State v. Patterson

• Decision Date: 09 May 2014
• Citation: 435 N.J.Super. 498,89 A.3d 616
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Kashif K. PATTERSON, Defendant–Appellant.
• Court: New Jersey Superior Court

435 N.J.Super. 498

89 A.3d 616

STATE of New Jersey, Plaintiff–Respondent,

v.Kashif K. PATTERSON, Defendant–Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted Dec. 16, 2013.

Decided May 9, 2014.

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

Before Judges YANNOTTI, ASHRAFI and LEONE.

The opinion of the court was delivered by

LEONE, J.S.C. (temporarily assigned).

Defendant Kashif K. Patterson appeals from his judgment of conviction for drug offenses. We affirm his convictions despite claims of prosecutorial misconduct. However, we hold that N.J.S.A. 2C:43–6(f) cannot be used to impose an extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35–7.1. Thus, we remand for the vacating of defendant's sentences and resentencing.

I.

On September 3, 2009, law enforcement officers executed a search warrant at a residence. They surprised defendant and co-defendants George E. Roane, III and Amir R. Cooke.¹ The three defendants were around a table in the living room. On the table there was a cellophane bag containing ninety-two baggies filled with crack cocaine. On the floor next to the table, in plain sight of defendants, there was a cellophane bag containing eighty baggies filled with crack, and a clear bag containing crushed oxycodone pills. In the bedroom and kitchen, the police found eight glass vials containing marijuana, hundreds of empty vials, six oxycodone pills, and a digital scale.

Detective Patrick Vengenock found in defendant's pocket $1,175 in cash, including thirty-seven $20 bills and thirteen $10 bills. Roane had $192 in his pockets. In Cooke's pockets, police found one vial of marijuana and one $10 baggie of crack.

Defendant told Vengenock that the cocaine was not his. Roane said he had just arrived. Cooke claimed all 172 baggies were his and for his personal consumption.

The indictment charged all three defendants with six counts. Count one charged third-degree possession of cocaine, N.J.S.A. 2C:35–10(a)(1); count two charged third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and –5(b)(3); count three charged second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35–5(a)(1) and –7.1; count four charged third-degree possession of oxycodone, N.J.S.A. 2C:35–10(a)(1); count five charged fourth-degree possession of less than an ounce of marijuana with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and –5(b)(12); and count six charged third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35–5(a) and –7.1.

Cooke pled guilty to count two, and defendant and Roane went to trial together. The State called Detective Vengenock, a searching officer, and a police drug expert. The expert testified that the 172 baggies of crack were packaged and intended for distribution at $10 per baggie. The expert also testified that narcotics distributors frequently have large sums of cash on their person, predominantly in $10 and $20 bills.

Roane and his mother testified to support his claims that he had just arrived. Defendant presented no evidence.

The jury convicted defendant of counts one, two, three, and four, and acquitted him of counts five and six. The jury convicted Roane of counts one and four, and acquitted him of the remaining counts.

At defendant's October 8, 2010 sentencing, the court merged count one into counts two and three. On count three, charging possession of cocaine with intent to distribute within 500 feet of a public housing facility, the court sentenced defendant to twelve years in prison, with five years of parole ineligibility. On counts two and four, the court sentenced him to prison terms of four years, to run concurrent to count two and each other.

Defendant appeals, raising the following arguments:

POINT 1

THE PROSECUTOR COMMITTED MULTIPLE AND INTER–RELATED ACTS OF MISCONDUCT THAT DENIED MR. PATTERSON A FAIR TRIAL AND DUE PROCESS OF LAW.

A. THE INTRODUCTION OF EVIDENCE THAT MR. PATTERSON WAS UNEMPLOYED AND CARRIED $1,175 CREATED THE IMPERMISSIBLE INFERENCE THAT HE DEALT DRUGS FOR PROFIT.

B. PROSECUTORIAL MISCONDUCT DURING SUMMATION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF, AND IMPLICITLY COMMENTED ON MR. PATTERSON'S ELECTION NOT TO TESTIFY.

C. THE PROSECUTOR INDUCED VENGENOCK TO EXPRESS AN OPINION IMPUGNING COOKE'S HONESTY WHEN HE ADMITTED THE DRUGS WERE HIS, THEREBY IMPROPERLY ATTACKING MR. PATTERSON'S DEFENSE.

D. BECAUSE OF THE MULTIPLE AND INTERRELATED INSTANCES OF PROSECUTORIAL MISCONDUCT, MR. PATTERSON WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT II

THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF TWELVE YEARS AS IT WAS ILLEGAL AND MANIFESTLY EXCESSIVE.

II.

In defendant's first Point, his first two arguments are based on the following facts. Detective Vengenock testified without objection that when he seized the $1,175 from defendant, he asked defendant “if he was currently employed [and] where the money came from. He indicated he was unemployed and that he won the money in Atlantic City gambling.”

Cross-examining the police drug expert, defendant's counsel elicited that “[i]f a man owned a deli or some kind of family business and he had with him $1,200, you wouldn't consider that to be someone that was involved in drugs.” In his closing, defendant's counsel referenced that testimony, and defendant's statement that “the money I have on me is from gambling in Atlantic City.” Defendant's counsel elaborated: “he goes to Atlantic City and he gambles. Now, that particular time he made money. And he told that to them, it's from the money I made at the casino.”

In his closing, the prosecutor noted that defendant had in his pocket $1,175, overwhelmingly in $10 and $20 bills. The prosecutor highlighted the drug expert's testimony that possessing such cash was consistent with drug trafficking. He then argued:

Mr. Patterson had $1,175, it's a lot of money. He apparently doesn't have a job, which he admitted to the officers and apparently he went gambling. But we've never heard anything about where he went gambling from, no receipts, no card, no nothing and they could have produced some testimony about that but we don't have any. So we have to take the version that that's where all the money came from gambling. There's been zero corroboration of same. It's a lot of money for somebody that doesn't have a job who['s] found in the presence of 172 baggies of cocaine....

After the closing, defendant objected to the prosecutor's “no corroboration” argument and demanded a mistrial. The trial court found that the prosecutor “was not arguing that Mr. Patterson was required to testify or that he had any burden to produce corroborating evidence.” However, to prevent any misunderstanding, the court instructed the jury:

As you know, the State alleges that Mr. Patterson made a statement on the day he was arrested relating to the source of the money that he had, supposedly had in his pocket.

The Prosecutor commented on Mr. Patterson's alleged statement in his closing and he pointed out that it was not corroborated. You may consider all of the proofs, or the lack of proofs relating to the alleged statement in assessing whether it was made, and if made whether it was credible. I remind you, however, that Mr. Patterson has the absolute right to remain silent and he had no burden to produce any proofs at trial.

In addition, in his purported statement Mr. Patterson allegedly indicated that he was unemployed and that he had won the money in Atlantic City. I instruct you that you are not to consider his employment status for any purpose during your deliberations as it is not relevant to your deliberations as to whether the State has proven him guilty of the charges beyond a reasonable doubt.

The court then commenced its final charge, in which it repeated this curative instruction. The court also warned that defendant's alleged oral statement must be considered with caution and only as the court had instructed, and reiterated the court's opening instruction that any stricken testimony “is not evidence” and “must be disregarded.” The court also reiterated its preliminary and opening instructions that the State had the burden of proof, that the burden never shifts to defendant, and that defendant had no obligation to testify or offer any proof.

After the verdict, defendant made a motion for a new trial. The trial court found that the introduction of defendant's statement explaining the money was from gambling gave the State a right to challenge its credibility, and that the curative instructions were sufficient both to prevent any inference that defendant was required to produce corroborating evidence, and to prevent consideration of his employment status.

A.

Defendant first challenges the prosecutor's introduction of evidence regarding defendant's possession of $1,175. This is more properly viewed as a challenge to the trial court's admission of evidence. “Considerable 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, 716 A.2d 395 (1998). “However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is ‘clearly capable of producing an unjust result.’ ” State v. Rose, 206 N.J. 141, 157, 19 A.3d 985 (2011) (quoting R. 2:10–2).

Here, defendant did not object to either the admission of the $1,175 found in his pocket, or the expert testimony that possession of that...