NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4149-10T1
STATE OF NEW JERSEY,
RAHEEM M. LONG,
Submitted September 11, 2012 - Decided October 18, 2012
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Criminal Part, Union
County, Indictment No. 09-11-0989.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kimmo Z.H. Abbasi, Designated
Counsel, on the brief).
Theodore J. Romankow, Union County
Prosecutor, attorney for respondent (Derek
T. Nececkas, Assistant Prosecutor, of
counsel and on the brief).
Following a jury trial, defendant Raheem Long was found
guilty of third-degree distribution of heroin, N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(3) (Count One); second-degree
distribution of heroin within 500 feet of a public housing
facility, N.J.S.A. 2C:35-7.1 (Count Two); third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1) (Count Three);
third-degree possession of heroin with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Four); and
second-degree possession of heroin with intent to distribute
within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1
The judge granted the State's request to impose a mandatory
extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced
defendant to four years' imprisonment on Count One; a concurrent
term of eight years on Count Two; a concurrent term of four
years on Count Three; a concurrent term of eight years, with a
four-year period of parole ineligibility, on Count Four; and a
concurrent term of eight years on Count Five. The appropriate
penalties and license suspension were also imposed.
Before us, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS THE EVIDENCE AGAINST HIM
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO REVEAL DETECTIVE STATEN'S
Defendant was tried with his co-defendant, Stephen Pinks, who
was charged with a single count of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1) (Count Six). Pinks was also
convicted by the jury. We deal only with the appeal filed by
SURVEILLANCE LOCATION AS THE DISCLOSURE OF
THE EXACT LOCATION OF THE UNDERCOVER
SURVEILLANCE WAS CENTRAL TO THE DEFENDANT'S
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR ACQUITTAL NOTWITHSTANDING THE
VERDICT AS THE JURY VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE AND RESULTED IN A
MANIFEST DENIAL OF JUSTICE TO DEFENDANT
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A MISTRIAL
THE TRIAL COURT ERRED IN PERMITTING THE
STATE TO PRESENT AN OVERLY SUGGESTIVE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
REQUEST TO SUBSTITUTE COUNSEL PRIOR TO THE
COMMENCEMENT OF TRIAL
THE SENTENCE IMPOSED ON DEFENDANT'S
CONVICTION WAS MANIFESTLY EXCESSIVE AND
CONSTITUTED AN ABUSE OF DISCRETION
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
At a pre-trial evidentiary hearing on defendant's motion to
suppress, the State called as its sole witness Plainfield police
detective Daniel Staten. At approximately 3:13 p.m. on the
afternoon of June 16, 2009, Staten, who had fifteen years
experience as a narcotics detective, was in a "confidential
surveillance location" in a "very high narcotics area." Staten
estimated that he had made 2000 narcotics arrests in the area.
Staten knew defendant, having arrested him "several times
before in the past." Staten observed defendant, who was with a
small group of individuals near 536 West Second Street, have
several conversations with passers-by. After each conversation,
defendant would walk away from the group toward some "steps,"
reach down and pick up a soda can from the sidewalk. Staten
observed these individuals exchange cash with defendant and walk
away from the area.
Staten saw a car approach the group, and Pinks exited from
the driver's side door. Pinks raised two fingers, and defendant
motioned for Pinks to join him near the soda can. Staten saw
defendant "twist off the top of the can," remove some small item
and hand it to Pinks, who gave defendant some "currency." Pinks
got back into the car.
Staten radioed for backup assistance. Detective Michael
Black stopped Pinks' vehicle and advised Staten that Pinks was
in possession of narcotics. Detective Troy Alston also
responded, arrested defendant and seized the soda can. Inside
were additional bags of narcotics that bore stamped markings
identical to those on the two bags seized from Pinks.
The motion judge concluded that Staten was a credible
witness, found probable cause for the arrests and seizure of the
narcotics and denied the motion. Before us, defendant contends
that Staten's testimony lacked credibility because Staten was
unable to see the details of the transaction from his location
and acknowledged errors in his written report. As a result,
defendant claims his arrest and the seizure of the narcotics
were not based upon probable cause.
The argument lacks sufficient merit to warrant extensive
discussion. R. 2:11-3(e)(2). We add only the following.
In reviewing a decision on a motion to suppress, we "must
uphold the factual findings underlying the trial court's
decision so long as those findings are 'supported by sufficient
credible evidence in the record.'" State v. Elders, 192 N.J.
224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474
(1999)). A reviewing court will reverse only if it is convinced
that the trial judge's factual findings "are so clearly mistaken
'that the interests of justice demand intervention and
correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146,
162 (1964)). The Court has noted that "[p]robable cause cannot
be defined with scientific precision because it is a practical,
nontechnical conception addressing the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." State v. Basil, 202 N.J. 570,
585 (2010) (citations and internal quotation marks omitted).
The judge's findings in this case are adequately supported
by the evidence, and we find no basis to conclude otherwise.
Those factual findings demonstrate that defendant's arrest and
the seizure of the soda can were supported by probable cause.
We affirm the denial of defendant's motion to suppress.
The jury was selected following two days of voir dire
questioning. Immediately before opening statements, defense
counsel advised the judge that defendant was "unhappy with
[counsel's] services." Counsel told the judge he was "prepared
to go to trial" and had "done all investigation which [he felt
was] proper." When questioned by the judge, defendant stated
his attorney was not "representing [him] right," was not
"call[ing]" him and providing "advice," and he "want[ed] another
The judge concluded that defendant's request was a "delay
tactic." He further stated:
[W]e're here on the day of trial, openings
are about to begin, the jury's been
selected, and for the first time defendant's
brought to the Court's attention that he
wants a new counsel. He has no substitute
counsel ready to go. And he wants another
counsel from the public defender's office.
. . . .
. . . [T]here's been no showing by him
of substantial cause other than he's just
dissatisfied. He lost the motion [to
suppress] and he feels [defense counsel]
didn't diligently represent him.
In Point VI, defendant contends the judge erred in denying his
request to discharge his attorney and have substitute counsel
appointed. We disagree.
We have said that a defendant's right to secure counsel of
his own choice "is not absolute and cannot be insisted upon in a
manner that will obstruct an orderly procedure in courts of
justice and deprive such courts of the exercise of their
inherent powers to control the same." State v. Harris, 384 N.J.
Super. 29, 59 (App. Div.), certif. denied, 188 N.J. 357 (2006)
(quotation marks and citations omitted). Additionally, "a court
may not require the Public Defender to assign new counsel to a
defendant who was dissatisfied with the attorney assigned to
represent him, absent a showing of 'substantial cause.'" Ibid.
(quoting State v. Coon, 314 N.J. Super. 426, 438 (App. Div.) (in
turn quoting State v. Lowery, 49 N.J. 476, 489-90 (1967)),
certif. denied, 157 N.J. 543 (1998)). "Disagreement over
defense strategy does not rise to the level of good cause or
substantial cause." Coon, supra, 314 N.J. Super. at 438
In this case, defendant failed to assert any substantial
cause supporting the discharge of his appointed public defender.
Moreover, despite several days of court proceedings that
occurred beforehand and at which he was present, defendant
waited until the jury was empanelled and the trial was about to
begin before voicing his concerns. The judge did not err in
denying defendant's request.
We now consider those points regarding the conduct of the
trial and the testimony adduced before the jury.
During the hearing on the motion to suppress, Staten
generally described the distance between his surveillance
location and the transaction between defendant and Pinks. On
cross-examination, Staten stated that he wore his eyeglasses but
used no binoculars or other equipment, made his observations
from an elevated point and had no obstructions in his line of
sight. He further testified that "the surveillance location was
the 500 block of West Second Street which is [a] housing
complex." There were no objections to this testimony, and the
record does not disclose any further discussion regarding the
issue of Staten's surveillance location before the detective's
testimony began at trial.
On cross-examination in front of the jury, defense counsel
began to question Staten with greater specificity about the
surveillance location. The prosecutor objected and argued at
sidebar that the exact location should not be disclosed, noting
"[w]e talked about this in chambers. This is a protected
location." Counsel for Pinks argued that before the judge could
grant such a request, an in camera hearing was necessary. The
judge cleared the courtroom and took testimony from Staten.
Thereafter, he sealed the record.
The judge advised defense counsel that he had preliminarily
decided to grant the State's motion to prohibit disclosure of
the surveillance site, but that he would entertain defense
counsel's attempt to "convince [him] otherwise." Defense
counsel responded, "I'm not going to make an argument to change
the Court's ruling . . . to protect the site." The judge
permitted some additional questioning of Staten.
The judge then ruled that he would issue a "protective
order" regarding the surveillance location "based on the fact
that there's a concern for the lives and property of anybody
else connected with this overall process. And it goes to a
substantial safety issue and potential reprisal issue." The
judge continued, "[T]he important public interest balances and
outweighs the need for disclosure . . . because of the public
safety that's involved here." The jury was brought back into
the courtroom and the trial continued.
Before us, defendant contends he was denied his right to
effectively cross-examine Staten as a result of the judge's
decision to prevent disclosure of the surveillance location.
Again we disagree.
Following the Supreme Court's decision in State v. Garcia,
131 N.J. 67 (1993), the Legislature adopted N.J.S.A. 2A:84A-27,
now codified as N.J.R.E. 515, which provides:
No person shall disclose official
information of this State or of the United
States . . . if the judge finds that
disclosure of the information in the action
will be harmful to the interests of the
When the State asserts this privilege, it must show "that
disclosure would compromise an important public interest" and
"must demonstrate a realistic possibility that revealing the
[surveillance] location would compromise present or future
prosecutions or would possibly endanger lives or property."
Garcia, supra, 131 N.J. at 77-78. The trial court must conduct
an in camera proceeding to determine whether the standard has
been met. Id. at 78. Thereafter, a defendant may overcome the
privilege by making "a substantial showing of need[.]" Id. at 81
(citation omitted). The court must balance "defendant's need
for that information with the public's interest in
nondisclosure." State v. Zenquis, 131 N.J. 84, 88 (1993).
Even if the privilege applies, a defendant is entitled "to
inquire about certain important facts" regarding the
surveillance to help the jury "critically examine testimony,
while also serving the State's need for confidentiality."
Garcia, supra, 131 N.J. at 81. These facts include "the distance
from which the observation was made," whether "the witness used
[any] vision-enhancing article[s]," whether the observations
were made from an elevated position, and information about the
witness's line and angle of sight. Id. at 81-82. We review the
trial judge's decision under an abuse of discretion standard.
Id. at 81.
In this case, defendant has failed to articulate any
substantial need for the exact surveillance location. There was
extensive cross-examination regarding Staten's location, line of
sight and ability to make the observations he claimed to have
made. We also have reviewed the sealed transcript of the in
camera hearing conducted by the judge. The judge did not
mistakenly exercise his discretion in granting the State's
application to bar disclosure of the exact surveillance
During cross-examination of Staten, counsel for Pinks asked
the detective to demonstrate the transaction he saw between
defendant and his client. Staten was permitted to step down
from the witness stand and, after defense counsel likened the
demonstration to "a movie," the following exchange occurred:
Q: . . . [W]ho do you want to play,
[defendant] or Mr. Pinks?
Staten: Denzel Washington.
Q. No you can't --
Q: Okay, you can be [defendant].
Staten: I ain't too happy about that
. . . .
At sidebar, defense counsel moved for a mistrial, arguing
that Staten was "casting character evidence into this case as to
his knowledge of [defendant]." The prosecutor argued there was
"nothing prejudicial" about Staten's remarks as "he didn't say
anything about the character of [defendant]." The judge denied
the request for a mistrial and decided to give a curative
instruction. He told the jury:
[B]efore we begin I want to give you what's
called a curative instruction. As we were
commencing to go into what's called a
demonstrative role play the witness made a
statement that he didn't appreciate playing
a certain role. It's not for him to choose
or not for him to say and it's not evidence.
So I'm going to instruct the jury [to]
disregard the last comment. . . .
It's something that is a demonstrative
role and the witness really had no choice in
that matter. So any comment he made must be
disregarded and must not be considered by
you as part of this case.
Defendant now argues the judge erred in not granting his request
for a mistrial. We again disagree.
As the Court recently stated in State v. Yough, 208 N.J.
385, 397-98 (2011):
[W]hether a prejudicial remark can be
neutralized through a curative instruction
or undermines the fairness of a trial are
matters peculiarly within the competence of
the trial judge. The grant of a mistrial is
an extraordinary remedy to be exercised only
when necessary to prevent an obvious failure
of justice. For that reason, an appellate
court should not reverse a trial court's
denial of a mistrial motion absent a clear
showing that the defendant suffered actual
harm" or that the court otherwise "abused
its discretion. Furthermore, when
inadmissible evidence erroneously comes
before the jury, an appellate court should
not order a new trial unless the error was
clearly capable of producing an unjust
[(Citations and quotation marks omitted).]
Applying these standards to the facts at hand, reversal is
not warranted. The judge gave an immediate and clear
instruction to the jury. The judge reminded the jury in his
final charge that "[a]ny testimony that [he] may have had
occasion to strike is not evidence and shall not enter into [the
jury's] final deliberations. It must be disregarded . . . ."
Under these circumstances, we find no mistaken exercise of the
judge's broad discretion.
The State called Jordan Jeffer, a detective with the Union
County Prosecutor's Office assigned to the gangs, guns, drugs,
and violent crime task force, as an expert in the field of
narcotics and narcotics distribution. Defense counsel objected
"for essentially appellate purposes." He argued that the use of
an expert was inappropriate because the jury could easily
understand the facts of the case and any probative value was
outweighed by potential for prejudice. The judge allowed the
questioning to continue.
The prosecutor asked:
Q: [A]t this time I'm going to place before
you and the jury a hypothetical question.
And after a hypothetical question I will ask
you certain general questions relating to
that hypothetical question.
Assume you observed an individual in a
high narcotics area being approached by an
individual on the street. Assume the
individual has a brief conversation with
this person and immediately walks with him
over the steps of a public housing complex.
Assume that on the steps of this housing
complex is a soda can which the individual
picks up and carries with him.
Assume the individual is observed
screwing the top of the can open like a jar
and the other person motions to him with two
fingers. Assume the individual with the soda
can reaches into the soda can and pulls out
a small item and hands it to the other
person. Assume that the person takes the
item and hands over U.S. currency to the
individual with the soda can.
Assume they part ways and they are both
subsequently arrested. Assume the soda can
is retrieved and contains 17 glassine
envelopes of heroin. Assume these envelopes
are stamped shrimp and broccoli. Assume he
also has on him $157 in denominations of 22
1s, 5 5-dollar bills, 3 10-dollar bills, and
4 20-dollar bills.
Assume the person who obtained the item
from this individual is also arrested and is
searched and is found to possess two
glassine folds of heroin also stamped shrimp
Based on the facts I have given to you
in this hypothetical do you have an opinion
as to whether the man with the soda can in
the hypothetical question possessed those
narcotics for personal use or for
A: I do.
Q: And what is your opinion?
A: Based on the hypothetical . . . my
opinion is that the man with the soda can
possessed those drugs with the intent to
Jeffer then identified "seven factors" upon which he based his
opinion. He described, among other things, the manner in which
the drugs were packaged, the significance of the marking on the
packages and the use of a "stash" can with a screw-off top. As
he did, Jeffer frequently used the term "in this case."
Defense counsel objected at sidebar to Jeffer's use of the
term "in this case." The judge immediately gave a curative
instruction, advising the jury that Jeffer's responses were made
to the hypothetical question posed, and should not be "confused
with the case that is before you." Defendant argues before us
that the judge erred in admitting any expert testimony and in
permitting the State to utilize an overly suggestive
"Admission of expert testimony on drug possession and
distribution techniques is permissible when reasonably required
to assist jurors in understanding subjects that are beyond the
ken of an average layperson." State v. Nesbitt, 185 N.J. 504,
507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)). It is
well established that "the nature and purpose of the possession
of illegal drugs is a subject within the specialized knowledge
of experts and not something generally known by persons of
ordinary understanding." Odom, supra, 116 N.J. at 73.
The State may ask an expert "a hypothetical question
mirroring the facts of the case, even though" the question may
be framed "'in terms of ultimate issues of fact.'" Nesbitt,
supra, 185 N.J. at 507 (quoting Odom, supra, 116 N.J. at 81).
"The hypothetical question should clearly indicate that it is
the witness' opinion that is being sought and that that opinion
was formed assuming the facts and circumstances adduced only at
trial." Odom, supra, 116 N.J. at 82. The trial court must
instruct the jury "on the proper weight to be given to an expert
opinion and to emphasize that the ultimate decision about a
defendant's guilt rests solely with the jury." Nesbitt, supra,
185 N.J. at 513.
We fail to see the necessity for the continued, pervasive
use by the State of expert testimony in drug prosecutions where
the factual testimony is straightforward and the inferences
suggested therefrom obvious. However, we cannot conclude that
admission of Jeffer's testimony was reversible error. R. 2:10-
In this case, the judge appropriately instructed the jury
before Jeffer testified regarding the use of expert testimony
and repeated the instruction again at the end of the case in his
general charge. Although Jeffer used the phrase "in this case"
in his responses to the hypothetical, taken as a whole, and
particularly in light of the judge's curative instruction, the
testimony did not express an opinion on the ultimate question of
defendant's guilt, and therefore did not constitute reversible
error. Odom, supra, 116 N.J. at 79.
Moreover, the strength of the State's case was substantial.
Staten re-iterated the testimony he gave at the pre-trial motion
in a consistent fashion before the jury. Succinctly stated,
Staten actually observed a hand-to-hand transaction between
defendant and Pinks. He identified both men in court.
Detective Black testified before the jury regarding his stop of
Pinks' vehicle and the seizure of two glassine envelopes of
drugs from Pinks that bore distinctive markings. Detective
Alston also testified before the jury regarding his arrest of
defendant and the seizure of narcotics in the soda can that
Staten had described. Those narcotics bore the same distinctive
markings, and Alston recovered $157.00 in various denominations
In sum, the admission of Jeffer's testimony does not "raise
a reasonable doubt" that it "led the jury to a result it
otherwise might not have reached." State v. Jordan, 147 N.J.
409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336
(1971)) (internal quotation marks omitted). Reversal is not
Following the conclusion of the State's case, counsel for
Pinks moved for acquittal arguing that the evidence was
insufficient to find his client guilty beyond a reasonable
doubt. The judge denied the motion and Pinks elected not to
Defendant testified and acknowledged his presence at the
scene. However, defendant stated that when the police arrived,
they asked if the soda can was his. Defendant denied it was his
and told the police he did not know whose can it was.
Defendant claimed he was playing dice with others in the crowd
and the money in his pocket was from his winnings.
At the conclusion of all the evidence, neither defendant
nor Pinks moved for a judgment of acquittal, and neither moved
for judgment notwithstanding the verdict (j.n.o.v.) nor for a
new trial after the verdict. Defendant now argues the judge
erred in denying his motion for j.n.o.v. because the verdict was
against the weight of the evidence.
Defendant's failure to move for a new trial bars our
consideration of this argument on appeal. See R. 2:10-1 ("the
issue of whether a jury verdict was against the weight of the
evidence shall not be cognizable on appeal unless a motion for a
new trial on that ground was made in the trial court"). Even if
defendant had preserved the issue properly, any motion attacking
the sufficiency of the evidence would have been properly denied
because the substantial proofs we alluded to above clearly
supported the jury's verdicts. Moreover, "[t]he trial court's
ruling on such a motion shall not be reversed unless it clearly
appears that there was a miscarriage of justice under the law."
R. 2:10-1. There was no "miscarriage of justice" in this case.
Defendant argues the trial court abused its discretion in
failing to articulate adequate reasons for imposing an eight-
year period of incarceration on the second-degree offenses and a
four-year period of incarceration on the third-degree offenses.
Because of his prior record, defendant was subject to a
mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). That
section also mandates "the imposition of a minimum term . . .
fixed at, or between, one-third and one-half of the sentence
imposed by the court or three years, whichever is greater
. . . ." Ibid. The judge found aggravating factors three, six,
and nine. N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), (6) (the
extent of defendant's prior record and the seriousness of the
offenses), (9) (the need to deter). He found no mitigating
factors. N.J.S.A. 2C:44-1(b). The judge imposed an aggregate
sentence of eight-years' imprisonment with a four-year period of
parole ineligibility. It was the precise sentence defense
In reviewing a "sentence challenged for excessiveness[,]
[t]he reviewing court is expected to assess the aggravating and
mitigating factors to determine whether they 'were based upon
competent credible evidence in the record.'" State v. Bieniek,
200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334,
364 (1984)). When the judge has followed the sentencing
guidelines, and his findings of aggravating and mitigating
factors are supported by the record, an appellate court will
only reverse if the sentence "shocks the judicial conscience" in
light of the particular facts of the case. Roth, supra, 95 N.J.
at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
In this case, the aggravating factors found by the judge
were adequately supported by the record. As to aggravating
factor three, the trial judge found "a lack of success in prior
diversionary programs . . ., prior drug use, prior crimes of
similar nature, [and a] lack of stable employment." As to
factor six, the judge noted the current conviction was
defendant's "fifth indictable." In finding aggravating factor
nine, the judge noted defendant's "failure to appreciate the
gravity of the offense" and his "extensive record".
As to each count of the indictment for which defendant was
convicted, the judge selected a term of years that was
approximately the mid-point of the permissible sentencing range.
The sentences imposed do not shock our judicial conscience.