On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-01-105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2007
Before Judges Parker and C.S. Fisher.
In this appeal, we consider various arguments raised by defendant, including his claim that he was denied the effective assistance of counsel.
Defendant was indicted and charged with having committed numerous drug offenses on April 26, 2002. During trial, the jury heard testimony from police officers, who, on that date, conducted surveillance of three individuals sitting on a porch at 729 West Fourth Street in Plainfield.
The officers testified that they observed a series of drug transactions. On each occasion, when a customer approached, Antoine Tarver, who was one of the three men on the porch, would speak with the customer, retrieve something from a dresser on the porch, and receive money in exchange. A few of these customers were stopped by police units after they had departed the area and found to be in possession of heroin.
After a number of such transactions, Tarver took money from his pocket, kept one bill for himself, and handed the rest to defendant. Tarver then left the porch and walked to a convenience store. One police unit responded to the convenience store and detained Tarver; another unit pulled into the driveway at 729 West Fourth Street.
As the police vehicle entered the driveway, defendant was observed shoving something alongside the dresser. The officers called defendant over and one of the officers searched the area near the dresser, finding money and forty folds of heroin.
Tarver also testified for the State. He asserted that defendant showed him heroin while they were on the porch that day. Tarver asked defendant, who was Tarver's nephew, if he could sell it for him. As a result, Tarver sold the heroin in the manner described by the officers, and gave the money to defendant.
Defendant and Tarver were indicted. Prior to trial, the State and Tarver entered into an agreement whereby Tarver pled guilty to one count of distributing heroin within 1,000 feet of school property, and one count of distributing heroin within 500 feet of a public park, and agreed to give truthful testimony against defendant, in exchange for the State's agreement to recommend a five-year sentence with an eighteen-month period of parole ineligibility.
Following trial, defendant was found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); three counts of third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two, five and eight); three counts of third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (counts three, six and nine); and four counts of second-degree possession of CDS with the intent to distribute within 500 feet of a public park or housing facility, N.J.S.A. 2C:35-7.1 (counts four, seven, ten and eleven). After all appropriate mergers, defendant was sentenced to an extended ten-year term on count four, ...