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State v. Holloway

March 15, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BISMALLAH HOLLOWAY, *FN1 DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication March 15, 1996.

Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered byVILLANUEVA, J.A.D.

Defendant appeals from his conviction of two counts of third degree distribution of cocaine, N.J.S.A. 2C:35-5b(3) (counts one and three); and two counts of third degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7 (counts two and four). We affirm.

On September 2, 1992, Detective Gary Nash of the Essex County Sheriff's Department, Bureau of Narcotics, while working in an undercover capacity accompanied another individual to a restaurant known as the Munchie Shop on Springfield Avenue, in Newark, New Jersey, where defendant worked. At that time, the person with Detective Nash, whom Nash termed a confidential informant, told defendant that he wanted to buy drugs from him. Defendant responded that he did not keep any at the Munchie shop. Defendant did say to "catch up with him later on," but Detective Nash did not hear where.

Later that day at approximately 5:25 p.m., Detective Nash went to an apartment on South 17th Street to purchase cocaine. At that location, which was within 1,000 feet of a school, the detective went up the stairs to the second floor with the confidential informant and knocked. Defendant answered the door. Detective Nash told defendant that he wanted to get seven "bottles," meaning seven vials of cocaine. Defendant told him to wait a minute, closed the door, and returned moments later with a bag that contained approximately seventy vials of cocaine. Defendant extracted seven vials from the bag and gave them to Detective Nash in exchange for $60. After completing the purchase, Detective Nash exited the area and met with a backup unit at a location in Irvington. He was shown a photograph and identified defendant as the person from whom he had just purchased cocaine.

On September 4, 1992, Detective Nash again was going to the apartment on South 17th Street when he saw defendant on the corner of 17th Street and Avon Avenue. At that time, Detective Nash was with Shawn Wilson. Defendant asked Nash what he needed, and Nash told defendant he wanted thirteen vials of cocaine. Defendant told the detective to wait there, which again was within 1,000 feet of a school, and walked north, leaving the detective's view before Nash subsequently saw defendant enter a house.

Defendant returned with thirteen vials of cocaine and told Detective Nash they would cost $160. The detective gave defendant $160 in bills which had been previously marked and photocopied. Detective Nash put the thirteen vials in his pocket and left the area. He returned to his vehicle and communicated with a backup unit, giving them defendant's location and a description of what defendant was wearing.

After receiving that information, Detective Ronald Tutela of the backup unit team went to that area and observed defendant standing on the corner of Madison and 17th Streets. Detective Tutela detained defendant until Detective Nash rode by the area and radioed that defendant was the person who sold him the cocaine on that day and on September 2. Defendant was then placed under arrest. A search of defendant revealed no drugs or money.

Shawn Wilson, defendant's friend and a convicted drug offender, testified as a defense witness. He claimed to have been with a person known to him as Alvin Lawson on September 2 at around 2:30 or 3:00 p.m. when he went to see defendant at the Munchie Shop. At that time he attempted to buy drugs from the defendant, who told him that he was not selling. Wilson then claimed that after leaving defendant he purchased drugs from someone named Chris. Wilson also claimed to have gone to defendant's house on September 4 and asked defendant if he was selling drugs, to which defendant replied he was not. Wilson claimed that Alvin Lawson was his uncle and was not a police officer, and at no time did he bring a police officer to buy drugs from defendant.

Defendant testified that between 2:00 and 2:30 p.m. on September 2, Wilson and Detective Nash came to see him at the Munchie Shop and Wilson asked him if he was selling drugs. Defendant replied that he was not. According to defendant, at the time later that day when he was supposedly selling cocaine to Detective Nash, he was still working at the Munchie Shop. He also said that on September 4 at around 12:00 p.m., he was home when Wilson and Detective Nash came to his residence and Wilson asked him again if he was selling. Defendant repeated that he was not and denied selling any drugs to Detective Nash.

Defendant admitted, however, that he had been convicted of illegally selling narcotics to an undercover police officer in 1991 but denied having sold them out of his home. In rebuttal, the State presented the testimony of a detective to whom defendant had sold narcotics in 1991. That detective testified that during the transaction defendant went into his house, came out, and then gave him two vials of cocaine.

On the basis of the foregoing evidence, the jurors convicted defendant of two counts of distribution of cocaine and two counts of distribution of cocaine within 1,000 feet of school property. The jury rejected defendant's theory that the State "set up" defendant with drug charges because they wanted to obtain information from him about his brother who was under investigation by the prosecutor's office at that time in connection with the shooting of a police officer. *fn2

The trial court granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and after merging the conviction on count one with the conviction on count two, sentenced defendant to the custody of the Commissioner of the Department of Corrections to an extended ten-year term of imprisonment with a mandatory minimum four-year term to be served without eligibility for parole. The trial court also merged the conviction on count three with the conviction on count four and sentenced defendant to a concurrent five-year term of imprisonment with three years to be served without eligibility for parole. The trial court imposed aggregate Violent Crimes Compensation Board (VCCB) penalties of $100, mandatory aggregate Drug Enforcement and Demand Reduction (DEDR) penalties of $2,000, aggregate laboratory fees of $100, and suspended defendant's driving privileges in New Jersey for a period of two years.

On appeal, defendant argues:

POINT I THE TRIAL COURT ERRED IN REPLACING A JUROR ...


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