On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-10-0594.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2006
Remanded by Supreme Court February 26, 2007
Submitted October 1, 2007
Before Judges Stern, Collester and C. L. Miniman.
The Supreme Court has remanded this matter to us following our affirmance of defendant's convictions for offenses including first-degree possession with intent to distribute cocaine. The Court directed us to reconsider our affirmance in light of State v. Eckel, 185 N.J. 523 (2006), and State v. Dunlap, 185 N.J. 543 (2006).
The case involved a planned undercover cocaine purchase arranged with Marcos Fontanez, an informant. Surveillance was established in a ShopRite parking lot. We described the facts as developed in the record at trial as follows:
After his meeting with Fontanez, Detective Walsh returned to the narcotics task force office to report to his supervisors, who authorized him to proceed with the operation that evening. However, due to the "risk" posed to the undercover officers by the possible handgun and the amount of drugs and money involved, they "decided not to do a drug purchase."
At approximately 6:00 p.m. that evening, undercover police cars containing six officers established surveillance in the ShopRite parking lot to await the blue van. At 6:45 p.m., Fontanez called defendant to determine when he would arrive. After this conversation, Fontanez informed the officers that "Mario was enroute to [the] location" and "that there was another person in the van . . . with Mario because he heard a voice in the background while they were on the phone."
At 7:00 p.m. Detective Francisco Roman informed Detective Walsh, by radio transmission, that a blue work van with "ladder racks" had arrived at the Plaza. A man matching the description of "Mario" exited the van and walked into the ShopRite. Detective Roman parked behind the van to block it in. Although it was after nightfall, the parking lot was "well-lit."
Several moments after defendant exited the van, the lights inside the van shut off. The van appeared too old to have courtesy lights, which reaffirmed the officers' suspicion that there was someone else with defendant. Detective Walsh and his partner, Investigator Price, approached and shined their flashlight inside the van to ascertain if anyone was inside. They "couldn't see anyone through there" but could not see all areas of the van.
Meanwhile, Sergeant Christopher Shea and Detective Lewis DeMeo of the Prosecutor's Office approached defendant as he exited the ShopRite. They verbally identified themselves as officers, and also wore "raid" jackets and badges around their necks. In this way, defendant had no time to draw a weapon in anticipation of the drug transaction. According to the officers, defendant assumed a "boxing stance" as though he were ready for a fight. Therefore, Detective DeMeo brought defendant to the ground and Sergeant Shea handcuffed him. Detective DeMeo patted defendant down and found a small bag of marijuana in his sock. He then placed defendant under arrest. Defendant told the officers that his name was "Luis Rivera." ...