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State v. Herrera

May 11, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE HERRERA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-01-0115-D.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted April 26, 2006

Before Judges Stern, Grall and Kimmelman.

Defendant was charged with possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2) (count two); possession with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count three); and use of a paging device while engaged in the commission of, or an attempt to commit, certain crimes, N.J.S.A. 2C:33-20 (count four). After his motion to suppress the evidence was denied, defendant was convicted on counts one, two and four. On January 29, 2004, we affirmed defendant's conviction for possession of a controlled dangerous substance, but reversed the other convictions and remanded for a new trial on counts two and four. We concluded that admission of hearsay evidence conveyed to, and reported by, the investigating detective to another detective could not be deemed harmless error with respect to those convictions.

Defendant was thereupon retried and convicted of possession of a controlled dangerous substance with intent to distribute (count two),*fn1 but found not guilty of illegal use of the paging device (count four). He was sentenced to seven years in the custody of the Commissioner of the Department of Corrections for the possession with intent to distribute. The judge also imposed the requisite fines and suspended defendant's driver's license for six months.*fn2

On this appeal defendant argues:

POINT I

THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. HERRERA POSSESSED THE COCAINE WITH THE INTENT TO DISTRIBUTE AND THE GUILTY VERDICT ON THAT CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

(Not Raised Below)

POINT II

THE TRIAL COURT ERRED IN FAILING TO DETERMINE WHETHER MR. HERRERA VOLUNTARILY WAIVED HIS RIGHT TO WEAR CIVILIAN CLOTHING AT TRIAL WHICH WAS A VIOLATION OF MR. HERRERA'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE.

POINT III

THE TRIAL COURT ERRED IN REFUSING TO RE-HEAR DEFENDANT'S PRO-SE MOTION TO SUP[P]RESS THE DRUGS SEIZED FROM DEFENDANT.

POINT IV

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. POINT V UNDER THE NEW JERSEY SUPREME COURT'S RECENT DECISIONS IN STATE V. NATALE AND STATE V. ABDULLAH, THIS CASE MUST BE REMANDED TO THE TRIAL COURT FOR RESENTENCING CONSIST[E]NT WITH THOSE OPINIONS.

I.

The trial proofs reveal that on January 9, 2001, Detective Christopher Barber of the Atlantic City Police Department received information from Detective James Brennan requiring his "assistance at the Tropicana [casino] bus depot."*fn3 At Brennan's direction, Barber went to the Tropicana. There he "stopped . . . and pat[ted] down" defendant and found a "knotted sandwich bag with white powder" and a "folded piece of tinfoil," which also contained white powder. Both specimens "tested positive for cocaine." Defendant also possessed a Greyhound bus ticket from New York to Atlantic City, $138 in currency, and a pager. The gross weight of the cocaine in the "sandwich baggie" was 28.83 grams.

The State presented the testimony of Detective Ronald DiGiovanni as an expert in the field of illegal narcotics. In response to a hypothetical question, DiGiovanni opined that it appeared defendant "just came back from New York after purchasing cocaine . . . to distribute it," and that the amount of cocaine in the plastic bag was "more than someone would have for personal use if they are hanging around a bus station at a casino." Detective DiGiovanni testified that it would appear that someone with that much cocaine who had arrived on a bus two hours earlier came to the casino to "get rid of it and sell it and make money."

Detective DiGiovanni also opined that the small foil package had about one gram of cocaine in it, and that based upon its size, it was probably for defendant's "own personal use." He said a person caught with that amount of cocaine would only be charged with possession, and not intent to distribute, because the amount was too small. The detective further testified that a pager is a "valuable tool" in the drug business because it enables a dealer to "screen" his calls and decide whether to deal with the caller. The pager also allows the dealer and the caller to use a "code" to communicate the amount requested and the price.

Detective DiGiovanni further testified that the bus ticket from New York was "important because New York is a source city" to which dealers go to buy narcotics because they are less expensive there. The detective opined that defendant must have spent at least approximately $650 on the drugs.

II.

Defendant first contends that the State failed to prove beyond a reasonable doubt that he possessed cocaine with the intent to distribute and ...


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