On appeal from Superior Court, Law Division, Middlesex County.
Antell, Dreier and Villanueva. The opinion of the court was delivered by Antell, P.J.A.D.
[262 NJSuper Page 565] After a trial by jury, defendant was convicted of possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1), possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), distribution of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7. He now appeals.
According to the State's evidence, on August 13, 1990, at approximately 7:25 p.m., Detective James Marshall of the New Brunswick Police Department observed defendant sitting next to 148 Remson Avenue. As he watched, another person, later identified as codefendant Osvaldo Santos, walked up to defendant and handed him a $20 bill. Defendant walked to 148 Remsen Avenue, returned seconds later, and handed a glassine envelope to Santos who placed it in a Newport cigarette box. Lieutenant Tirch and Detective Lesley Levine responded to Marshall's radio call for assistance and arrested defendant and Santos minutes later. Detective Levine recovered from Santos the Newport cigarette box containing the glassine envelope that was later found to contain heroin. From defendant she recovered $288 in cash. In his radio call for assistance Marshall had described defendant as wearing a short-sleeved orange teeshirt.
Defendant testified that he was in the area to visit Anderson Torres for the purpose of discussing a job. Torres had not yet arrived home, and while defendant was speaking with Mirabel Ruiz, Torres' girlfriend, several policemen approached and frisked him. He testified that another man, evidently Santos, was arrested at the same time and placed into a police car. About five minutes later, the police returned and handcuffed defendant. Defendant also testified that he was wearing a long-sleeve black shirt with white stripes at the time of his arrest. He further asserted that all his clothes were held by the Middlesex County jail authorities while defendant was incarcerated and were returned to him after his release. Defendant also stated he wore a beard at that time.*fn1 Although he knew Santos from seeing him on the streets, he denied selling heroin to him that evening.
Four witnesses testified on defendant's behalf. Three of the witnesses swore to defendant's good character. Of these three, two were former employers. One of the former employers, Mr. Tappen, testified that in August 1990, defendant worked for him as a maintenance man and that on August 10, 1990, he had paid defendant the sum of $235.12 in wages. He also verified that defendant was wearing a beard on August 10, 1990. The other former employer, Mr. Cabezudo, testified that defendant also worked for him part-time in his auto body shop, and that he had paid defendant $100 for three days of work during the week that defendant was arrested.
Mirabel Ruiz verified that on August 13, 1990, defendant came to see her boyfriend, Anderson Torres. She told defendant that Torres was not home yet, and asked defendant to wait for him and have dinner. While they were talking, according to Ruiz, police officers came from behind defendant and searched him. The police left the scene but returned several minutes later and placed defendant under arrest. Ruiz also supported defendant's testimony that he was wearing a dark colored shirt that evening.
Following the presentation of defendant's evidence, codefendant Santos took the stand to testify, presumably in his own defense. However, in response to his attorney's questions he testified that he was a heroin addict and that on August 13, 1990, he bought the drugs found on his person for $20 from defendant, who, he said, was wearing an orange shirt. Santos also admitted to three previous convictions for possession of drugs, once with intent to distribute.
Although defendant's attorney cross-examined Santos as to the truth of his testimony, counsel was unaware of the fact that there was then pending against Santos a complaint for possession of a controlled dangerous substance (four or five bags of heroin) with intent to distribute. That complaint had been filed just one week before the date of Santos' testimony. The prosecutor acknowledges that if it had gone to the grand jury
Santos would have been indicted for possession with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. These facts were brought to the attention of the court on a motion for a new trial based on newly discovered evidence which was heard on the same day defendant was sentenced, April 8, 1991. At that time, counsel disclosed to the court the further fact that on February 6, 1991, the day following the jury's return of its guilty verdict against Santos and defendant, Santos entered into a plea agreement with the State as to the recently filed charge. Pursuant thereto, he was allowed to plead guilty to an accusation for simple possession of heroin on the understanding that he would not be prosecuted for the more serious school zone violation. In addition, the State agreed to recommend a custodial sentence not to exceed 180 days, to be served concurrently with any sentence he might receive for the offense of which he was convicted with defendant on February 5, 1991.
Defendant's motion for a new trial was denied. His application for a hearing to determine whether Santos' surprise testimony at the trial was given in accordance with an understanding with the prosecutor that he would receive favorable consideration on the pending school zone drug charge was also denied. The basis of defendant's argument was that had he known of the outstanding charge pending against Santos it would have been proper for him to bring this to the attention of the jury to affect the witness's credibility. Since that information would have been exculpatory, defendant argued that it was ...