NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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