation of the crimes that occurred
as well as the prosecution of those crimes."
"On a motion for judgment of acquittal, the governing test
is: whether the evidence viewed in its entirety, and giving the
State the benefit of all of its favorable testimony and all of the
favorable inferences which can reasonably be drawn therefrom, is
such that a jury could properly find beyond a reasonable doubt
that the defendant was guilty of the crime charged." State v.
D.A., 191 N.J. 158, 163 (2007); accord State v. Dekowski, 218 N.J.
596, 608 (2014); State v. Reyes, 50 N.J. 454, 458-59 (1967). No
distinction is made between direct and circumstantial evidence.
10 A-4012-14T2
State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S.
1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); Reyes, supra, 50
N.J. at 458-59. Applying the same legal standard, we conduct a de
novo review of a trial court's ruling on a motion for acquittal.
Dekowski, supra, 218 N.J. at 608; State v. Williams, 218 N.J. 576,
593-94 (2014); State v. Moffa, 42 N.J. 258, 263 (1964).
Under N.J.S.A. 2C:29-3(b)(1):
b. A person commits an offense if, with
purpose to hinder his own detention,
apprehension, investigation, prosecution,
conviction or punishment for an offense or
violation . . . he:
(1) Suppresses, by way of concealment or
destruction, any evidence of the crime . . .
which might aid in his discovery or
apprehension or in the lodging of a charge
against him . . . .
To convict defendant of the offense, the State was required
to prove:
(1) that defendant knew he[] could/might be
charged with [an offense];
(2) that [] defendant suppressed, by way of
concealment or destruction, any evidence of
the crime . . . which might aid in his
discovery or apprehension or in the lodging
of a charge against him; and
(3) that [] defendant acted with purpose to
hinder his[] own detention, apprehension,
investigation, prosecution, conviction, or
punishment.
11 A-4012-14T2
[Model Jury Charge (Criminal), "Hindering
One's Own Apprehension or Prosecution" (May
12, 2014).]
In State v. Fuqua, 303 N.J. Super. 40 (App. Div. 1997), we
considered a defendant's constitutional challenge to the
application of N.J.S.A. 2C:29-3(b)(1). As the defendant sat in a
parked car, he was approached by the police. Id. at 42. The
defendant drove his car away and a police chase followed. Id. at
44. Following the defendant's apprehension, he was searched and
cocaine was found in his sock. Id. at 43. The defendant was charged
and convicted of eluding, possession of CDS, and hindering
apprehension by concealing the cocaine in his sock. Id. at 42. The
defendant challenged his conviction for hindering, arguing that
application of the hindering statute, N.J.S.A. 2C:39-3(b)(1),
violated his right against self-incrimination. Id. at 45.
We did not decide the defendant's constitutional challenge
to the statute's application and instead "treat[ed] the issue as
one of statutory construction." Id. at 45-46. We determined that
the statute was applicable where it
relates to the concealment or destruction of
evidence of a person's completed crime, such
as tampering with a crime scene, disposing of
a murder weapon or the like . . . . Where,
however, the crime is an ongoing possessory
offense, such as defendant's possession of the
cocaine in this case, we question the
application of this statute.
12 A-4012-14T2
[Id. at 46.]
We reasoned that to hold otherwise would result in a
requirement that illegal substances, weapons, and materials "be
carried in plain view or else the possessor could be convicted"
of hindering. Ibid. Finding that such an interpretation was
"difficult to fathom" and would "implicate the constitutional
prohibition against self-incrimination," we determined
the language of the statute [applies] to
evidence of crimes other than ongoing
possessory crimes where the possession of the
items or substance at that time is chargeable
as a separate offense. The statute, where it
speaks of concealment of "evidence of the
crime" with the purpose of hindering the
actor's apprehension, N.J.S.A. 2C:29-3b(1),
is sensibly construed to refer to evidence of
a completed criminal act, not a current
possessory crime.
[Id. at 46-47.]
In State v. Sharpless, 314 N.J. Super. 440, 459-60 (App. Div.
1998), certif. denied, 157 N.J. 542 (1998), we reversed a
defendant's conviction for tampering with evidence in violation
of N.J.S.A. 2C:28-6. The evidence supporting the conviction showed
the defendant discarded twenty-three decks of heroin as he was
approached by the police prior to his arrest for possessory drug
offenses. Id. at 446-47.
We construed the application of N.J.S.A. 2C:28-6 with the
same rationale underlying our decision in Fuqua. Id. at 459. We
13 A-4012-14T2
recognized it was common for individuals possessing criminal
contraband to attempt to hide it from law enforcement and discard
it upon the approach of law enforcement. Ibid. We reasoned that
N.J.S.A. 2C:28-6 did not constitute a sufficiently clear statement
of legislative intent to permit convictions for a possessory
offense and tampering with evidence each time a defendant took an
action to hide or discard evidence of the possessory offense.
Ibid. We held:
Instead, consistent with the court's
interpretation of N.J.S.A. 2C:29-3b(1) in
Fuqua, we construe the phrase "conceal[ment]"
of "any article . . . with the purpose to
impair its availability in [an investigation]"
in N.J.S.A. 2C:28-6 to refer only to "evidence
of a completed criminal act, not a current
possessory crime." Under this analysis,
defendant's abandonment of his drug supply
occurred during the course of his ongoing
possession of heroin with the intent to
distribute and consequently did not constitute
tampering with evidence.
[Ibid. (citation omitted).]
In State v. Mendez, 175 N.J. 201, 204-07 (2002), the defendant
was convicted of tampering with evidence where he discarded and
destroyed cocaine during a police pursuit. The Court approved of
the reasoning in Fuqua and Sharpless, but found they were factually
distinguishable because they did not involve the destruction of
evidence. Id. at 211. The Court held that "when a defendant
allegedly possesses and then destroys all or part of the specimen
14 A-4012-14T2
of CDS, the Code [of Criminal Justice] permits the State to charge
that defendant with both drug possession and tampering with
physical evidence." Id. at 203. In other words, the Court
"interpret[ed] Sharpless as holding that the crime of tampering
with evidence of a possessory crime includes as a necessary element
the permanent alteration, loss, or destruction of the evidence
itself." Id. at 211-12. The Court explained that once the CDS was
destroyed, the possessory offense was "completed," and the
defendant had "taken a new step in completing a separate offense
involving destruction of physical evidence." Id. at 212.
Here, defendant argues that his conviction for hindering
apprehension is inconsistent with the holding in Fuqua and the
reasoning in Sharpless. The State argues Fuqua and Sharpless
provide no refuge for defendant because they apply only when a
defendant's concealment of evidence is attendant to an ongoing
possessory offense, and that here defendant concealed the cocaine
to hinder his apprehension for the completed offense of drug
distribution to Cichon. Defendant asserts the evidence concealed
in his buttocks was not evidence of the distribution offense but
instead provided the basis for his conviction for possession and
possession with intent to distribute.
Although the State now argues defendant's conviction was
proper if limited to hindering his completed distribution offense,
15 A-4012-14T2
no such limit was imposed at trial. The indictment, which was
read to the jury, charged that defendant, with the purpose of
hindering apprehension "for an offense," suppressed by concealment
or destruction evidence which might aid in "a charge against him."
The trial court's charge instructed that the jury had to find
"that [d]efendant knew that he could or might be charged with the
offense of possession, possession with the intent to distribute,
or distribution of a controlled dangerous substance, namely
cocaine," that he suppressed by concealment or destruction
evidence "of the crime" which might aid in "a charge against him,"
and that he acted with the purpose of hindering his apprehension
"for the offense of possession, possession with intent to
distribute, or distribution of a controlled dangerous substance,
namely cocaine." Thus, the indictment and the jury instructions
permitted defendant to be convicted of hindering his apprehension
for his ongoing possessory offenses. The indictment and jury
instructions also permitted conviction of hindering even if the
jury found that defendant acted and intended only to conceal and
not destroy the cocaine, and that he concealed the evidence before
he completed the distribution offense or became aware of the police
presence.2
2
The indictment and jury instructions also did not charge attempt
16 A-4012-14T2
We are mindful that our reasoning in Fuqua is limited to
evidence concealed as attendant to a possessory offense, Fuqua,
supra, 303 N.J. Super. at 46-47, and that defendant was found
guilty of the completed crime of distribution.3 Nevertheless, we
cannot ignore defendant was charged with and convicted of three
separate possessory offenses for the cocaine he concealed in his
buttocks following his distribution to Cichon, and there was no
showing defendant destroyed, or attempted to destroy, any of the
evidence. Thus, the indictment and the jury instructions permitted
the jury to convict defendant of hindering apprehension for those
"ongoing possessory offense[s]" by concealing the cocaine that was
the basis for those offenses.4 Under our interpretation of the
statute in Fuqua, that could not properly constitute a violation
of N.J.S.A. 2C:29-3(b)(1). Ibid.; Sharpless, supra, 314 N.J.
under N.J.S.A. 2C:5-1.
3
There may be circumstances where the concealment of CDS following
the completion of a distribution offense would violate N.J.S.A.
2C:29-3(b)(1) but we need not speculate about them here.
4
Indeed, in response to a hypothetical posed to the State's expert
witness on direct examination, the State's expert on narcotics and
distribution testified the cocaine concealed in defendant's
buttocks was "possessed" for distribution, and not for concealment
of any prior completed distribution. Moreover, the evidence showed
defendant placed the cocaine in his buttocks before he became
aware of any police presence, and there was no evidence he took
further action to conceal the cocaine at any time after he became
aware of the police presence at the scene.
17 A-4012-14T2
Super. at 459. We therefore reverse defendant's conviction for
hindering apprehension in count fifteen, vacate the sentence
imposed and remand for entry of an amended judgment of conviction
on that charge.
III.
We next address defendant's argument that the court erred by
permitting Danyal Bachok, the State's expert witness in narcotics
and narcotics distribution,5 to offer opinions concerning
defendant's guilt on the distribution and possession with intent
to distribute charges. Prior to trial, defendant moved to bar
Bachok's testimony on the issue of whether defendant possessed the
cocaine for distribution. The court denied the motion and indicated
defendant could object on a question-by-question basis during
Bachok's trial testimony.
At trial, the State posed a hypothetical question to Bachok
that included a detailed rendition of the facts related to
defendant's interactions with the three individuals as he sat in
his vehicle, the officer's observations of Pagan and Cichon
following their departure from the location of defendant's car,
and the arrest and search of defendant. The hypothetical referred
5
Bachok was qualified as an expert in narcotics, narcotics
possession, distribution, packaging, and street value.
18 A-4012-14T2
to defendant as the dealer, and the three individuals as buyers
one, two, and three.
The hypothetical was posed without objection until the
following colloquy occurred:
[PROSECUTOR]: [Bachok], assuming all those
hypothetical facts, do you have an opinion as
to why the crack cocaine recovered from
between dealer's buttocks would be possessed?
[BACHOK]: For distribution.
[PROSECUTOR]: And what is the basis for your
opinion?
[BACHOK]: Based on the three transactions that
were witnessed and also the denomination
breakdown of the money and the absence –
Defense counsel objected, arguing the prosecutor's use of the
terms dealer and buyer, and Bachok's testimony that there were
three transactions, constituted an impermissible expert opinion
on the ultimate issue that defendant engaged in three drug
transactions. The court overruled the objection, finding the
testimony was permissible under State v. Odom, 116 N.J. 65 (1989),
because Bachok did not directly comment on defendant's guilt but
instead "simply characterize[d] defendant's conduct based on the
facts in evidence in light of a specialized knowledge." See State
v. Nesbitt, 185 N.J. 504, 507 (2006) (noting Odom permitted the
State to pose a hypothetical question to a drug expert that
mirrored the facts of the case even if "expressed in terms of
19 A-4012-14T2
ultimate issues of fact"); accord State v. Sowell, 213 N.J. 89,
99-103, 107 (2013); State v. McLean, 205 N.J. 438, 454-55 (2011);
State v. Reeds, 197 N.J. 280, 290-93 (2009).
On appeal, defendant contends the court erred by overruling
his objection to Bachok's testimony, and renews his pretrial
argument that Bachok's testimony defendant possessed the cocaine
for distribution was inadmissible. We agree the court erred in
permitting the testimony but are convinced that under the
circumstances presented, it was not clearly capable of producing
an unjust result. R. 2:10-2.
"A trial court's evidentiary rulings are entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment." State v. Nantambu, 221 N.J.
390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439
(2012)). We assess whether there was a clear error in judgment in
light of the applicable law. State v. Rinker, 446 N.J. Super. 347,
358 (2016).
Expert testimony is permissible "[i]f scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue." N.J.R.E.
702. Expert testimony "otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact." N.J.R.E. 704. Nevertheless, expert testimony is not
20 A-4012-14T2
admissible unless it "concerns a subject matter beyond the ken of
an average juror." Reeds, supra, 197 N.J. at 290.
In State v. Cain, 224 N.J. 410, 420-26 (2016), the Court
summarized and clarified the legal standards governing the
admissibility of expert testimony and the use of hypothetical
questions in drug cases. It explained that expert testimony is
permissible in drug cases because "the average juror is not
knowledgeable about the arcana of drug-distribution schemes." Id.
at 426. Thus, experts may testify concerning the indicia of a drug
distribution operation, including the manner in which drugs are
packaged and processed for distribution. Ibid. They are also
permitted to explain the significance of quantities and values of
drugs, the use of logos in drug packaging, the functions of drug
related paraphernalia, the roles played by individuals in drug
transactions, and "the various machinations used by drug dealers
to thwart detection." Ibid.
However, the Court also held that expert testimony in drug
cases is subject to limitations. Id. at 426-27; State v. Simms,
224 N.J. 393, 403 (2016). An expert "should not express an opinion
on matters that fall within the ken of the average juror or offer
an opinion about the defendant's guilt," Cain, supra, 224 N.J. at
426 (citing Nesbitt, supra, 185 N.J. at 512-14), or "be used to
bolster a fact witnesses's 'testimony about straightforward but
21 A-4012-14T2
disputed facts,'" id. at 426-27 (quoting McLean, supra, 205 N.J.
at 455). The Court reaffirmed what it declared many times in the
past: that expert testimony is unnecessary to explain to jurors
the obvious. Id. at 427; see also Sowell, supra, 213 N.J. at 100-
02; McClean, supra, 205 N.J. at 462-63.
The Court also addressed the confusion caused by its
conflicting statements in Odom, supra, 116 N.J. 65, concerning
whether an expert in a drug case could properly offer an opinion
that "embraces ultimate issues that the jury must decide," such
as the defendant's state of mind. Id. at 421 (quoting Odom, supra,
116 N.J. at 79). The Court explained that experts are "no better
qualified than a juror to determine the defendant's state of mind
after the expert has given testimony of the peculiar
characteristics of drug distribution that are beyond the juror's
common understanding." Id. at 427. Such testimony "may be viewed
as an expert's quasi-pronouncement of guilt that intrudes on the
exclusive domain of the jury as factfinder, and may result in
impermissible bolstering of fact witnesses." Ibid. Thus, "[t]he
prejudice and potential confusion caused by such testimony
substantially outweighs any probative value it may possess." Id.
at 427-28. Accordingly, the Court concluded that "[g]oing forward,
in drug cases, an expert witness may not opine on the defendant's
state of mind. Whether a defendant possessed a controlled dangerous
22 A-4012-14T2
substance with the intent to distribute is an ultimate issue of
fact to be decided by the jury." Id. at 429.
The Cain Court also restricted the use of hypothetical
questions in drug cases. Hypothetical questions "should only be
used when necessary" and should not be used "[w]hen the evidence
is straightforward and the facts are not in dispute." Ibid. "To
the extent possible, questions posed to an expert witness in a
drug case should be compact and easy to understand and should not
take the form of a summation." Id. at 430.
Measured against this standard,6 Bachok's challenged
testimony was clearly inadmissible insofar as it exceed Cain's
limitations. That testimony was unnecessary because the occurrence
of the transactions and defendant's purpose in possessing the
cocaine was not beyond the ken of the jurors. Bachok directly
expressed an opinion that defendant possessed the cocaine for the
purpose of distribution. Moreover, it was improper to employ the
monikers dealer and buyer in the hypothetical question because it
assumed a fact – that defendant was a drug dealer – that was
disputed and required resolution by the jury. See Simms, supra,
224 N.J. at 405. The use of the terms also permitted Bachok's
reference to the transactions to inferentially constitute an
6
We have held that Cain has pipeline retroactivity. State v.
Green, 447 N.J. Super. 317, 328 (App. Div. 2016).
23 A-4012-14T2
expression of opinion that defendant was engaged in drug
distribution, another issue within the exclusive province of the
jury.
Defense counsel objected to Bachok's testimony concerning
defendant's purpose in possessing the cocaine, and the
transactions, and we therefore consider whether the court's error
in allowing the testimony was harmless. "An evidentiary error will
not be found 'harmless' if there is a reasonable doubt as to
whether the error contributed to the verdict." State v. J.R., 227
N.J. 393, 417 (2017). "The prospect that the error gave rise to
an unjust result 'must be real [and] sufficient to raise a
reasonable doubt as to whether [it] led the jury to a verdict it
otherwise might not have reached.'" Ibid. (quoting State v. Lazo,
209 N.J. 9, 26 (2012) (alterations in original)).
Based on our review of the record, we are not convinced the
court's error creates reasonable doubt that the error contributed
to the verdict. The evidence concerning defendant's purpose in
possessing the cocaine was overwhelming. He was observed on three
occasions extracting a plastic bag from his buttocks area, taking
a white substance from it, and transferring the white substance
to third parties in exchange for money. Two of the third parties,
Pagan and Cichon, were immediately confronted by the police
following the exchanges with defendant, and in Pagan's case he was
24 A-4012-14T2
observed using a crack pipe, and Cichon was found in possession
of cocaine in the same container he used to store the white item
he obtained from defendant. Defendant was arrested immediately
following the observed exchanges and a plastic bag containing
cocaine was found in defendant's buttocks, the precise location
where he had been seen placing a bag after each of the observed
transactions. Last, defendant was in possession of a large amount
of currency in denominations typically used in street level drug
transactions. In sum, Bachok's testimony added little to the
avalanche of evidence demonstrating defendant possessed the
cocaine with the intent to distribute it.
We also discern no basis to conclude that Bachok's testimony
that defendant engaged in transactions creates a reasonable doubt
that admission of the testimony led the jury to a verdict it might
not have otherwise reached. In the first instance, defendant was
charged separately with distribution of cocaine to Pagan and
Cichon, but was found guilty only of distribution to Cichon. Thus,
the jury was not swayed by Bachok's testimony concerning purported
drug transactions and determined defendant's guilt on the
distribution charges based on other admissible evidence.
The evidence supporting defendant's conviction for
distribution of cocaine to Cichon was overwhelming, independent
of Bachok's testimony that the exchange at the vehicle constituted
25 A-4012-14T2
a drug transaction. In contrast, although Pagan was observed
engaging in an exchange of a white item for money with defendant
through an intermediary, when Pagan was stopped by law enforcement
he was not in possession of cocaine. As such, there was less
evidence Pagan actually purchased cocaine from defendant, and the
jury, apparently unpersuaded by Bachok's testimony concerning
purported transactions, found reasonable doubt that defendant
distributed cocaine to Pagan.
We are therefore satisfied the court's error in permitting
Bachok's testimony concerning the transactions does not raise a
reasonable doubt that the jury would have reached a different
verdict. The evidence concerning the drug distribution to Cichon
was overwhelming, and the jury rejected Bachok's testimony as it
related to the charge of distribution to Pagan. Bachok also offered
other admissible testimony supporting the State's claim defendant
engaged in drug transactions, including the absence of drug
paraphernalia in the possession of street level drug dealers, the
amounts of drugs held for street level drug distribution, crack
cocaine pricing, and the denominations of currency typically used
in street level crack cocaine transactions.
We therefore reject defendant's contention that his
convictions should be reversed based on the court's error in
permitting Bachok's testimony concerning defendant's purpose in
26 A-4012-14T2
possessing the cocaine, and the transactions. See Sowell, supra,
213 N.J. at 107 (finding error in admission of drug expert's
testimony did not require reversal where there was otherwise
overwhelming evidence of the defendant's guilt).
IV.
Defendant next argues the court committed plain error in its
charge to the jury on the offense of distribution of CDS within
500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.7
Defendant contends a determination of guilt under N.J.S.A. 2C:35-
7.1 requires a finding there was distribution of CDS within 500
feet of a public housing facility owned or leased by a local
housing authority in accordance with the local redevelopment and
housing law, and that the court erred by failing to define for the
jurors the requirements of the local redevelopment and housing
law. Defendant asserts the failure rendered the jury unable to
determine if the State proved all of the elements of the offense
beyond a reasonable doubt.
Defendant's argument is without merit sufficient to warrant
discussion in a written opinion, R. 2:11-3(e)(2), beyond the
7
Defendant does not argue the court erred in failing to give a
proper instruction on the charge of possession with intent to
distribute within 500 feet of a public housing facility, N.J.S.A.
2C:35-7.1, as alleged in count four, but our analysis of the merits
of defendant's assertion applies to that charge as well.
27 A-4012-14T2
following brief comments. "Appropriate and proper charges to a
jury are essential for a fair trial." State v. Green, 86 N.J.
281, 287 (1981); State v. Baum, 224 N.J. 147, 158-59 (2016).
"Entailed is a comprehensible explanation of the questions that
the jury must determine, including the law of the case applicable
to the facts that the jury may find." Green, supra, 86 N.J. at
287-88.
"This requirement of a charge on a fundamental matter is more
critical in a criminal case when a person's liberty is at stake."
Id. at 289. "Because of the importance of proper instructions to
the right of trial by jury, erroneous instructions on matters or
issues material to the jury's deliberations are presumed to be
reversible error." State v. Collier, 90 N.J. 117, 122-23 (1982);
accord State v. McKinney, 223 N.J. 475, 495-96 (2015); State v.
Afanador, 151 N.J. 41, 54 (1997).
When reviewing an alleged error in the jury charge, "portions
of a charge alleged to be erroneous cannot be dealt with in
isolation but the charge should be examined as a whole to determine
its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).
Thus, in "assessing the soundness of a jury instruction," we
consider how ordinary jurors would understand the instructions as
a whole, based upon the evidence before them. State v. Savage,
172 N.J. 374, 387 (2002).
28 A-4012-14T2
Here, the court's instructions tracked the relevant model
jury charges. See Model Jury Charge (Criminal), "Possession of a
Controlled Dangerous Substance with Intent to Distribute in
Proximity to Public Housing Facilities, Parks or Buildings" (March
26, 2001); Model Jury Charge (Criminal), "Distributing a
Controlled Substance: Proximity to Public Housing Facilities,
Parks or Buildings" (March 26, 2001). These instructions included
for each offense the requirement that the State establish that the
public housing facility be owned or leased to a local housing
authority in accordance with the local development and housing
law.
Defendant does not contend that any of the charges failed to
identify an essential element of the offenses. Instead, he contends
the jurors were not instructed concerning whether the public
housing facility was owned or leased in accordance with the local
development and housing law. Such a charge was unnecessary here,
however, because defendant entered into a stipulation, which was
read to the jury, that the public housing facility at issue was
owned or leased by a public housing authority in accordance with
the local redevelopment law.
Defendant did not object to the court's jury instructions at
trial. We therefore review the instructions for plain error, an
error clearly capable of producing an unjust result, and discern
29 A-4012-14T2
none present here. R. 1:7-2; R. 2:10-2; McKinney, supra, 223 N.J.
at 494; Afanador, supra, 151 N.J. at 54.
V.
Defendant also argues the court's jury instruction on
distribution of CDS, N.J.S.A. 2C:35—5(a)(1) and N.J.S.A. 2C:35-
5(b)(3), was erroneous because it defined "distribution" to
include "the transfer, actual, constructive, or attempted, from
one person to another, of a controlled dangerous substance," but
failed to instruct the jury on the elements of attempt under
N.J.S.A. 2C:5-1 (emphasis added).8 The State argues the court
utilized the model jury instructions, the instructions as whole
were correct, and that any error in failing to define attempt was
harmless because defendant was not charged with attempted
distribution, the evidence showed only completed transactions, and
there was no argument made that defendant should be convicted
based on any alleged attempt to distribute CDS.
Defendant did not object to the jury charge at trial and we
therefore review for plain error. R. 1:7-2; R. 2:10-2. The court
utilized the pertinent model jury charges, which define
distribution to include an attempt without elaborating on the
8
The same definition was included in the court's charge on
possession of CDS with intent to distribute. Although defendant
does not expressly challenge the court's instruction on that
charge, our analysis of the issue is the same.
30 A-4012-14T2
statutory elements of attempt. See, e.g., Model Jury Charge
(Criminal), "Possession of a Controlled Dangerous Substance With
Intent to Distribute" (June 8, 2015); Model Jury Charge (Criminal),
"Distribution of a Controlled Dangerous Substance" (Jan. 14,
2008). The charges derive their definition of "distribute" from
the definitions of "distribute" and "deliver," set forth in
N.J.S.A. 2C:35-2.
The lack of a definition of attempt in these charges under
certain circumstances might constitute an error clearly capable
of producing an unjust result, but no such circumstances are
present here. There was nothing in the evidence or the arguments
to suggest this was a case of attempted distribution. Clavijo
testified only about completed exchanges and the State argued
defendant was guilty of distribution by making those exchanges.
Thus, even assuming "the judge's failure to charge the jury [on]
attempt was in error, this error was not sufficient to lead the
jury to a result it would not have otherwise reached." State v.
Belliard, 415 N.J. Super. 51, 74 (App. Div. 2010), certif. denied,
205 N.J. 81 (2011).
VI.
Defendant next argues the court erred by denying his pretrial
motion to suppress the evidence seized from Pagan, Cichon, and
himself. We disagree.
31 A-4012-14T2
Following an evidentiary hearing on defendant's motion the
court determined that the credible evidence established that based
on Juan Clavijo's observations of the exchanges and Cancel's
observations of Pagan smoking crack, there was probable cause for
the arrest and search of Pagan. The court found that based on
Clavijo's observations of Cichon there was probable cause to
suspect he had committed an offense thereby justifying his arrest
and search. The court last determined that based on the
observations of defendant and the results of the arrests of Pagan
and Clavijo there was probable cause for the arrest and search of
defendant by Marco Clavijo and subsequent search of defendant's
anal cavity following the issuance of the search warrant.
"Appellate courts reviewing a grant or denial of a motion to
suppress must defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the
record." State v. Hubbard, 222 N.J. 249, 262 (2015). We
"disregard those findings only when a trial court's findings of
fact are clearly mistaken." Ibid. We owe no deference to the
trial court's legal conclusions, which we review de novo. Id. at
263.
"The Fourth Amendment of the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution protect
citizens against unreasonable searches and seizures, and require
32 A-4012-14T2
a showing of probable cause prior to the issuance of a warrant."
State v. Moore, 181 N.J. 40, 44 (2004). A warrantless search is
presumed invalid unless it fits within a recognized exception to
the warrant requirement. Ibid. The State bears the burden of
proof as to the legality of the arrest and subsequent search.
State v. O'Neal, 190 N.J. 601, 611 (2007); Moore, supra, 181 N.J.
at 44-45.
Here, the court sustained the searches of Pagan and Cichon,
and the warrantless search of defendant based on the exception to
the warrant requirement for searches incident to a lawful arrest.
See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034,
2040, 23 L. Ed. 2d 685, 694 (1969); Moore, supra, 181 N.J. at 45.
The court determined that the officers had probable cause to arrest
Pagan, Cichon, and defendant when the searches were conducted,
thus justifying the warrantless searches as incident to those
arrests.
The standard for determining probable cause to arrest and to
search are the same. State v. Smith, 155 N.J. 83, 92 (1998).
Probable cause requires a well-grounded suspicion that a crime has
been or is being committed. Moore, supra, 181 N.J. at 45; State
v. Nishina, 175 N.J. 502, 515 (2003). In considering whether
there is probable cause, the court should consider the totality
of the circumstances and "make a practical, common sense
33 A-4012-14T2
determination whether, given all of the circumstances, 'there is
a fair probability that contraband or evidence of a crime will be
found in a particular place.'" Moore, supra, 181 N.J. at 46
(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332, 76 L. Ed. 2d 527, 544 (1983)). The circumstances to be
considered include the officers' experience, and whether the area
where the arrest occurred is a high-crime area. Id. at 46.
In Moore, the Court found there was sufficient probable cause
to arrest the defendant where an experienced narcotics officer,
conducting surveillance in a high drug trafficking area, observed
the defendant exchange money for small unknown objects. Id. at 47;
cf. State v. Pineiro, 181 N.J. 13, 25 (2004) (finding an exchange
of a cigarette package in a high crime area established an
articulable suspicion of criminal activity justifying an
investigatory stop). Here, the court was presented with
circumstances providing a greater basis for a well-grounded
suspicion that defendant, Pagan, and Cichon had committed or were
committing crimes than those the Court found sufficient in Moore.
Clavijo observed three suspected drug transactions, including
those between defendant and Pagan and Cichon. In each transaction
there was an exchange of currency for a white substance, which
defendant kept consistently concealed. Immediately following
Pagan's transaction, and prior to his arrest, he was observed
34 A-4012-14T2
smoking from a crack pipe. The arrest of Cichon, and the recovery
of the cocaine from the box in which he placed the white item he
received from defendant, provided an additional circumstance
supporting the arrest of defendant. In sum, we are satisfied the
evidence amply supports the court's determination there was a
reasonable basis to suspect Pagan, Cichon, and defendant had
committed or were committing crimes, thereby justifying their
arrests and the searches incident to them.
VII.
Defendant last argues his aggregate sentence of fourteen
years with a five-year period of parole ineligibility is excessive.
As we have voided defendant's hindering conviction and its
consecutive four-year sentence, he is solely subject to the
aggregate ten-year sentence with a five-year period of parole
ineligibility on his drug convictions. We proceed to examine that
sentence.
Defendant argues the court erred by finding aggravating
factors three, the risk that defendant will commit another offense,
N.J.S.A. 2C:44-1(a)(3), and nine, the need to deter the defendant
and others from violating the law, N.J.S.A. 2C:44-(a)(9).
Defendant also claims the court erred by failing to find mitigating
factors one, that defendant's conduct neither caused nor
threatened to cause serious harm, N.J.S.A. 2C:44-1(b)(1), and two,
35 A-4012-14T2
that defendant did not contemplate that his conduct would cause
or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). We review a
"trial court's 'sentencing determination under a deferential
standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014)
(quoting State v. Lawless, 214 N.J. 594, 606 (2013)). We may "not
substitute [our] judgment for the judgment of the sentencing
court." Lawless, supra, 214 N.J. at 606. We must affirm a sentence
if: (1) the trial court followed the sentencing guidelines; (2)
its findings of fact and application of aggravating and mitigating
factors were based on competent, credible evidence in the record;
and (3) the application of the law to the facts does not "shock[]
the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
A sentencing court must find mitigating factors that are
supported by the record, and should accord them such weight as it
deems appropriate. Grate, supra, 220 N.J. at 338; State v. Case,
220 N.J. 49, 64-65 (2014); State v. Dalziel, 182 N.J. 494, 504-05
(2005). Defendant contends the court erred by failing to find
mitigating factors one and two, but did not request that the court
find those factors at the time of sentencing. See State v.
Blackmon, 202 N.J. 283, 297 (2010) ("Although there is more
discretion involved in identifying mitigating factors than in
addressing aggravating factors, those mitigating factors that are
36 A-4012-14T2
suggested in the record, or are called to the court's attention,
ordinarily should be considered and either embraced or rejected
on the record.") (emphasis added); State v. Bieniek, 200 N.J. 601,
609 (2010) (encouraging trial courts to address each mitigating
factor raised by defendants). Even if defendant requested a finding
of mitigating factors one and two, "[d]istribution of cocaine can
be readily perceived to constitute conduct which causes and
threatens serious harm" and, thus, supported the court's decision
not to find those mitigating factors here. State v. Tarver, 272
N.J. Super. 414, 435 (App. Div. 1994).
We are also satisfied the record supports the court's finding
of aggravating factors three and nine. We reject defendant's
contention the court erred in finding aggravating factor three
based solely upon his current convictions and prior record, thereby
double-counting aggravating factors. The court correctly
considered defendant's criminal history in determining his risk
of re-offending, Dalziel, supra, 182 N.J. at 502, and also based
its finding on defendant's history of unemployment and reliance
upon drug distribution for financial support.
Defendant's assertion that aggravating factor nine "has lost
its value as a meaningful aggravating factor" lacks merit. Our
Supreme Court has noted that the need for deterrence is one of the
most important factors in sentencing. State v. Fuentes, 217 N.J.
37 A-4012-14T2
57, 78-79 (2014). In Fuentes, the Court stated that in considering
aggravating factor nine a sentencing court must make a qualitative
assessment of the defendant's risk of recidivism in light of the
defendant's history, including but not limited to the defendant's
criminal history. Id. at 78. Here, the court fulfilled this
mandate, considering defendant's personal and criminal history in
determining the need for deterrence.
We also are not persuaded by defendant's argument that his
sentences on his drug convictions are manifestly excessive. The
court properly considered defendant's prior criminal record and
the circumstances of the offenses for which he was convicted,
found and weighed the aggravating and mitigating factors, and
imposed a sentence in accordance with the applicable legal
principles that does not shock our judicial conscience. Bolvito,
supra, 217 N.J. at 228.
Defendant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's conviction for hindering apprehension under count
fifteen is reversed, and his sentence on that charge is vacated.
His remaining convictions and sentences are affirmed. The matter
is remanded for entry of an amended judgment of conviction
consistent with this opinion. We do not retain jurisdiction.
38 A-4012-14T2