On appeal from the Superior Court of New Jersey, Law Division, Union County.
Before Judges Shebell, Wallace and Kleiner.
The opinion of the court was delivered by SHEBELL, P.J.A.D.
Defendant, Jose Ribalta, was convicted by a jury of third degree distribution of a controlled dangerous substance (heroin), (N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3)), count one; and third degree distribution of that substance within 1,000 feet of school property, (N.J.S.A. 2C:35-7), count two. On May 21, 1993, defendant was sentenced to four years of imprisonment, with a three year period of parole ineligibility on count two. Count one was merged into count two. Also imposed were a $35 forfeiture, $1000 Drug Enforcement Demand Reduction penalty, $50 laboratory fee, and a $50 Violent Crimes Compensation Board penalty.
In his brief on appeal, defendant raises the following legal arguments:
THE MOTION JUDGE AND TRIAL JUDGE VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES IN PRECLUDING DISCLOSURE OF THE DETECTIVE'S SURVEILLANCE POINT AND IN LIMITING UNDULY DEFENSE COUNSEL'S ABILITY TO EXPLORE VITAL FACTS ABOUT IT (U.S. CONST. AMEND. VI, XIV; N.J. CONST. OF 1947, ART. I, P 10).
THE STATE, THROUGH ITS CHIEF WITNESS, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND HIS RIGHTS UNDER FORMER EVID. R. 55 BY ELICITING REPEATED TESTIMONY CONNECTING DEFENDANT TO A "REPUTED NARCOTICS TRAFFICKER" (U.S. CONST. AMEND. XIV; N.J. CONST. ART I, P 1).
THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT ABOUT IMPERMISSIBLE AND CONSTITUTIONALLY-PROTECTED TOPICS AND HIS REPEATED SUMMATION REMARKS RIDICULING THE DEFENSE DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, P 1).
On January 28, 1993, the court held an in-camera hearing, on the State's pretrial motion, based on State v. Garcia, 131 N.J. 67, 618 A.2d 326 (1993) and State v. Zenquis, 131 N.J. 84, 618 A.2d 335 (1993), to withhold the location of the surveillance site of the drug sale.*fn1
Although defendant argued that there was a substantial need for the information, the court ruled that a substantial need for the exact location had not been demonstrated. Defendant was to be permitted to question the detective on cross-examination, at trial, about the distance, angle, elevation, whether the detective's view was obstructive and whether he used binoculars, glasses or other devices.
On February 10, 1993, an additional pre-trial conference was held on the limits of defendant's entitlement to cross-examination regarding the surveillance location. The Judge decided to wait to hear the detective's testimony before making a ruling. The Judge also held a hearing to determine whether the State could elicit testimony regarding the detective's observation of defendant giving a large sum of money to a known drug dealer, prior to the sale of heroin. The Judge reserved this determination for trial as well.
On March 8, 9, 10, and 11, 1993, the trial took place. On March 9, 1993, the Judge held an in-camera hearing and ruled that the only additional information about the surveillance location defendant would be entitled to was whether the observation was made from an occupied structure. The Judge also ruled that the detective could testify to his observations pertaining to the defendant's flashing of money at passing vehicles, and that a similar wad of money was found on another individual by a different detective.
It was elicited at trial that on November 1, 1991, two detectiveS of the Elizabeth police department were conducting a surveillance between 11:00 a.m. and 1:00 p.m. at the intersection of Second and Pine Streets, from a concealed location. The surveillance was made from an occupied structure at a 60 degree elevated angle from the corner, at a distance of 75 feet. Binoculars were used at certain times to corroborate the detective's observations.
A map of the City of Elizabeth and a detective both indicated that Second and pine streets are within the thousand foot area of a school zone. The defense stipulated that the events observed were within a school zone, but it did not stipulate that the school buildings were used for school purposes.
At around 12 noon, the detective saw a male, standing on the southwest corner of Second and Pine streets, remove a large sum of currency from his coat pocket and display it to persons standing around him and then put it back in his coat pocket. The detective testified that the money, folded in half, was about one-half to one inch thick.
The detective described the male, later identified as Jose Ribalta, as a dark skinned male of Hispanic descent. The detective testified that at one point the suspect removed his baseball cap and his receding hairline was observed. The suspect had a thin to average build, full beard and mustache. He was wearing a long puffy quilted pea type tan coat, beige pants and brown boots. With the exclusion of the clothing, the defendant looked the same at trial as he did on November 1, 1991. No one else present at the scene fit that description.
After the initial display of money, the detective saw a car stopped at the intersection about to make a left hand turn. The defendant took a glassine envelope from his pocket and displayed it to the driver. The detective used binoculars to confirm that the object was in fact a glassine envelope, which the detective believed to be packaging for heroin. The detective testified that the driver of the car "completely blew Mr. Rivalta [sic] off indicating with his hand and a no shaking his head back and forth meaning [the detective] presumed he did not want to purchase any drugs." For approximately thirty minutes, the detective observed as defendant continued to attempt to wave vehicles down by showing heroin to the vehicles as they passed. None of the motorists, within that thirty minute period, bought from the defendant.
After thirty minutes, the detective saw a Mitsubishi van enter the intersection. The detective claimed that the operator was a reputed narcotics trafficker. The defense objected to this testimony, and after a lengthy argument, without the jury, the Judge allowed the testimony. The detective testified that at approximately 12:45 p.m., Harry Benson came out of a vehicle and approached the defendant. The defendant gave Benson the wad of money he had displayed earlier. Benson then entered the Pioneer Homes complex. He left at approximately 12:52 p.m. and reentered the van. Over defense objection, the detective gave the following testimony on the "general practices of drug distributors:"
In most cases drug dealers will not keep a large sum of drugs on them, especially in a hot area like Second and Pine Street. They will maintain a stash location where the quantity will be concealed. They'll only utilize one of a given product, whether it be cocaine or heroin, at a time because it's easily destroyed or discarded if the police come into the area.
Another detective testified that she received a radio transmission at about 12:45 p.m. which caused her to stop a vehicle two or three blocks from Second and Pine streets. She testified that there were three males in the van, Harry Benson, Maruth Bamba, and Elijah Rhodes, whom she placed under arrest. She searched Benson and found a wad of money, approximately one inch thick, folded over and held by a rubber band, in his jacket pocket.
At about 12:47 p.m., the detective doing the surveillance of Ribalta saw a stocky, average-sized Hispanic man with long dark pony tail, a mustache and the beginnings of a beard, walk up to the defendant. This man was later identified as Gilberto Santos. After a brief conversation, Santos gave the defendant two pieces of what the detective believed to be paper currency. The defendant removed a small white object from his coat pocket and handed it to Santos. The detective testified that based on his experience and training this was a narcotics transaction.
After the exchange, Santos began walking north on Second street. The detective notified the surrounding police units of the transaction and gave a complete description of Santos. A detective arrested Santos a few minutes later, one block over from Pine Street. As the detective approached Santos, Santos threw away what appeared to be a glassine envelope of suspected heroin.
Defendant was then arrested, patted down for weapons, placed in handcuffs and put in the police car. A search of his person yielded $35 in U.S. currency. There were no narcotics found in the area or on the defendant. The laboratory's certificate of analysis reflected that the envelope seized from Santos contained .042 grams of heroin. Santos testified at trial that he had bought a bag of heroin from a black male "around the projects," but could not say whether the person was in court.
Defendant testified that on November 1, 1991, he was living above a small store where he worked at Second and Pine streets. On that morning, the defendant took the boss' son to school, and then stood in front of the store until the boss showed up at about 10:30 p.m. The defendant remained outside picking up papers while his boss sat on a bench. He then went with another person to get a beer. After they returned, the defendant said he was standing outside drinking his beer and talking to people, when a police officer put a revolver to his back, took him out to a police car, and searched his clothing and the area. The search included the corner and across the street "even in the grass, the weeds, the trash, everything." He said the police seized $5 from his pocket, and later found about $30 in his wallet. He denied that he gave a large sum of money to anyone, displayed heroin to anyone, or sold heroin to Santos.
The defense claims that the trial court abused its discretion in concealing the location of the surveillance site and in limiting ...