On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2006
Before Judges Holston, Jr. and Grall.
Defendant Luis Rosario appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was found guilty of possession of heroin, a crime of the third degree, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin with intent to distribute, a crime of the third degree, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and possession of heroin within a school zone, a crime of the third degree, N.J.S.A. 2C:35-7. The court merged defendant's convictions on counts one and two into his conviction on count three and sentenced defendant to a five-year term of incarceration, three of which must be served without possibility of parole. The court also imposed a $50 VCCB assessment, a $75 SNSF assessment, a $30 LEOTEF penalty, a $50 lab fee and a $1000 DEDR penalty. This appeal followed.
Officer Robert Keily of the Elizabeth Police Department testified on behalf of the State in opposition to defendant's motion to suppress the heroin defendant possessed. In response to citizens' complaints about drug trade near the intersection of Fifth and Fulton Streets in the City of Elizabeth, Keily and four other officers set up a surveillance on January 22, 2002. The intersection was one known for narcotics trafficking; Keily previously had made as many as twenty-five to seventy-five arrests for drug crimes in the same area.
The officers were not in uniform or a marked police car. Before dark and from a distance of seventy-five to one hundred feet, Keily saw defendant approach Franciso Cabrera, who was standing on the southeast corner of the intersection. After a brief conversation, defendant walked away from Cabrera and around the corner. Although Keily lost sight of defendant, within a minute defendant returned and handed Cabrera an object that was small. Suspecting that defendant had gone to a place where drugs were hidden, the officers moved to a better vantage point. Defendant and Cabrera stayed together. Keily saw a third man approach defendant and Cabrera. That man handed Cabrera what appeared to be money and accepted a small object from him. Five minutes later another man approached, gave Cabrera something that looked like money and received a small object in return. Cabrera and defendant crossed the street where they stood with Ramon LaPuerta and two women. A man riding a bicycle stopped, handed defendant what appeared to be cash and accepted a small object from him.
Having seen three hand-to-hand exchanges within a ten-minute period, the officers drove toward the bakery, got out of their car and approached the group. LaPuerta dropped a clear-plastic bag on the ground. Keily grabbed defendant, searched him and found four glassine bags of heroin. Defendant was taken to police headquarters. While the officers were completing paperwork, defendant reached behind the waistband of the sweatpants he wore under his blue jeans and handed the officer ten glassine bags of heroin that were wrapped together in magazine paper.
Cabrera testified in support of defendant's motion to suppress. He admitted that he and defendant were friends but denied engaging in or seeing defendant engage in any drug transactions on the day of the arrest. Defendant also testified. He admitted that he, Cabrera, LaPuerta and others were in front of the bakery but denied any knowledge of or involvement in drug transactions that day.
The judge credited Keily's testimony and determined that the police had probable cause to arrest before they arrested and searched defendant. The judge determined that the search was constitutionally valid because it was incident to an arrest supported by probable case.
At trial Keily gave testimony consistent with his testimony at the motion hearing. The State also introduced evidence sufficient to establish that the substance defendant possessed was heroin and that the transactions took place within 1000 feet of Charles J. Hudson School. In addition, Keily testified that when defendant produced the magazine-wrapped bundle of heroin at headquarters he said something, but Keily could not recall what defendant said. When defense counsel asked Keily whether he had come to know defendant since the incident, Keily said he had dealt with defendant before this incident.
On appeal defendant raises the following issues:
I. THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE OFFICER KEILY DID NOT HAVE PROBABLE CAUSE TO ARREST THE DEFENDANT AT THE TIME HE REACHED INTO THE DEFENDANT'S WAISTBAND AND SEIZED FOUR (4) GLASSINE ENVELOPES OF SUSPECTED HEROIN.
II. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION AND BY THE TRIAL COURT'S FAILURE TO ISSUE, SUA SPONTE, AN AMELIORATIVE CHARGE AS A ...