STATE OF NEW JERSEY VS. CHARLES P. MCCOY(11-03-0187, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5467-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES P. MCCOY, a/k/a

PARIS MCCOY,

Defendant-Appellant.

_____________________________

Submitted May 23, 2017 – Decided August 4, 2017

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 11-03-0187.

Joseph E. Krakora, Public Defender, attorney

for appellant (Louis H. Miron, Designated

Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent (Kim L.

Barfield, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Charles P. McCoy appeals his conviction following

a jury trial of possession of a controlled dangerous substance

(CDS), and his eight-year extended term sentence. We affirm.

I.

The evidence at trial showed that defendant leased a home

with two other individuals. The police conducted surveillance of

the home over a few months and on November 22, 2010, obtained a

warrant to search the premises.

Defendant, his brother, and defendant's one-year-old child

were in the residence when the search warrant was executed. The

police found a white rocky substance in the toilet but were unable

to retrieve it. A blue pill, which was later identified as

methylenedioxymethamphetamine (MDMA), was found in a bowl on the

dining room table. During the search, defendant told one of the

detectives that anything found in the house belonged to him and

not his brother.

During the police surveillance of the residence, defendant

was observed operating a Buick Sebring. The license plate for the

Sebring was transferred to a Buick Roadmaster two weeks before the

execution of the search warrant. During the execution of the search

warrant, a detective asked defendant who owned the Roadmaster,

which was parked outside the residence. Defendant said the car

2 A-5467-14T1

belonged to his mother. The car was towed by the police to another

location.

Defendant was arrested and brought to the police station,

where the detective advised defendant that he intended to apply

for a search warrant for the Roadmaster. Defendant asked what

would happen if any CDS was found in the car, and was advised that

he and his mother would be charged if CDS was found in the car.

Defendant said there was a half-pound of marijuana in the trunk

that belonged to him. During a subsequent search of the vehicle,

the police found a half-pound of marijuana, ninety-five bags of

cocaine, ninety-one fioricet pills, sixty-five MDMA pills, baggies

and a scale.

Defendant was charged in an indictment with nine counts of

CDS related offenses and possession of a radio to intercept

emergency communications while committing or attempting to commit

a crime. Defendant's first jury trial on the charges ended in a

mistrial because the jury could not reach a unanimous verdict. The

court dismissed two of the counts (counts seven and eight).

Defendant was retried before a second jury on the following

remaining counts of the indictment: third-degree possession of

CDS, marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); fourth-degree

possession of CDS, marijuana, N.J.S.A. 2C:35-10(a)(3) (count two);

third-degree possession of CDS, MDMA, N.J.S.A. 2C:35-10(a)(1)

3 A-5467-14T1

(count three); third-degree possession of CDS, cocaine, with

intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count four); third-

degree possession with intent to distribute CDS, marijuana,

N.J.S.A. 2C:35-5(b)(11) (count five); second-degree possession

with intent to distribute CDS, MDMA, over one-half ounce, N.J.S.A.

2C:35-5(a)(1) (count six); third-degree possession with intent to

distribute a prescription legend drug, fioricet, N.J.S.A. 2C:35-

10.5(a)(3) (count nine).

The jury found defendant guilty of possessing the single MDMA

pill found in the bowl on the dining room table as charged in

count three. He was acquitted of the remaining charges. Defendant's

motion for a judgment of acquittal following the verdict on count

three was denied. The State filed a motion for imposition of an

extended term pursuant to N.J.S.A. 2C:44-3. The court granted the

State's motion and sentenced defendant to an extended term eight-

year sentence with a four-year period of parole ineligibility.

This appeal followed.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING [DEFENDANT'S] MOTION FOR A MISTRIAL

AS A RESULT OF THE STATE'S WITNESS'[S]

TESTIMONY CONCERNING THE INVOLVEMENT OF A

CONFIDENTIAL INFORMANT THAT RESULTED IN A

VIOLATION OF [DEFENDANT'S] RIGHTS UNDER THE

CONFRONTATION CLAUSE OF THE U.S. CONSTITUTION.

4 A-5467-14T1

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING [DEFENDANT'S] MOTION FOR A NEW TRIAL,

PURSUANT TO [RULE] 3:18-2, WITH RESPECT TO THE

SINGLE COUNT ON WHICH [DEFENDANT] WAS FOUND

GUILTY BECAUSE THE STATE'S EVIDENCE WAS

INSUFFICIENT TO PROVE CONSTRUCTIVE POSSESSION

OF THE MDMA BEYOND A REASONABLE DOUBT.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN

SENTENCING [DEFENDANT] TO SUCH A DRACONIAN AND

UNJUST SENTENCE BASED UPON THE RECORD AND,

THEREFORE, [DEFENDANT'S] SENTENCE SHOULD BE

VACATED.

II.

Defendant first argues the court erred by denying his request

for a mistrial. The request was made during the prosecutor's

redirect examination of Bridgeton City Police Sergeant Rick

Pierce, who testified as an expert in narcotics trafficking, drug

interdiction, and the distribution, packaging and value of

narcotics. Pierce was asked about reports prepared by detectives

involved in the investigation and arrest of defendant. More

particularly, he was asked if there was anything in the reports

he would not have included. In response, he said

Well, it looks like some of these reports,

he's talking with CIs and doing controlled

buys. There's information that I would not put

in these reports that would possibly give away

my CI or make the CI, the confidential

5 A-5467-14T1

informant, for the target to figure out who

it is, for their safety.

Defendant objected, claiming the testimony was highly

prejudicial, and requested a mistrial. The court denied the

mistrial motion and instead provided the jury with a curative

instruction:

[T]he [a]ssistant [p]rosecutor was in the

midst of redirect examination. There were some

questions that had been posed to the

detective, who's been qualified as an expert

in this court, regarding what types of

information . . . might not be included in a

report. And the detective was providing

examples of some items, which might [not] be

included in a report and the . . . expert had

mentioned the phrases confidential informant

and controlled buys. Those types of tactics,

if you will, are not before the [c]ourt,

they're not before the jury. In other words,

you're not to take anything from it that there

is evidence of confidential informants or

controlled buys in this particular case. But

rather, the detective was providing what is

deemed to be his professional opinion

regarding certain items that might not be

included in a report that's been written.

Defendant argues the detective's testimony was so prejudicial

that he was entitled to a mistrial. He also contends the curative

instruction was inadequate to abate the prejudice he suffered from

the testimony.

"A mistrial should only be granted 'to prevent an obvious

failure of justice.'" State v. Smith, 224 N.J. 36, 47 (2016)

(quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied,

6 A-5467-14T1

528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). "Whether

an event at trial justifies a mistrial is a decision 'entrusted

to the sound discretion of the trial court.'" Ibid. (quoting

Harvey, supra, 151 N.J. at 205). 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. Jackson, 211 N.J. 394, 407 (2012)).

"To address a motion for a mistrial, trial courts must

consider the unique circumstances of the case." Ibid. "If there

is 'an appropriate alternative course of action,' a mistrial is

not a proper exercise of discretion." Ibid. (quoting State v.

Allah, 170 N.J. 269, 281 (2002)). "For example, a curative

instruction, a short adjournment or continuance, or some other

remedy, may provide a viable alternative to a mistrial, depending

on the facts of the case." Ibid.

We are satisfied the trial court did not abuse its discretion

by denying defendant's mistrial motion. The judge's curative

instruction made clear to the jury that there was no evidence of

confidential informants or controlled buys in the case and that

Pierce's testimony was limited only to his expert opinion about

what he would not expect to see in a police report. We presume the

jury honored the judge's instruction. State v. Smith, 212 N.J.

365, 409 (2012).

7 A-5467-14T1

Moreover, the jury's verdict demonstrates that the

detective's testimony, as limited by the judge's curative

instruction, did not result in a manifest injustice. The challenged

testimony concerned confidential informants and controlled buys,

but defendant was acquitted of all of the charges alleging

possession with intent to distribute. Instead, he was convicted

only of the possession of the single MDMA pill found in a bowl on

the dining room table. We therefore discern no basis to conclude

that the judge's exercise of discretion in denying the mistrial

motion and providing the curative instruction resulted in a

manifest injustice. Smith, supra, 224 N.J. at 47.

III.

We next address defendant's contention that the court erred

by denying his motion for judgment of acquittal1 under Rule 3:18-

2 following the jury's verdict. Defendant claims the evidence was

insufficient to establish that he possessed the single MDMA pill

found in the bowl on the dining room table. He asserts the evidence

1

Although the point heading in defendant's brief refers to

defendant's motion as a motion for a new trial, the motion made

at trial was for judgment of acquittal under Rule 3:18-2. He also

only argues on appeal that he was entitled to a judgement of

acquittal based on a lack of evidence supporting his conviction.

We therefore consider his argument under Rule 3:18-2, and not

under Rule 3:20, which governs motions for a new trial. See State

v. Rodriguez, 141 N.J. Super. 7, 11 (App. Div.) (discussing the

differing standards for deciding motions under Rule 3:18 and Rule

3:20), certif. denied, 71 N.J. 495 (1976).

8 A-5467-14T1

showing he was in the house at the time the pill was found was

insufficient as a matter of law to establish he was in constructive

possession of the pill. We are not persuaded.

On a motion for acquittal under Rule 3:18-2, the court "must

determine only whether, 'based on the entirety of the evidence and

after giving the State the benefit of all its favorable testimony

and all the favorable inferences drawn from that testimony, a

reasonable jury could find guilt beyond a reasonable doubt.'"

State v. Zembreski, 445 N.J. Super. 412, 430 (App. Div. 2016); see

also State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974)

(holding that same standard applies for Rule 3:18-2 motions made

at the end of the State's case and following a jury verdict),

certif. denied, 67 N.J. 72 (1975). In making its determination,

the court "is not concerned with the worth, nature or extent

(beyond a scintilla) of the evidence, but only with its existence,

viewed most favorably to the State." Kluber, supra, 139 N.J. Super.

at 342. "If the evidence satisfies that standard, the motion must

be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

Defendant asserts there was insufficient evidence that he

possessed the MDMA pill found in the dining room. "A person has

actual possession of 'an object when he has physical or manual

control of it.'" State v. Morrison, 188 N.J. 2, 14 (2006) (quoting

Spivey, supra, 179 N.J. at 236). A person is in "constructive

9 A-5467-14T1

possession of 'an object when, although he lacks "physical or

manual control," the circumstances permit a reasonable inference

that he has knowledge of its presence, and intends and has the

capacity to exercise physical control or dominion over it during

a span of time.'" Ibid. (quoting Spivey, supra, 179 N.J. at 237).

Here, there was sufficient evidence supporting the jury's

determination that defendant was in possession of the MDMA pill

found in the dining room. The home was leased to defendant and two

others, but he was the only tenant present at the time the pill

was found. The pill was not hidden. It was in plain view in the

dining room such that a reasonable factfinder could conclude

defendant was aware of its presence. Cf. State v. Milton, 225 N.J.

Super. 514, 521-23 (App. Div. 1992) (reversing possession of CDS

conviction where there was insufficient proof that the defendant,

who was not then present in the home, possessed drugs found under

a bunk bed mattress in a bedroom he used). The evidence also showed

that defendant told a detective that anything they found in the

home belonged to him. In sum, the evidence was sufficient to

support a reasonable determination that defendant was either in

actual or constructive possession of the pill and the court

therefore correctly denied the motion for judgment of acquittal.

10 A-5467-14T1

IV.

Defendant last argues that his extended term eight-year

sentence with a four-year period of parole ineligibility is

excessive. He contends that his conviction for possession of a

single MDMA pill does not warrant the imposition of an extended

term sentence or the period of parole ineligibility imposed by the

trial court.

The court found defendant was eligible for an extended term

under N.J.S.A. 2C:44-3 as a persistent offender. The court further

found aggravating factors three, the risk that defendant will

commit another offense, six, the extent and seriousness of

defendant's prior record, and nine, the need to deter the defendant

and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6),

(9). The court did not find any mitigating factors. N.J.S.A. 2C:44-

1(b). The court found the aggravating factors substantially

outweighed the non-existent mitigating factors, and imposed the

eight-year extended term sentence and four-year period of parole

ineligibility.

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

11 A-5467-14T1

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)); see also State v. Case, 220 N.J. 49, 65 (2014).

Defendant's argument on appeal is limited to the contention

that his sentence is excessive. He does not argue that the court

failed to follow the sentencing guidelines or that its findings

of the aggravating factors were not supported by evidence in the

record. He argues only that the court's application of the law to

the facts should shock our judicial conscience. Bolvito, supra,

217 N.J. at 228.

Our Supreme Court has cautioned that we should not second-

guess a trial court's diligent exercise of its sentencing

discretion that is in accordance with the sentencing guidelines.

State v. Cassidy, 198 N.J. 165, 180-81 (2009); State v. Roth, 95

N.J. 334, 365 (1984). We must abide by a sentence imposed in

accordance with the sentencing guidelines unless it shocks our

judicial conscience. Cassidy, supra, 198 N.J. at 180; State v.

Tindell, 417 N.J. Super. 530, 570 (App. Div. 2011), certif. denied,

213 N.J. 388 (2013). "We are thus empowered – indeed obligated –

12 A-5467-14T1

to correct a clearly unreasonable sentence, even if the judge

applied correctly the sentencing guidelines." Tindell, supra, 417

N.J. Super. at 571.

To be sure, defendant has many prior involvements with law

enforcement and qualified as a persistent offender subject to the

extended term the court imposed. However, under our criminal code

"the severity of the crime is . . . the single most important

factor in the sentencing process." State v. Hodge, 95 N.J. 369,

378-79 (1984). Here, defendant's crime was the possession of a

single MDMA pill in his home.

We do not excuse defendant's crime or minimize its

significance, and it deserves punishment. But the severity of the

offense is at the absolute nadir of the spectrum for a possessory

CDS offense – possession of a single pill. Yet, he received a

sentence in the upper end of the extended term sentencing range

and a four-year period of parole ineligibility. Our collective

judicial conscience is shocked by the length of the sentence and

the period of parole ineligibility because, based on the severity

of the offense, the sentence is intolerably long.

We also observe that the court's imposition of the sentence

appears to have been informed in part by consideration of alleged

crimes for which defendant was not convicted. In its sentencing

determination the court noted that defendant expressed no remorse

13 A-5467-14T1

"despite the jury verdict and . . . the allegation that he was the

target of a drug distribution [investigation] in which three

controlled buys of CDS were made by a reliable confidential

informant prior to the execution of the search warrant." Defendant

was not charged with distribution of controlled dangerous

substances and was found not guilty of all of the offenses charging

that he possessed CDS with an intent to distribute. "It must be

remembered that unproved allegations of criminal conduct should

not be considered by a sentencing judge." State v. Farrell, 61

N.J. 66, 107 (1972); see also State v. Sainz, 107 N.J. 283, 293

(1987) (finding that a court may not impose a sentence for a crime

that is not fairly embraced by a guilty plea); State v. Green, 62

N.J. 547, 571 (1973) (finding evidence of prior arrest without a

conviction may be properly considered by a sentencing court in its

determination of deterrence, but "the sentencing judge shall not

infer guilt as to any underlying charge with respect to which the

defendant does not admit his guilt").

We affirm defendant's conviction. We vacate defendant's

sentence and remand for resentencing. See State v. Jaffe, 220 N.J.

114, 124 (2014) (holding that on resentencing a court shall

consider the defendants "post-offense conduct, rehabilitative or

otherwise," in its assessment of the aggravating and mitigating

factors). We do not retain jurisdiction.

14 A-5467-14T1

15 A-5467-14T1