On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, S-0328-3-00.
Before Judges Kestin, Eichen *fn1 and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Marc Corso, a North Bergen police officer was charged along with Giovanni Gallo, with third degree distribution of a controlled dangerous substance (CDS) (Count 1), N.J.S.A. 2C: 35-5a(1), and 5b(13); third degree possession of a controlled dangerous substance (Count 2), N.J.S.A. 2C:35-10a(1); and second degree official misconduct (Count 3), N.J.S.A. 2C:30-2. Gallo pleaded guilty and testified for the State. After a jury trial, defendant was acquitted of the drug charges contained in counts one and two, but convicted of the official misconduct charged in count three.
After the denial of his motion for a new trial, defendant was sentenced to four years probation and 100 hours of community service. Appropriate penalties were imposed. Additionally, defendant was precluded from ever holding a law enforcement position.
Defendant appeals his conviction and the State cross-appeals the imposition of a probationary term for a second degree crime. N.J.S.A. 2C:44-1f(2). We affirm defendant's conviction and remand for imposition of a state prison term.
On April 15, 1999, Corso was at the Drama Night Club. That same night, undercover officers from the Bergen County Prosecutor's Office Narcotics Task Force were present at the club, hoping to purchase drugs as part of an investigation into reported narcotics distribution. Inside, a confidential informant introduced Investigator David Borzotta to Giovanni Gallo so that the officer, acting undercover, could purchase a controlled dangerous substance from him. The investigator asked Gallo if he "could purchase cocaine that evening." Gallo told Borzotta to "check back with him" in one half-hour.
One half-hour later, Gallo told Borzotta that he could not get him cocaine, but could acquire "Ecstacy" for him. The officer replied that he was interested in the Ecstacy, and ordered two pills. Gallo told Borzotta and the informant to wait in the men's room. The informant did so, but the investigator followed Gallo instead because Gallo had told him that he was going to get the drugs from his "man." Borzotta saw Gallo approach defendant, and observed them speak briefly. Gallo and defendant then proceeded toward the men's room. By the time they arrived at the men's room, Borzotta had returned there as well.
While Borzotta waited outside, Gallo and defendant went into the men's room and emerged "less than a minute" later, at which time Gallo handed the undercover officer the Ecstasy. Borzotta inquired as to the price for the drugs and was told by defendant and Gallo simultaneously that they were owed $50.00. After the investigator handed Gallo the money, Gallo and defendant exited the area. Borzotta observed Gallo exchange money with defendant, who then walked away from Gallo. Borzotta then identified defendant to his fellow officers, who placed defendant under arrest shortly thereafter.
Gallo testified for the State pursuant to his plea agreement. Gallo had known defendant for three years prior to the night they were arrested. They met each other through a "mutual friend" and socialized mostly by "hanging out" at the same clubs. Gallo worked at the Drama Night Club as a "door man" whose primary responsibility was allowing people to enter and exit the club. He testified that on April 15, 1999, at approximately 10:00 p.m., defendant approached him at the club and informed him that he had drugs that he wanted to sell and, "[i]f anybody needed them, let him know." Gallo knew that defendant was a police officer.
Later that night, when Borzotta and the confidential informant approached Gallo and inquired about the Ecstasy, Gallo told them to wait by the men's room while he retrieved the drugs for them to purchase. Gallo then approached defendant and told him "I need two pills of Ecstasy." Defendant then accompanied Gallo to the men's room for the transaction. Gallo took the pills from defendant and, accompanied by defendant, met the undercover officer and his confidential informant outside the bathroom. Defendant had told Gallo that each pill cost $25.00 and Gallo related that information to Borzotta. The investigator handed Gallo the money, Gallo handed the money to defendant and the two men went their separate ways.
Detective Sharon Malone of the Prosecutor's Task Force was also present at the Drama Night Club on the night defendant was arrested. She witnessed defendant's arrest at the club and then proceeded to the Fairview Police Department later that night and took custody of defendant for processing. Defendant had $171.00 in his pants pocket and explained to Detective Malone that "he just carried that much money around." Defendant had no drugs on his person but, as the detective explained, it was typical of drug dealers to keep their "stash" in another location so if they are intercepted by law enforcement, they have nothing on their person.
Defendant testified on his own behalf. He stated that the night he was arrested, he went to the Drama Night Club with a friend to have a drink. The Club was very crowded with a lot of people, loud music, and strobe lights. Defendant denied that either he or anyone he was with possessed any Ecstasy at any time that evening. Defendant knew Giovanni Gallo from encountering him at other clubs and saw him that night standing near the men's bathroom. Defendant approached Gallo to say hello, and Gallo asked defendant if he could make change for a fifty-dollar bill. Defendant then took cash from his pocket and gave Gallo two twenty dollar bills and one ten. In exchange, Gallo handed defendant a fifty-dollar bill. *fn2 Defendant claimed that he then left Gallo and went to the bar for more drinks. Defendant denied meeting Borzotta at the ...