On appeal from the Superior Court of New Jersey, Law Division, Union County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.
[262 NJSuper Page 554] Defendant appeals from convictions of possession of cocaine, N.J.S.A. 2C:35-5a(1); distribution of cocaine, N.J.S.A. 2C:35-5a(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3); possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6. Defendant was sentenced to concurrent terms of four years for the possession, five years with a two and one-half-year parole disqualifier for the distribution, five years with a two and one-half-year parole disqualifier for possession with intent to distribute, five years with a three-year parole disqualifier for possession with intent to distribute within 1,000 feet of school property, and eight years with a five-year parole disqualifier for employing a juvenile in a drug distribution scheme. Aggregate fines and penalties were $6,000 DEDR, $250 lab
fees, $150 VCCB and thirty months' suspension of defendant's driver's license. Thus, defendant's aggregate sentence was eight years with a five-year parole disqualifier, plus the additional fines, fees and suspension.
On December 7, 1988, a Plainfield police officer observed seven drug transactions on the corner of Berkman Street and East Sixth Street in the City of Plainfield. The officer observed a youth wearing a dark blue Los Angeles Raiders jacket and black cap approach cars which stopped in the middle of the street. The youth spoke to occupants of the stopped vehicles, accepted cash from them and then approached a man who was standing in a nearby house's driveway and wearing a white jacket, blue hat, jeans and carrying a cane. The man reached underneath the porch of the house, lifted a panel of plywood and extracted a yellow and black box. The man extracted items from the box and gave them to the youth, whereupon the youth delivered the items to the occupants of the stopped cars.
The officer observed this activity from a secret location approximately 150 to 200 feet from the transactions. His 20/20 vision was supplemented by ten-power binoculars making the transactions appear ten to fifteen feet distant.
At the surveillance officer's radioed direction, two police cars followed and pulled over one of the vehicles making purchases as it exited the neighborhood. The officers arrested its occupants. Police then moved in on the transaction area and found seven bags of crack cocaine in the box below a sheet of plywood under the porch of the house under surveillance. Police quickly identified and arrested seventeen-year-old B.W. as the youth involved in the seven transactions. B.W. was carrying $445 on his person at the time of the arrest. Police also identified and arrested defendant, Hassan Xavier Laws, as the man involved in the transactions. Defendant had seventy-one cents and a bag of crack cocaine (packaged differently from the cocaine in the box) on his person at the time of his arrest. Although one of the arresting officers testified that defendant possessed a
cane when he was arrested, jail records indicate that defendant did not have the cane when brought to the station.
During the presentation of defendant's charges to the Grand Jury, the prosecutor did not specifically list or announce the elements of each count listed above. He merely announced the charges at the beginning and the Conclusion of the presentation. The prosecutor did, however, ask the surveillance officer, the only grand jury witness, precise questions. In the course of questioning the officer, the prosecutor elicited information sufficient to satisfy all of the elements of each crime charged. When finished, the prosecutor later asked the grand jurors if they had any questions as to fact or law. The grand jurors had no questions.
Before trial, the court held a hearing, required by State v. Crudup, 176 N.J. Super. 215, 422 A.2d 790 (App.Div.1980), to determine whether trial testimony or discovery should reveal the location of the police surveillance point employed by the officer. Defense counsel was excluded from this hearing. After hearing testimony from the officers, the trial Judge decided not to reveal the location because of its continuing use as a surveillance post and the real threat of danger to police officers and the location's inhabitants should it become public knowledge. The Judge also concluded from the testimony that there were no obstructions to the officer's view and no problems with the angle of sight which would impugn the officer's observations. The Judge further stated that he would view the site himself, alone, to verify this Conclusion. He did so and made a record of his findings. Defense counsel also elicited these Conclusions from the observing officer on cross-examination at trial.*fn1
During trial, another State's witness testified that drug transactions involving two people, such as those witnessed by the surveillance officer, are common. He also testified, however, that one found possessing cocaine but no money, such as defendant at the time of arrest, is more probably a mere drug user and not a drug seller.
The defense submitted evidence that defendant had been babysitting for his sister's children until approximately fifteen minutes before the officer observed the drug transactions. Defendant's sister also testified that she gave defendant $15 and sent him to purchase groceries from a store on the corner where the transactions occurred, thus placing defendant at the scene when the officer observed the transactions. As defendant only possessed one bag of crack cocaine on his person at the time of his arrest, defense counsel argued in summation that defendant had squandered his grocery money on the purchase of the crack cocaine but was otherwise uninvolved in selling the drugs.
In the midst of the jury's deliberations, the foreperson submitted the following question to the court regarding Count Five, employing a juvenile in a distribution scheme: "Does the fact that Laws is an adult and [B.W.] is a minor mean that the adult has used that minor, or that the adult is automatically felt to have control over the juvenile?" Over the objection of defense counsel, the Judge answered the jury's question with a definition of "use" and an analogy to statutory rape.
Definition of use: To be put into service. To obtain an end.
And I'm going to give you an analogy. I'm not suggesting by means of this analogy that there is anything comparable or its to inflame or impassion. But, so that you understand between an adult and a minor, and I think that's what you're asking me about, what are the elements -- what's involved when the word "use" is employed in the statute. I'm going to give you an example in layman's terms of statutory rape, where you have an adult male and an underage female with respect to intercourse between them. And whereas the ...