State v. Brown, DOCKET NO. A-5386-17

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER T. BROWN, Defendant-Appellant.

DOCKET NO. A-5386-17

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted June 2, 2021

June 16, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Haas, Mawla, and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 16-05-0181.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Renee Robeson, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, on the briefs).

Appellant filed a pro se supplement brief.

PER CURIAM

Defendant Christopher T. Brown appeals from his convictions of third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2(a)(1), N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). We affirm.

On March 28, 2016, police responded to a call regarding a possible drug overdose and discovered Mitchell Levine deceased. The cause of death was later determined to be a heroin overdose. Near Levine's body, police recovered heroin, drug paraphernalia, and his cell phone.

Pursuant to a search warrant, Hunterdon County Prosecutor's Office Detective Brian Jados analyzed the information from the cell phone and identified twenty text messages sent on March 24 and 25, 2016, between Levine's device and a number ending in 1129, which had no associated name. However, the first message sent from Levine to 1129 said, "Hi Chris. How is it going?" Then the following conversation took place:

1129: You still want the two.

Levine: No, I can't swing the money between my hospital bills and my car. I don't know how I'm even going to pay all of them. Can you do one?

1129: Yeah.

Levine: Call me.

Levine: What time do you think you'll have it?

1129: Probably going to be some time later because now my man saying he waiting on it himself.

Levine: Okay. Let me know when you hear anything.

1129: Got you.

Levine: Awesome.

Levine: Did you get it?

1129: On my way.

Levine: How long?

1129: 45 minutes.

Levine: K.

1129: Pulling up.

Hunterdon County Prosecutor's Office Lieutenant Ryan Neiber examined the entirety of the thread and determined the conversations could be evidence of drug activity. The conversations between 1129 and Levine showed the last drug transaction occurred three days before Levine's body was discovered.

Pursuant to a communications data warrant, police obtained permission to use Levine's telephone and pose as Levine. Neiber began communicating with1129 in order to arrange a drug buy. On April 3 and 4, 2016, the following text correspondence occurred:

1129: Hey, Mitch, how is it going need to borrow $500,000 till Wednesday, but I'll settle for $500 if possible.

. . . .

1129: Hey, what's up, Mitch? I still need that favor if you can help me out. Let me know if you can while it's still early, okay?

1129: You up yet? Did you get my message? Let me know something if you can't or can or you can just need to know.

Neiber (as Levine): Hey Chris, how is it going?

1129: What's up, Mitch?

Neiber: Will you be able to get here tomorrow?

1129: Weather supposed to be bad but I'll try.

Neiber: Let me know as soon as you can.

Neiber: Weather is going to be bad.

1129: Okay. Will do. What you getting into today?

Neiber: Can you get to?

1129: Yeah, I got it.

Neiber: A long way back from CT.

1129: Okay. Let me know when you get home.

Neiber: Going to be late.

1129: What time do you think?

Neiber: My friend driving we just left and he's looking to stop for food.

1129: Okay. What times are you thinking you'll be here?

Neiber: Around 11:00.

Neiber: Just left.

Neiber: I looked at weather looks like just showers in the morning.

Neiber: You thin [sic] you can be here by 10:00, 11:00?

1129: Well, we'll try in the morning.

Neiber: Okay.

1129: I might be up by you so still let me know when you get home, okay.

Neiber: K. Cool.

Neiber: Hey Chris, we've been at eh [sic] garage for about [two] minutes with my friend's car. It's not looking go [] for tonight. Are you still out my way?

Neiber: And my phone is going to die.

1129: Yeah, but I didn't bring anything with me.

Neiber: Okay. Looks like tomorrow anyway. This guy is swapping out the alternator for us.

Neiber: Hope to be back on the road soon.

1129: No problem.

Neiber: I will get you in the morning. Thanks.

1129: Hey, did you make it home yet?

Neiber: What a night. You awake?

1129: What's up? Yeah. What's up?

Neiber: You going to make it out this morning?

1129: What you need.

Neiber: Two or three.

1129: Two or three[?]

Neiber: Can you do three if not two.

. . . .

1129: How much you got?

Neiber: 700.

. . . .

1129: Give me a sec.

Neiber: K. I'm counting on you.

1129: Let me check. Are you going to be able to do what I asked you?

Neiber: I got you.

1129: Okay. Let me see if [I can]. The guy I got the last stuff from I know he's not going to [do] that though because he told me he pays 175, $175 for that.

Neiber: Then two, I'm starting to get sick.

. . . .

Neiber: Let me know when you hear anything.

Neiber: Did you get it?

Neiber: Please answer me.

Neiber: Chris, I hate to keep bothering you but just let me know if you're going to make it here today. Thanks.

1129: On my way, Mitch. I fell asleep.

Neiber: Thanks.

1129: Oh, I hear getting now do you still want three cause he said he'll do it.

Neiber: Yes, thanks.

1129: Okay. See you in a few.

Neiber: Thanks.

Neiber: You getting close?

. . . .

1129: Had to stop to get my tire checked.

Neiber: K. How long?

1129: About [forty-five].

Neiber: K.

1129: Ten minutes.

Neiber: K.

Neiber: Come in. I have my electrician here.

1129: Outside.

Neiber: Come in.

1129: Garage closed.

Neiber: Come around back.

1129: Huh?

Neiber: Around my house.

At that point, defendant exited his car and walked toward the back of Levine's residence and was confronted by a SWAT team. After police identified themselves, defendant attempted to flee, but was apprehended. Defendant was arrested and searched. Police recovered three bricks of heroin and two cell phones from his person.

At police headquarters, defendant voluntarily waived his Miranda¹ rights, and gave an audio recorded statement. Defendant admitted knowing Levine and supplying him heroin.

On May 12, 2016, a grand jury indicted defendant for conspiracy to possess CDS with intent to distribute on April 4, 2016, contrary to N.J.S.A. 2C:5-2(a)(1), N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count one); possession of CDS with intent to distribute on April 4, 2016, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and two counts of obstruction of the administration of law, contrary to N.J.S.A. 2C:29-1(a) (counts three and four). On September 15, 2016, a grand jury returned a second, separate indictment charging defendant with strict liability for drug-induced death, contrary to N.J.S.A. 2C:35-9(a) (count one); and distribution of CDS or possession with intent to distribute on March 26, 2016, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two).

Originally, defendant was represented by private defense counsel. In May 2017, counsel moved to be relieved.² Counsel explained he was only retainedto defend the charges in the first indictment, and with respect to those charges, a plea bargain had been offered. Subsequently, however, the second indictment charged defendant with strict liability for a drug-induced death, and the State indicated it intended to use defendant's guilty plea on the CDS charges in the strict liability case. Defense counsel explained he was concerned about this development and thought "it would make sense to have the [Public Defender's Office] substitute in on both cases."

The motion judge asked defendant how he felt about the motion to be relieved, and defendant replied he "didn't know." The judge then explained why defense counsel sought to be relieved as follows:

I'm sure [private defense counsel] went through with you the ramifications if you pled guilty on the one, which was your intent today. It's my understanding you wanted to plead guilty, but you wanted new representation on the other case which, obviously has more significant consequences than the first one. What the [p]rosecutor has proposed is that he would . . . file a motion and attempt to use what was in that case, your guilty plea or whatever else, and I don't know all the details in that case, but the fact that if you pled to possession with intent to distribute, the deceased person, . . . he would then attempt to have the [c]ourt admit[ it] in the second case, the strict liability case. All right?

And then the [c]ourt . . . would hear argument and make a decision. So what [private defense counsel is] indicating is that it is probably better that one attorneyhandles both cases because they'll have a fuller understanding. They can speak to you about it and make recommendations to you[.]

Are you in agreement with that?

After further clarification, defendant explained he was satisfied with private counsel's services and wanted to plead guilty to the CDS charges, since that was the last date the State would accept a plea, and have the Public Defender represent him on the strict liability charge.

The motion judge also learned defendant lacked the funds to pay private counsel in either case. Private defense counsel explained as follows:

I have to be asked to be relieved. A certain amount was agreed to for pretrial services, and that full amount has not been paid, and the pretrial services in this case have been extensive, involving motion practice, extensive discovery review, and I don't even know how many times we've been to court already, pretrial.

. . .

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