The opinion
NOT FOR PUBLICATION WITHOUT THE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-2049-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TORELL BROWN,
Defendant-Appellant.
______________________________
Submitted May 9, 2017 – Decided September 8, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-
05-1365.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Maria I.
Guerrero, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Following a jury trial, defendant Torell Brown appeals his
conviction for various controlled dangerous substance (CDS)
offenses, and imposition of an aggregate ten-year prison term with
five years of parole ineligibility.
Before us, defendant raises the following issues:
POINT I
THE TESTIMONY OF THE DRUG EXPERT EXCLUDED THE
BOUNDS OF ACCEPTABLE EXPERT TESTIMONY AND
DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not
raised below).
POINT II
THE PROSECUTOR’S COMMENT DURING SUMMATION
REGARDING DEFENDANT’S FAILURE TO TESTIFY WAS
GROSSLY IMPROPER AND DEPRIVED DEFENDANT OF A
FAIR TRIAL. (Not raised below).
POINT III
IT WAS ERROR FOR THE COURT TO FAIL TO MERGE
THE POSSESSION AND POSSESSION WITH INTENT TO
DISTRIBUTE OFFENSES WITH THE POSSESSION WITHIN
1,000 FEET OF A SCHOOL AND 500 FEET OF PUBLIC
HOUSING.
POINT IV
THE MAXIMUM EXTENDED TERM SENTENCE IMPOSED
UPON THE DEFENDANT OF TEN (10) YEARS WITH FIVE
(5) YEARS OF PAROLE INELIGIBILITY WAS
EXCESSIVE AND SHOULD BE MODIFIED.
After reviewing the record in light of the contentions advanced
on appeal, we affirm the conviction, but remand for resentencing.
I.
We briefly summarize the relevant facts from the record before
us. City of Newark Police Officers Onofre Cabezas and Roger Mendes
were dressed in plainclothes and patrolling in an unmarked vehicle
near a public housing complex and a school, when Cabezas noticed
2 A-2049-15T2
what he thought was defendant and another man involved in a hand-
to-hand drug transaction. After the man gave defendant currency,
Cabezas observed defendant retreat to a nearby building to retrieve
drugs from inside a metal grate and then return to give them to
the man. Cabezas subsequently stopped defendant while Mendes
located the drugs. Following defendant's arrest, a search revealed
that he was in possession of $140 in small bills. Lab testing
later determined the drugs were heroin and crack cocaine.
Essex County Prosecutor's Office Investigator Michael Bettin
provided expert testimony regarding the packaging of heroin and
cocaine for street-level drug transactions, the reasons a seller
would place drugs in a stash location, and the monetary value of
the drugs. In response to the prosecutor's hypothetical question,
which was similar to the transaction observed by Cabezas and
seizure of money from defendant, Bettin testified that a hand-to-
hand drug transaction had occurred. Bettin never opined as to
defendant's intent to distribute CDS. Defendant neither objected
to the hypothetical presented to Bettin nor Bettin's response.
Defendant did not testify. During summation, the prosecutor
commented on a photo showing the vantage point of the observation
of defendant's drug sale, stating:
And, ladies and gentlemen, let me also point
out to you this is the only photo we have that
. . . has been confirmed to be an accurate
3 A-2049-15T2
representation of what the officers saw that
day by one of the officers who was there that
day. Remember the only two people that were
there, besides Torell Brown on March 4, 2014
were Officers Onofre Cabezas and Roger Mendes.
In charging the jury, the trial judge commented on Bettin's
testimony, stating:
In this case, Michael Bettin was called as an
expert in street level narcotics. You are not
bound by such expert's opinion. But you
should consider each opinion and give it
weight to which you deem it is entitled.
Whether it be great or slight; or may reject
it.
The jury found defendant guilty of all offenses charged:
third-degree possession of heroin, N.J.S.A. 2C:35-10a (count one);
third-degree possession of heroin with the intent to distribute,
N.J.S.A. 2C:35-5(a)(1), b(3) (count two); third-degree possession
of heroin with the intent to distribute within a 1,000 feet of
school property, N.J.S.A. 2C:34-7(a) (count three); second-degree
possession of heroin with the intent to distribute within 500 feet
of a public housing facility, N.J.S.A. 2C:35-7.1(a) (count four);
third-degree possession of cocaine, N.J.S.A. 2C:35-10 (a) (count
five); third–degree possession of cocaine with the intent to
distribute, N.J.S.A. 2C:35-5a(1), b(3) (count six); third-degree
possession of cocaine with the intent to distribute within a 1,000
feet of school property, N.J.S.A. 2C:35-7(a) (count seven); and
4 A-2049-15T2
second-degree possession of cocaine within 500 feet of a public
housing facility, N.J.S.A. 2C:35-7.1(a) (count eight).
At sentencing, the judge stated:
the [c]ourt finds aggravating factor number
three: the risk that Mr. Torell Brown will
commit another offense, and the [c]ourt does
that based on an extensive history, and also
there's nothing from his history that would
detract from the reasonable likelihood that
he – he would offend again. His history is
replete with violations of law, drug laws and
other laws, and I give this heavy weight.
The extent I find number six: the extent of
his prior criminal record and the seriousness
of the [] offenses he's been convicted of. I
previously recited them. I find that . . .
I accorded heavy weight given the number of
convictions he's had. And there's a need to
deter Mr. Torell Brown from violating the law.
The defendant has had the benefit of probation
on [] a couple of occasions' more importantly
he has been convicted five times and served
time and that did not detract him from again
violating the law and as per the jury's
verdict. So I find aggravating factor number
nine as well and I give that heavy weight as
well.
. . . .
[W]hen I add the aggravating factors which are
three, six and nine, and I accord each one of
them heavy weight, and I find no mitigating
factors, clearly the aggravating factors more
than preponderate over the mitigating factors
which means that he should be sentenced in the
higher range.
5 A-2049-15T2
The judge denied the State's motion to sentence defendant as
a persistent offender, N.J.S.A 2C:44-3(a), but granted its motion
to impose an extended term, N.J.S.A 2C:43-6(f), based on his prior
convictions. Defendant had six convictions for intent to
distribute CDS, four of which were in a school zone.
Without merging any offenses, the judge imposed the following
sentences, to be served concurrently: count one, ten years with 5
years of parole ineligibility; count two, five years; count three,
five years; count four, ten years; count five, five years; count
six, five years; count seven, five years; and count eight, ten
years. Defendant therefore received an aggregate ten-year prison
term with five years of parole ineligibility.
II.
Defendant's contentions in Point I and II are raised for the
first time on appeal; therefore, we review them under the plain
error standard. R. 2:10-2. Plain error is an "error possessing
a clear capacity to bring about an unjust result and which
substantially prejudiced the defendant's fundamental right to have
the jury fairly evaluate the merits of his [or her] defense."
State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State
v. Irving, 114 N.J. 427, 444 (1989)), cert. denied, 534 U.S. 858,
122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). A reversal based on
plain error requires us to find that the error likely led to an
6 A-2049-15T2
unjust result that is "sufficient to raise a reasonable doubt as
to whether the error led the jury to a result it otherwise might
not have reached." State v. Williams, 168 N.J. 323, 336 (2001)
(quoting State v. Macon, 57 N.J. 325, 336 (1971)).
In Point I, defendant contends the trial judge erred by
permitting Bettin's testimony that a hand-to-hand drug transaction
occurred when Bettin responded to the prosecutor's hypothetical
that included a detailed recitation of facts similar to the factual
allegations against defendant. Defendant argues that Bettin
effectively opined that defendant was selling drugs, which was an
issue reserved for the jury. We disagree.
Appellate courts use an abuse of discretion standard in
reviewing the trial judge's admission of expert testimony.
Townsend v. Pierre, 221 N.J. 36, 52 (2015) (citing State v. Berry,
140 N.J. 280, 293 (1995)). Under our rules of evidence, 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, an expert opinion is not
admissible unless the "testimony concerns a subject matter beyond
7 A-2049-15T2
the ken of an average juror[.]" State v. Reeds, 197 N.J. 280, 290
(2009).
Thus, expert testimony on the ultimate issue
of whether a defendant intended to distribute
drugs is permissible only if it "will assist
the trier of fact to understand the evidence
or determine a fact in issue," N.J.R.E. 702,
and "may be excluded if its probative value
is substantially outweighed by the risk of .
. . undue prejudice," N.J.R.E. 403; State v.
Sowell, 213 N.J. 89, 100 (2013).
[State v. Cain, 224 N.J. 410, 421 (2016)
(alteration in original).]
Although expert testimony in drug cases is allowable, our
Supreme Court has recently placed certain limitations on the scope
of drug expert testimony in criminal cases. Id. at 426-27; State
v. Simms, 224 N.J. 393, 403-04 (2016). For example, experts can
explain how drug traffickers package and process drugs for
distribution, and the value of drugs. Cain, supra, 224 N.J. at
426. "Experts may also provide insight into the roles played by
individuals in street-level drug transactions, and into the
various machinations used by drug dealers to thwart detection[.]"
Ibid. (citing Berry, supra, 140 N.J. at 301-02 and State v.
Nesbitt, 185 N.J. 504, 515 (2016)). Thus, the Court has explained:
The average juror is not knowledgeable about
the arcana of drug-distribution schemes. Law
enforcement officers with extensive training,
education, and experience of the drug world
have "specialized knowledge [that] will assist
the trier of fact to understand the evidence
8 A-2049-15T2
or determine a fact in issue." N.J.R.E. 702.
Experts can help jurors understand the indicia
of a distribution operation, such as how drug
traffickers package and process drugs for
distribution.
[Ibid. (alteration in original) (citing State
v. Odom, 116 N.J. 65, 73-75 (1989)).]
Nevertheless, drug experts "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." Ibid. (citing Nesbitt,
supra, 185 N.J. at 512-14). "Nor should an expert be used to
bolster a fact witness's 'testimony about straightforward, but
disputed, facts.'" Id. at 426-27 (citing State v. McLean, 205
N.J. 438, 455 (2011)).
Accordingly, the Court has curtailed the permissible scope
of drug experts and has held 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 substance
with the intent to distribute is an ultimate issue of fact to be
decided by the jury." Id. at 429. In that regard, the Court has
reasoned:
We have come to the conclusion that an expert
is no better qualified than a juror to
determine the defendant's state of mind after
the expert has given testimony on the peculiar
characteristics of drug distribution that are
beyond the juror's common understanding. In
drug cases, such ultimate-issue testimony may
be viewed as an expert's quasi-pronouncement
9 A-2049-15T2
of guilt that intrudes on the exclusive domain
of the jury as factfinder and may result in
impermissible bolstering of fact witnesses.
The prejudice and potential confusion caused
by such testimony substantially outweighs any
probative value it may possess.
[Id. at 427-28.]
The Court has also placed limitations on the use of
hypothetical questions posed to experts. Id. at 429. Thus, the
court held: "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. The
court further explained that, "[w]hen the evidence is
straightforward and the facts are not in dispute, there is no need
to resort to a hypothetical." Id. at 429.
With these principles in mind, we discern no plain error in
allowing Bettin's expert testimony. His testimony was
appropriately limited to explaining to the jury the arcane world
of street-level drugs sales: the packaging of the drugs, the value
of drugs, the stashing of drugs, and how a sales transaction might
occur. Bettin was not asked and did not offer an opinion as to
whether defendant had or did not have an intention to distribute
drugs. The jury was therefore left free to make the ultimate
determination of whether defendant possessed CDS with the intent
to distribute. Moreover, the absence of an objection and the
10 A-2049-15T2
totality of the evidence in this case lead us to conclude that
Bettin's testimony was not particularly prejudicial or likely to
lead "the jury to a result it otherwise might not have reached."
Macon, supra, 57 N.J. at 336.
In Point II, defendant argues that the prosecutor's summation
comment violated his Fifth Amendment right to remain silent. We
disagree.
While prosecutors are entitled to zealously argue the merits
of the State's case, State v. Smith, 212 N.J. 365, 403 (2012),
cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558
(2013), they occupy a special position in our system of criminal
justice. State v. Daniels, 182 N.J. 80, 96 (2004). "[A]
prosecutor must refrain from improper methods that result in a
wrongful conviction, and is obligated to use legitimate means to
bring about a just conviction." Ibid. (quoting State v. Smith,
167 N.J. 158, 177 (2001)). It is well settled that a prosecutor's
summation cannot comment that a defendant's failure to testify is
evidence of guilt. State v. Bogus, 223 N.J. Super. 409, 422 (App.
Div. 1988) (citing Griffin v. California, 380 U.S. 609, 615, 85 S.
Ct. 1229, 1233, 14 L. Ed. 2d 106 (1965); State v. Lanzo, 44 N.J.
560, 563 (1965)).
Even if the prosecutor exceeds the bounds of proper conduct,
"[a] finding of prosecutorial misconduct does not end a reviewing
11 A-2049-15T2
court's inquiry because, in order to justify reversal, the
misconduct must have been 'so egregious that it deprived the
defendant of a fair trial.'" Smith, supra, 167 N.J. at 181
(quoting State v. Frost, 158 N.J. 76, 83 (1999)). One factor to
consider is whether there was a proper and timely objection to the
comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the
lack of any objection indicates defense counsel "perceived no
prejudice." Smith, supra, 212 N.J. at 407.
Here, we conclude that the prosecutor's summation comment was
not improper. Simply put, the comment that, "the only two people
that were there besides [defendant] . . . were [Cabezas and
Mendes,]" was not an attempt to convince the jury that defendant
was guilty because he did not testify. The comment was a challenge
to defendant's contention that a photo in evidence did not
establish that the police did not have an adequate vantage point
to observe defendant's hand-to-hand drug transaction.
Additionally, defendant's lack of objection demonstrates that the
comment was not prejudicial.
III.
Finally, we address defendant's challenge to his sentence due
to lack of merger and excessiveness. We also address the State's
contention that the sentence is illegal because the judge did not
properly impose a parole ineligibility period.
12 A-2049-15T2
We agree with defendant's argument in Point III, as does the
State, that the judge should have merged certain offenses. Count
one, possession of heroin, count two, possession of heroin with
intent to distribute, and count three, possession of heroin with
the intent to distribute within a school zone, should have been
merged into count four, possession of heroin with the intent to
distribute within 500 feet of a public housing facility. See
State v. Wright, 312 N.J. Super. 442, 455 (App. Div.) (citing
State v. Rechtschaffer, 70 N.J. 395, 411 (1976)), certif. denied,
156 N.J. 425 (1998); State v. Parker, 335 N.J. Super. 415, 426
(App. Div. 2000) (citing State v. Davis, 68 N.J. 69, 81 (1975)).
Additionally, count five, possession of cocaine, count six,
possession of cocaine with the intent to distribute, and count
seven, possession of cocaine with the intent to distribute within
a school zone, should have been merged into count eight, possession
of cocaine with the intent to distribute within 500 feet of a
public housing facility. Ibid.; see Wright, supra, 312 N.J. Super.
at 455 (citing Rechtschaffer, supra, 70 N.J. at 411), certif.
denied, 156 N.J. 425 (1998); State v. Parker, supra, 335 N.J.
Super. at 426 (App. Div. 2000) (citing Davis, 68 N.J. at 81).
Hence, we remand for merger despite the fact that it does not
affect the aggregate term of defendant's sentence. See State v.
13 A-2049-15T2
Soto, 340 N.J. Super. 47, 69 (App. Div.), certif. denied, 170 N.J.
209, (2001).
We, however, disagree with defendant, as does the State, that
counts four and eight should be merged. These counts are for
different CDS, heroin and cocaine. Thus, they should not be
merged. State v. Jordan, 235 N.J. Super. 517, 519-21 (App. Div.),
certif. denied, 118 N.J. 224 (1989).
In Point IV, defendant argues that his sentence was excessive
because the judge should not have granted the State's motion for
an extended term sentence. He maintains that the police observed
him making one drug sale and that he possessed third-degree
quantity of drugs. He asserts that, since the judge imposed flat
sentences on counts two through eight, he should have sentenced
defendant on count one to five years with two and one-half years
of parole ineligibility. We are not persuaded.
We begin by noting that review of a criminal sentence is
limited. A reviewing court must decide "whether there is a 'clear
showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221,
228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
Under this standard, a criminal sentence must be affirmed unless:
"(1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not 'based upon competent
credible evidence in the record;' or (3) 'the application of the
14 A-2049-15T2
guidelines to the facts' of the case 'shock[s] the judicial
conscience.'" Ibid. (alteration in original) (citation omitted).
If a sentencing court properly identifies and balances the factors
and their existence is supported by sufficient credible evidence
in the record, this court will affirm the sentence. See State v.
Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J.
484, 493-94 (1996).
Upon the State's motion, a trial court shall impose an
extended-term sentence in accordance with N.J.S.A. 2C:43-6(f)
which provides:
A person convicted of . . . possessing with
intent to distribute any . . . controlled
substance . . . under N.J.S.A. 2C:35-5, . . .
who has been previously convicted of
manufacturing, distributing, dispensing or
possessing with intent to distribute a
controlled dangerous substance or controlled
substance analog, shall upon application of
the prosecuting attorney be sentenced by the
court to an extended term as authorized by
subsection c. of N.J.S.A. 2C:43-7,
notwithstanding that extended terms are
ordinarily discretionary with the court.
In sentencing a defendant to an extended term pursuant to N.J.S.A.
2C:43-6(f), the court may impose a prison term between five and
ten years for convictions of third-degree crimes. N.J.S.A. 2C:43-
7(a)(4).
In accord with the record, the judge appropriately granted
the State's motion for an extended term sentence. The sentence
15 A-2049-15T2
is consistent with our sentencing guidelines and does not shock
the conscience. Therefore, we shall not disturb the trial court's
extended term.
The remaining sentencing issue involves the State's
contention that the judge failed to set a period of parole
ineligibility on the sentence imposed for counts four and eight,
as required by N.J.S.A. 2C:35-7. We agree.
N.J.S.A. 2C:35-7 provides that any person guilty of
possession of cocaine within 1000 feet of a school zone,
is guilty of a crime of the third degree and
shall, except as provided in N.J.S. 2C:35-12,
be sentenced by the court to a term of
imprisonment. . . . [T]he term of imprisonment
shall include the imposition of a minimum term
which shall be fixed at, or between, one-third
and one-half of the sentence imposed, or three
years, whichever is greater, during which the
defendant shall be ineligible for parole.
N.J.S.A. 2C:35-12, provides for a waiver of mandatory minimum
and extended terms for cases where "the defendant has pleaded
guilty pursuant to a negotiated agreement or, in cases resulting
in trial, the defendant and the prosecution have entered into a
post-conviction agreement, which provides for a lesser sentence,
period of parole ineligibility or anti-drug profiteering penalty."
In State v. Kearns, 393 N.J. Super. 107, 113 (App. Div. 2007),
we concluded that the mandatory minimum period of parole
ineligibility is compulsory and the failure to set one would make
16 A-2049-15T2
the sentence illegal, subject to correction at any time. Such
change may be made by the court sua sponte. See State v. James,
165 N.J. Super. 173, 178-79 (App. Div. (1979). Thus, the sentence
should be modified to specify a period of parole ineligibility
under N.J.S.A. 2C:35-7.
We affirm the convictions, but remand for resentencing
consistent with this opinion. We do not retain jurisdiction.
17 A-2049-15T2