On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1730.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Defendant, Tyrone Mair, appeals from his conviction on three counts of distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(3); three counts of CDS distribution within 1000 feet of a school, N.J.S.A. 2C:35-7; and three counts of CDS distribution within five hundred feet of a public park, N.J.S.A. 2C:35-7.1. All of the convictions were reported on the judgment of conviction as involving third-degree crimes. Defendant also appeals his extended-term sentence of ten years in prison with five years of parole ineligibility.
We affirm the conviction. The State concedes that defendant's school zone and public park convictions merge. See State v. Parker, 335 N.J. Super. 415 (App. Div. 2000). We remand for correction of the judgment of conviction and for reconsideration of the extended term sentence pursuant to State v. Thomas, 188 N.J. 137 (2006).
These are the most pertinent facts. On July 23, 2003, Sergeant William Logan of the Jersey City Police Department was conducting an undercover surveillance operation near Old Bergen and Bartholdi Avenues. From a surveillance van he first observed a black male, whom Logan later identified in court as defendant Mair, hand "a small object" to a person in a brown car and received "green paper currency in return." Logan believed this might be a drug transaction, but his back-up was not in place and therefore could not apprehend the driver of the brown car. However, this observation caused Logan to focus his surveillance on Mair, whom he described as wearing a white tee shirt, "very long blue jean shorts" and distinctive-looking "rust color brown sneaker[s]."
Logan next observed a white Neon car pull up to the same corner where the brown car had stopped. The front seat passenger, later identified as co-defendant Kevin Campbell, emerged, spoke with Mair and then followed Mair to a fence near an alley. Mair went down the alley, returning in two or three minutes, after which he and Campbell "walked slowly west." According to Logan, "as they [walked] Mr. Mair handed a small object to Mr. Campbell and Mr. Campbell handed what I believe to be green paper currency back to Mr. Mair." Logan observed this and all of Mair's other transactions through binoculars with seven by fifty magnification.
Fifteen or twenty minutes later, Logan observed another transaction in which co-defendant Jason Williams approached Mair; after some delay, Mair entered the alley, emerged and "dropped a few items into Mr. Williams' hand and received . . . green paper currency in return." Logan also observed Mair give "several small items" to a person later identified as Michael Craddock and receive "green paper currency" in return. After entering a nearby house, Mair came back out and gave Craddock "several small items again."
Logan's back-up units arrested Williams, Craddock and Campbell and found drugs in their possession. Campbell had one glassine bag of heroin. Williams had three gold-capped vials of cocaine. Craddock had four gold-capped vials of cocaine.
After two more males approached Mair and he "shook his head no," Logan concluded Mair was out of drugs. He radioed a description of Mair to back-up Officers Mark D'Ambrosio and John Wisnewski and directed them to arrest Mair. When arrested, Mair had no drugs in his possession, although he did have $272 consisting of one fifty-dollar bill, nine twenty-dollar bills, one ten-dollar bill, three five-dollar bills and seventeen singles. A search of the area did not uncover any stash of drugs. According to Logan, the small amounts of drugs found on the buyers normally sold on the street for ten dollars each.
Mair's attorney cross-examined Logan at length concerning his ability to observe the events he claimed to have seen through binoculars from a distance of approximately sixty feet. On re-direct examination, the judge permitted the prosecutor to give the binoculars to the jurors so that they could look through them "to see how they work." In summation, the prosecutor made one reference to the binoculars concerning the jury's opportunity "to see how powerful they were."
During cross-examination by co-defendant Campbell's attorney, Logan was asked about the handling of arrestee's personal property. Logan replied that if the person was released on a summons any property would be returned. He was then asked if the defendants were released on summonses. Logan responded that "the only one possibly to be released would be Mr. Campbell. One had warrants on him and one had charges that we could not release on a summons." The judge denied Mair's request for a mistrial, but instructed the jury that warrants might be "issued for many reasons" including failure to appear in court "for a parking ticket" or ...