On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 03-02-0111-I, 03-03-0275-I, 03-09-0826-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Fuentes.
A Passaic County grand jury returned three indictments against defendant. Following a trial in September 2003 on indictment no. 03-02-0111, a jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). The following month, defendant pleaded guilty under indictment no. 03-09-0826 to third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and under indictment no. 03-03-0275 to third-degree possession of CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.
On December 5, 2003, the trial court sentenced defendant under all three indictments. On indictment no. 03-02-0111, the court merged counts one and two into count three and sentenced defendant to a five-year term of imprisonment with a three-year period of parole ineligibility. On indictment no. 03-03-0275, the judge imposed a three-year term of imprisonment with a nine-month period of parole ineligibility, concurrent to the sentence on indictment no. 03-02-0111. On indictment no. 03-09-0826, the judge sentenced defendant to three years flat, concurrent to the other sentences. He also imposed a six-month license suspension on indictment no. 03-02-0111 and a concurrent twelve-month license suspension on indictment no. 03-03-0275.
On appeal, defendant raises the following legal arguments:
THE JUDGE'S FAILURE TO DECLARE A MISTRIAL WHEN HE LEARNED THAT A SHERIFF'S OFFICER HAD EXCLUDED DEFENDANT'S GIRLFRIEND FROM THE COURTROOM DURING JURY SELECTION DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL.
DETECTIVE AVILA'S TESTIMONY THAT HE KNEW THAT THE SUBSTANCE THE DEFENDANT HAD DROPPED TO THE GROUND WAS DRUGS "BASED ON INFORMATION HE HAD RECEIVED," VIOLATED DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSERS. (Not Raised Below).
THE TRIAL JUDGE DEPRIVED DEFENDANT OF HIS RIGHTS TO PRESENT A DEFENSE, COMPULSORY PROCESS, AND DUE PROCESS WHEN HE BARRED DEFENSE WITNESSES FROM VIEWING A PHOTOGRAPH OF A THIRD-PARTY WHO ARGUABLY COMMITTED THE OFFENSES CHARGED IN THE INDICTMENT.
DEFENDANT'S TRIAL CONVICTIONS MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING THE ARRESTING DETECTIVE TO OFFER INADMISSIBLE OPINION TESTIMONY.
THE BASE TERM IS EXCESSIVE, AND THE SENTENCE MUST BE REMANDED PURSUANT TO STATE V. NATALE.
We have carefully reviewed the record in light of these contentions and the applicable law. Defendant's arguments in points one and three are without sufficient merit to warrant a reversal of his conviction. We find merit to defendant's arguments in points two and four, and conclude that the cumulative errors warrant reversal of defendant's conviction. Defendant's sentencing argument in point five is therefore rendered moot.
Paterson police Detective Manuel Avila and his partner, Detective John Contini, were on duty June 4, 2002, when, at 6:30 p.m., responding to information they had received, they went to 409 Graham Avenue, also known as Rosa Parks Boulevard. The area surrounding the location was known for narcotics activity, and Avila had made numerous narcotics-related arrests there. Though the officers were in an un-marked car, it was readily identifiable as a police vehicle.
When the detectives arrived, Avila noticed a male, later identified as defendant, standing in front of the building located at the address. Defendant appeared to notice the officers. He placed his right hand in his right pants pocket, immediately removed his hand, made a motion as if he was dropping something to the side, and walked up a few steps leading to the building's porch. Based on the information the officers had received and upon defendant's discarding an object upon the officers' approach, Avila concluded that defendant had discarded illegal drugs. At the time Avila saw defendant discard the object, it was light out, defendant was approximately thirty-eight feet away, Avila's field of vision was unobstructed and he could see defendant's face. No one else was near defendant at the time.
Avila got out of the vehicle and recovered the discarded object, a plastic sandwich bag; inside were seventeen small plastic baggies containing a substance Avila believed to be cocaine. Field and lab testing confirmed that the substance was cocaine. The police also found $158 on defendant's person.
We first address defendant's argument that the judge's failure to declare a mistrial when he learned that a sheriff's officer had excluded defendant's girlfriend from the courtroom during jury selection deprived defendant of his right to a public trial. A criminal defendant has the right to a public trial under the Sixth Amendment to the United States Constitution and article I, paragraph 10 of the New Jersey Constitution. State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002). This right applies to all phases of the trial, including jury selection. Ibid. The right is not, however, absolute. Ibid. "The presumption of openness may be overcome . . . by an overriding interest based on [the trial judge's] findings that closure is essential to preserve higher values and is narrowly ...