NOT FOR PUBLICATION WITHOUT THE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-3824-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
XZAVIER D. HAYES a/k/a
DWAYNE HAYES,
Defendant-Appellant.
_______________________________
Submitted July 18, 2017 – Decided July 25, 2017
Before Judges Reisner and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-03-0309.
James R. Lisa, attorney for appellant.
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Xzavier Hayes appeals his March 9, 2016 judgment
of conviction. We affirm.
I.
On January 10, 2013, Officer Lowry (Lowry) and his partner
were on patrol in plain clothes in an unmarked vehicle in the
vicinity of Martin Luther King and Bayview Avenues in Jersey City.
Lowry received a phone call from another officer, who advised
based on information from a confidential informant that an
individual located on the corner in front of a specific address
"possibly had a brick of heroin" in his jacket pocket. Lowry was
provided a description of the individual. Lowry and his partner
drove to the address, which was just around the block, and saw a
person matching the description standing on the corner. The police
officers exited their vehicle with badges exposed and walked toward
the individual, who had his back turned. Once he turned to see
them, he discarded two small white objects to the ground. The
objects were consistent with the size and shape of packaged heroin.
The officers advised defendant of their investigation and, after
confirming the packets were heroin, placed defendant under arrest.
A search of defendant after arrest revealed he was carrying sixty-
nine packets of heroin and $148 in cash.
Prior to trial, defendant sought to suppress this evidence,
contending the officers had no reasonable articulable suspicion
to conduct an investigatory detention. The suppression motion was
denied. The motion judge found Lowry "received information from
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a [confidential informant] who had been reliable in the past in
similar situations," and that the information was "corroborated
by the officers' own observations" when the officers saw defendant,
who matched the description they were given, and defendant dropped
the white packets. This gave the officers "a sufficient basis to
believe a crime had been committed," according to the motion judge,
who concluded the officers had probable cause for the arrest and
that the evidence was lawfully seized incident to defendant's
arrest.
The case was tried before a jury. Defendant was convicted
of third-degree possession of a controlled dangerous substance
(CDS), N.J.S.A. 2C:35–10(a)(1) (Count One); third-degree
possession of a CDS with intent to distribute, N.J.S.A. 2C:35–
5(a)(1) and N.J.S.A. 2C:35-5(b)(13) (Count Two); third-degree
possession of a CDS with intent to distribute within 1000 feet of
school property, N.J.S.A. 2C:35–7(a) (Count Three); and second-
degree possession of a CDS with intent to distribute within 500
feet of certain public property, N.J.S.A. 2C:35–7.1(a) (Count
Four).
On March 9, 2016, defendant was sentenced on Count Four to a
ten-year term of incarceration with five years of parole
ineligibility. The other three counts were merged into Count
Four.
3 A-3824-15T3
On appeal, defendant raises these issues:
POINT I. THE EVIDENCE SEIZED SHOULD HAVE BEEN
SUPPRESSED BECAUSE OFFICER LOWRY LACKED
SUFFICIENT REASONABLE SUSPICION NECESSARY TO
CONDUCT AN INVESTIGATORY STOP.
POINT II. THE JURY INSTRUCTIONS, AS WELL AS
STATEMENTS MADE BY THE STATE DURING CLOSING
ARGUMENTS, ERRONEOUSLY INDICATED THAT HAYES
COULD BE FOUND GUILTY OF INTENT TO DISTRIBUTE
DUE TO SHARING. (NOT RAISED BELOW)
POINT III. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN DENYING DEFENSE'S REYES
MOTION TO DISMISS THE CHARGES OF POSSESSION
OF A DANGEROUS SUBSTANCE WITH INTENT TO
DISTRIBUTE, POSSESSION OF A DANGEROUS
SUBSTANCE WITH INTENT TO DISTRIBUTE WITHIN
1000 FEET OF SCHOOL PROPERTY, AND POSSESSION
OF A DANGEROUS SUBSTANCE WITH INTENT TO
DISTRIBUTE WITHIN 500 FEET OF A PUBLIC PARK.
POINT IV. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN DENYING THE DEFENSE'S
MOTION FOR A MISTRIAL.
II.
Defendant appeals the trial court's order denying his
suppression motion. We defer to the trial court's factual findings
on a motion to suppress unless they were "clearly mistaken" such
that appellate intervention is necessary "in the interests of
justice." State v. Elders, 192 N.J. 224, 244 (2007) (internal
quotation marks and citation omitted). Our review of "purely
legal conclusions" is plenary. State v. Goodman, 415 N.J. Super.
4 A-3824-15T3
210, 225 (App. Div. 2010) (citation omitted), certif. denied, 205
N.J. 78 (2011).
There is no merit to defendant's contention that the motion
judge erred in rejecting the motion to suppress. There was no
investigatory detention.1 The officers stepped out of their
vehicle and began to walk toward defendant, who initially had his
back turned. When defendant turned toward the police, he dropped
the packets. Once he did that, and the officers recognized the
packets were the size and shape of packed heroin, the officers had
probable cause to arrest defendant based on their observations.
See State v. Basil, 202 N.J. 570, 585 (2010) ("[A] police officer
has probable cause to arrest a suspect when the officer possesses
'a well grounded suspicion that a crime has been or is being
committed." (quoting State v. Sullivan, 169 N.J. 204, 211 (2001))).
Defendant was arrested and searched.
1
Sometimes referred to as a Terry stop, Terry v. Ohio, 392 U.S.
1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), an
investigatory detention does not require a warrant if it is based
on "specific and articulable facts which, taken together with
rational inferences from those facts," provide a "reasonable
suspicion of criminal activity." Elders, supra, 192 N.J. at 247
(quoting State v. Rodriquez, 172 N.J. 117, 126 (2002)). An
investigatory detention is considered more intrusive than a field
inquiry and does implicate constitutional requirements. Id. at
246-47. See also State v. Rosario, __ N.J. __ (2017).
5 A-3824-15T3
A search incident to arrest does not require a warrant.
Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040,
23 L. Ed. 2d 685, 694 (1969) (allowing a warrantless search of a
person and what that individual might be able to reach after an
arrest); see also United States v. Robinson, 414 U.S. 218, 234,
94 S. Ct. 467, 476, 38 L. Ed. 2d 427, 439-40 (1973) (noting that
justifications for a search incident to arrest include "the need
to disarm the suspect" and "to preserve evidence for later use at
trial"). Thus, there was no error by the motion judge in denying
defendant's motion to suppress because the drugs were discovered
pursuant to a search incident to arrest that was based upon
probable cause.
III.
The primary issue at trial was whether defendant possessed
the drugs with an intent to distribute them. Defendant testified
he sometimes shared heroin with friends.
PROSECUTOR: You had all 69 bags of heroin
there for yourself, is that correct?
DEFENDANT: Yes, and sometimes I might look
out for a friend of mine if they ask.
PROSECUTOR: So sometimes you would sell
heroin?
DEFENDANT: No, I said sometime I might look
out for a friend of mine. Share.
6 A-3824-15T3
PROSECUTOR: So you would share. You would
give him the heroin?
DEFENDANT: No, I would share them him [sic].
I sniff half of the bag, and they sniff half
of the bag.
PROSECUTOR: Okay. You -- so you would share
the heroin, right?
DEFENDANT: Sometimes.
In his summation, the prosecutor suggested the facts
supported "distribution" if defendant shared heroin with a friend,
commenting "[t]he defendant himself admitted to committing the
offense." The court instructed the jury that to distribute means
"the transfer, actual, constructive or attempted from one person
to another of a controlled dangerous substance." The court defined
intent as "a purpose to do something" but that it was "not
necessary that the drugs be transferred in exchange for payment
or promise of payment of money or anything of value." Defendant
did not object to the summation or the judge's instruction.
Defendant contends on appeal that he could not be found guilty of
intent to distribute just because he shared drugs.
We review this issue under a plain error standard, meaning
that our inquiry is to determine whether this was an error that
was "clearly capable of producing an unjust result." R. 2:10-2;
see State v. Macon, 57 N.J. 325, 336 (1971). Under that standard,
reversal of defendant's conviction is required if there was error
7 A-3824-15T3
"sufficient to raise a reasonable doubt as to whether [it] led the
jury to a result it otherwise might not have reached." State v.
Green, 447 N.J. Super. 317, 325 (App. Div. 2016) (quoting Macon,
supra, 57 N.J. at 336).
In reviewing the adequacy of the judge's charge to the jury,
we must consider the charge as a whole in determining whether it
was prejudicial. See State v. Wilbely, 63 N.J. 420, 422 (1973)
(internal citations omitted).
There was nothing prejudicial about the judge's charge to the
jury. It tracked the model charge for distribution of a CDS2 and
was consistent with our decision in State v. Heitzman, 209 N.J.
Super. 617, 620 (App. Div. 1986) (concluding there "was a
sufficient factual basis" to sustain conviction of possession with
intent to distribute where defendant admitted an intent to share
drugs), certif. denied, 107 N.J. 603 (1987). See Mogull v. CB
Commercial Real Estate Grp., Inc., 162 N.J. 449, 466 (2000) (holding
that instructions given in accordance with model charges, or which
closely track model charges, are generally not considered erroneous).
Similarly, the prosecutor did not commit plain error in commenting
on distribution in his summation because of defendant's testimony
that he shared drugs with friends, and that such conduct came
2
See Model Jury Charge (Criminal), "Distribution of a Controlled
Dangerous Substance" (2008).
8 A-3824-15T3
within the definition of distribution. The jury was capable of
determining whether to believe defendant's version about personal
use or, given the quantity of the drugs and past sharing, that his
intent was distribution.
III.
The State relied upon a map of Jersey City to show the
location of defendant's arrest relative to a public library. After
the State rested without introducing a copy of the ordinance that
had adopted the map, defendant moved to dismiss Counts Two, Three
and Four of the indictment. On appeal, defendant contends the
trial court erred in granting the State's request to admit the
ordinance as evidence, after it rested.
"[I]n reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse of
discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing
Brenman v. Demello, 191 N.J. 18, 31 (2002)). The general rule as
to the admission or exclusion of evidence is that "[c]onsiderable
latitude is afforded a trial court in determining whether to admit
evidence, and that determination will be reversed only if it
constitutes an abuse of discretion." State v. Feaster, 156 N.J.
1, 82 (1998) (internal citations omitted), cert. denied, 532 U.S.
932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); see also State v.
J.A.C., 210 N.J. 281, 295 (2012) (internal citations omitted).
9 A-3824-15T3
Under this standard, an appellate court should not substitute its
own judgment for that of the trial court, unless "the trial court's
ruling 'was so wide of the mark that a manifest denial of justice
resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting
State v. Kelly, 97 N.J. 178, 216 (1984)).
Here, we agree with the court that although the State was
late in offering evidence of the ordinance, the application was
made promptly when the error was brought to the State's attention.
There is no indication the defense was prejudiced by its
introduction, aside from its attempt to capitalize on an oversight.
A trial is to be a search for the truth, see McKenney v. Jersey
City Medical Center, 167 N.J. 359, 370 (2001); Kernan v. One
Washington Park Urban Renewal Associates, 154 N.J. 437, 467 (1998)
(Pollock, J., concurring), and the court's ruling was consistent
with that objective.
IV.
We agree with the trial court that defendant's motion for a
mistrial was properly rejected. A "trial court's denial of [a]
defendant's motion for a mistrial [is reviewed] in accordance with
a deferential standard of review." State v. Jackson, 211 N.J.
394, 407 (2012). We "will not disturb a trial court's ruling on
a motion for a mistrial, absent an abuse of discretion that results
in a manifest injustice." Ibid. (quoting State v. Harvey, 151
10 A-3824-15T3
N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811,
145 L. Ed. 2d 683 (2000)).
Defendant contends the court erred in denying his motion for
a mistrial because on two occasions, one of the police officer
witnesses indicated she received information about defendant from
an out-of-court witness. In the first instance, the court stopped
the officer mid-sentence, before any information was relayed. In
the second instance, where the officer testified she "saw a male
who was described to [her]," the court sustained the objection.
We are satisfied based on our review of the record that this
brief reference was not sufficient to create reasonable doubt
about the verdict in light of the totality of the evidence. See
R. 2:10-2.
Affirmed.
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