On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Judges Michels, Stern and Keefe.
The opinion of the court was delivered by
Tried to a jury, defendant Harry Kittrell was convicted of distribution of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (First Count), and possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1) (Second Count).*fn1 The trial court denied defendant's motion for a new trial and granted the State's motion to sentence defendant to an extended term under N.J.S.A. 2C:43-6f. The trial court merged defendant's conviction for possession of cocaine under the Second Count with his conviction for distribution under the First Count, and committed defendant to the custody of the Commissioner of the Department of Correction for ten years with a five-year period of parole ineligibility.*fn2 In addition, the trial court assessed a $1,000 Drug Enforcement Demand Reduction penalty, a $50 forensic laboratory fee and a $30 Violent Crimes Compensation Board penalty and suspended defendant's New Jersey driver's license for twenty-four months. Defendant appealed.
According to the State's proofs, on July 6, 1990, Detective Sergeant Michael Mordaga of the Hackensack Police Department's Narcotics Squad met with Hackensack Patrolman Gutierez. Detective Mordaga wanted Officer Gutierez to purchase drugs as an undercover officer because he "was not known to anyone in the community at that time." On July 9, 1990, in the early evening, Detective Mordaga again met with Officer Gutierez. At that time, Detective Mordaga supplied Officer Gutierez with a "hospital scrub type uniform" from Hackensack Medical Center, which is located a few blocks from the housing projects where Officer Gutierez was going to make his buy. Detective Mordaga also gave Officer Gutierez two $10 bills, which Detective Mordaga had photocopied previously.
At about 8:10 p.m. that day, while it was still light, the officers drove in an unmarked van to the area where Gutierez was to purchase drugs. Detective Mordaga parked the unmarked van on Newman Street, approximately one block from the Railroad Avenue apartments, so that it would appear that Officer Gutierez was a hospital employee seeking to buy drugs. After leaving the van, Officer Gutierez walked down Newman Street, cut through some buildings, and then observed four to six men congregating in front of 69 Railroad Avenue. He immediately recognized defendant and his brother. He approached the group of men and asked if "anybody has anything." Defendant responded: "No problem, 20 bucks." Officer Gutierez then gave defendant the money, and defendant gave him two bags taken from the pocket of his shorts. Before leaving, Officer Gutierez asked defendant his name. Defendant responded "Big O, that's all you need to know."
Officer Gutierez returned to the van and told Detective Mordaga that he had purchased two bags of suspected drugs. Subsequent testing of the contents of the two bags revealed that they contained cocaine. Officer Gutierez also provided a physical description of the individual who had sold him drugs and indicated that the individual had identified himself as "Big O." Detective Mordaga suspected that defendant was the man who handed Officer Gutierez the bags of cocaine both because of Officer Gutierez's physical description of the man and because he knew defendant's street name was "Harry O." Detective Mordaga then drove the unmarked van past 69 Railroad Avenue. Upon pulling by that location, Detective Mordaga observed defendant, whom he had known for about ten to eleven years, and his brother Chris Kittrell. Officer Gutierez identified defendant as the one who had sold him the cocaine.
Hackensack Patrolman Toomey had been advised by Hackensack Detective Sergeant Robert Wright, who had previously signed a complaint against defendant, that an outstanding arrest warrant had been issued for defendant on June 15, 1990. On July 10, 1990, Officer Toomey observed defendant outside the apartment building of 69 Railroad Avenue. Upon seeing defendant, he called for back-up and proceeded to arrest defendant. As the officer brought defendant to the police car, defendant dropped a stack of bills totalling $109 on the ground, which Officer Toomey retrieved. Among the $109 were the two "marked" bills that Officer Gutierez had used to make the drug buy from defendant the day before.
In order to protect Officer Gutierez's cover and the ongoing undercover investigation, a complaint for the July 9, 1990 drug sale was not filed until October 7, 1990. Hackensack Patrolman Thomas Aiellos, who knew of the warrant and who also knew defendant, observed defendant in front of 60 Newman Street at 8:25 p.m. that evening. After he called for backup, Officer Aiellos approached defendant, told him about the warrant, advised him that he was under arrest and read defendant his Miranda rights. At that point, defendant became "annoyed," denied that any warrant existed, resisted being handcuffed, and, after being subdued by the backup units, cursed and hollered at the police both at the scene and at police headquarters. Defendant was carrying $127 in cash and a pager when he was arrested.
Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:
I. THE ADMISSION OF THE LABORATORY CERTIFICATE INTO EVIDENCE DESPITE DEFENDANT'S TIMELY NOTICE THAT THE RELIABILITY OF ITS CONTENTS WOULD BE CONTESTED AT TRIAL VIOLATED THE PROCEDURES SET FORTH IN N.J.S.A. 2C:35-19c AND DEFENDANT'S RIGHTS TO CONFRONTATION AND A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
II. THE TRIAL JUDGE ERRED IN DENYING A MISTRIAL AFTER THE JURY HEARD SERGEANT MORDAGA'S ARREST ON CHARGES OTHER THAN THOSE IN THE PRESENT CASE.
III. THE INACCURATE AND OUT-DATED JURY CHARGE ON REASONABLE DOUBT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. (Not Raised Below).
IV. THE INSTRUCTION THAT THE JURORS CONTINUE DELIBERATIONS, GIVEN TWO DAYS AFTER THEY ANNOUNCED THAT THEY HAD REACHED AN "IMPASSE" AND WITHOUT ANY INQUIRY AS TO WHETHER FURTHER DELIBERATIONS COULD BE FRUITFUL, DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.
V. THE ABSENCE OF GUIDELINES AT THE TIME THE OFFENSE WAS COMMITTED RENDERS THE IMPOSITION OF AN EXTENDED TERM PURSUANT TO N.J.S.A. 2C:43-6F AN EX POST FACTO VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. U.S. CONST., ART. I, SEC. 10, CL. 1; N.J. CONST. (1947), ART. IV, SEC. 7, PAR. 3.
VI. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
Defendant, in a supplemental pro se brief, raises the following additional issues:
I. THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY REGARDING THE PAGER IN THAT THE JURY WAS REQUIRED TO DRAW A DOUBLE INFERENCE (i.e., that there was a pager, and its ...