Drug Dealer Loses Appeal; No Parole Until 2016

COURT HOUSE — A convicted drug dealer currently residing in Bayside State Prison lost a recent appeal in which he claimed improprieties by the prosecutor and witnesses for the prosecution as well as an unfairly long sentence.
In March 2006, Katherine Curtin, of the Cape May County Prosecutor’s Office, launched an undercover investigation regarding Steven Hawk (a.k.a. Rasheed Amin), a suspected drug dealer who previously served time on distribution charges.
On seven occasions between March 30 and May 19 that year, Hawk either sold or arranged the sale of approximately 16 grams of cocaine to Curtin for $850.
Hawk was indicted on seven counts of third-degree (less than a half-ounce) distribution, four counts of third-degree conspiracy to distribute, one count of second-degree distribution (more than a half-ounce), and with being the leader (kingpin) of a narcotics trafficking network.
Hawk was acquitted on the kingpin charge, but convicted of the other 12 charges. He was sentenced on April 3, 2008 to 20 years in state prison with a 10-year minimum. His max release date is Sept. 1, 2020 and he becomes eligible for parole on Nov. 12, 2016.
Hawk appealed his case on Nov. 18, 2009.
On appeal, Hawk argued, among other things, that:
• Curtin referred to a prison photo of Hawk at trial identifying him as a prior offender to the jury
• A detective improperly testified as an expert that she decided Hawk was more than a street-level drug dealer
• The prosecutor made improper remarks during his summation
• The sentence was manifestly excessive.
On Fri., July 9, a three judge appellate panel upheld the lower court’s findings, noting that Hawk’s guilt was obvious and suggesting that he shouldn’t have done the crime if he didn’t want to do the time.
Regarding the prison photo, Hawk’s attorney asked the trial judge to either strike Curtin’s testimony from the record or instruct the jury to disregard the source of the prison photo. The judge allowed Curtin’s testimony to remain and postponed the jury instruction until the trial’s conclusion.
“You are not to consider the fact that any governmental agency that may have obtained such a photograph of the defendant as prejudicing the defendant in any way,” the judge told the jury. “The photograph is not evidence that this defendant has ever been arrested or convicted of any crime.”
The appeals court said it was satisfied that, “because the evidence of defendant’s guilt of the crimes for which he was convicted was overwhelming, any error here in failing to strike the testimony or give a curative instruction when requested was harmless.”
Next, Lieutenant Lynn Frame, of the county Prosecutor’s Office, testified regarding the kingpin charge that “we suspected that the suspect or the target was a little bit more advanced and more substantial than the street level dealer.”
The prosecutor then asked Frame, “Upon what did you base your decision that the conduct of Mr. Hawk or the subject was more than just a street level operation?”
She answered that a number of factors influenced her decision, but it was the prosecutor’s question that mattered.
“The phrasing of the question posed by the prosecutor improperly asked the witness the reasons for her ‘decision’ that defendant ‘was more than just a street level operation’,” the opinion stated. The appellate decision noted that expert opinion is not objectionable “as long as the expert does not express his opinion of defendant’s guilt.”
The judges admitted the testimony was improper, but noted that a reversal is only warranted if it was prejudicial enough to bring about an “unjust result.”
They concluded that because the jury only convicted defendant of “street level” charges of conspiracy and distribution and acquitted him of the kingpin charge, the testimony was not “clearly capable of producing an unjust result.”
Hawk’s attorneys also had a problem with some remarks from the prosecutor in summation, when he suggested that:
• Hawk “probably had a lot of customers, but we only heard about one customer. And the one customer was an undercover police officer.”
• The undercover officer was attempting “to purchase as much as she can within the financial limits of the task force.”
“The prejudice alleged is that the first comment suggested that defendant had engaged in other drug transactions with other customers and that the second comment suggested that defendant had the capacity to provide significantly higher quantities of cocaine that those purchased by Curtin,” the opinion stated.
The judges noted that, not every instance of misconduct in summation will require a reversal. There must be a palpable impact. Reversal is appropriate when the prosecutor’s conduct is so egregious that it deprived the defendant of the right to a fair trial.
Again, the standard doesn’t fit in this case because Hawk wasn’t convicted of the kingpin charges.
“As for the individual counts of distribution and conspiracy for which he was convicted, the evidence of his guilt provided by the testimony of the undercover officer who participated in each of the transactions was compelling,” the opinion stated. “Therefore, the comments by the prosecutor did not deprive defendant of a fair trial.”
Finally, regarding the “manifestly excessive” sentencing question, Hawk argued that in sentencing him to 20 years, the trial judge didn’t take into consideration that Hawk’s conduct did not cause or threaten anybody serious harm and he didn’t contemplate causing harm. Also, he argued the sentence would cause excessive hardship to his five dependent children.
“We are satisfied that the trial court did not err in failing to find these mitigating factors,” the court found. “Within a two-month period, defendant was involved in seven separate cocaine sales. This conduct can be readily perceived to constitute conduct which causes and threatens serious harm.”
“The loss of financial support for dependents caused by incarceration is common to all incarcerated defendants with dependents and does not, standing alone, constitute the excessive hardship that forms the basis for this mitigating factor,” the appellate judges concluded.