On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 03-12-1543-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Holston, Jr.
Middlesex County Indictment No. 03-12-1543 charged defendant, Juan Santiago, with seven counts. Count one charged third-degree distribution of a controlled dangerous substance (CDS) (marijuana) on August 5, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12). Count two charged third-degree distribution of marijuana within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7, on August 5, 2003. Count three charged second-degree distribution of marijuana within 500 feet of a public housing facility, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1, on August 5, 2003. Count four charged third-degree distribution of CDS (cocaine), on August 22, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Count five charged third-degree distribution of cocaine within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7, on August 22, 2003. Count six charged second-degree distribution of cocaine within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1, on August 22, 2003. Count seven charged third-degree conspiracy with co-defendant, Efrain Taylor, on August 22, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2. Taylor was also charged with the offenses in counts four through seven of the indictment. The conspiracy charge was dismissed on the State's motion on September 22, 2004.
Defendant was tried before a jury on September 14-15 and 21-23, 2004 and was found guilty of all six counts. Defendant was sentenced on December 6 and 8, 2004. Counts one and two were merged with count three, and counts four and five were merged with count six for sentencing purposes. On count six, a second-degree crime, defendant was sentenced to a six-year term of imprisonment with a three-year period of parole ineligibility. Count three was amended from a second-degree to a third-degree offense because of the amount of marijuana being less than one ounce. N.J.S.A. 2C:35-7.1. On that count, defendant received a concurrent four-year term of imprisonment with a one-year and four months period of parole ineligibility. Defendant appeals his conviction and sentence. We reverse and remand for a new trial.
At 6:00 p.m. on August 5, 2003, Perth Amboy Patrolman Marcos Valera was working undercover, attempting to purchase narcotics, near 673 Cortlandt Street, an apartment building that is within 100 feet of public housing and within 1,000 feet of a middle school. While Valera was in the area, he noticed defendant in the doorway of 673 Cortlandt Street and started a conversation with him. He had not known defendant previously.
Valera asked whether Jose was nearby, and defendant asked who Jose was. Defendant then asked Valera what he needed, and Valera said that he was "looking for a sack." Defendant said,
"I got you," and then entered the multi-family building at 673 Cortlandt Street and an apartment on the first floor.
After a short time, defendant exited the apartment and signaled Valera to enter the building. Defendant opened the outside door, Valera entered the building, and defendant displayed several knotted, plastic baggies containing marijuana in a gold, tin can. Defendant said, "take the one you want." Valero bought one of the bags for $10.*fn1 A short time later, Valero drove past the same building and saw defendant speaking with two detectives.
Valera returned to 673 Cortlandt Street at 7:30 p.m. on August 22, 2003, where Valera said he again met defendant. Defendant asked the officer if he was looking for something. Valera replied that he wanted to buy "cooked up," which is a street term for crack cocaine. Defendant nodded to Taylor, who was standing ten feet away, and advised Valera that Taylor had it. Taylor told Valera to accompany him as they walked. Taylor asked Valera how much he wanted, and Valera answered that he wanted "one." Taylor then spit a plastic bag of cocaine*fn2 from his mouth. The price this time was $20, which Valera paid. The officer then left. The officer did not see defendant again until May 17, 2004, when he testified at a pre-trial hearing.
At that hearing, Valera testified that he had identified defendant after the first sale by viewing a photo array. However, at trial, Valera acknowledged that there had been no photo identification after the August 5 buy, because to his knowledge defendant had no prior arrests from which to obtain an arrest photo. The officer explained that he had assumed there had been a photo identification because that was the "normal" procedure in his police department. Valera's actual identification was made as he drove by the scene at twenty miles per hour looking through a tinted window. The officer said he had seconds to make his observation.
When Valera left the scene of the August 5 sale, he gave a description of the seller to his fellow officers. He described, the seller as an Hispanic male, six feet tall, 250 pounds, wearing a short sleeved white T-shirt. Valera's report did not mention whether the seller had tattoos nor did he offer such testimony at the pre-trial hearing. At trial, the officer stated there were no tattoos that he observed. The officer agreed that he would have been looking for unique identifiers, such as tattoos, but indicated he concentrated more on the seller's face.
As defendant sat in court wearing a T-shirt, a portion of a tattoo on his left arm was showing. He was permitted to display the tattoos on his right and left arms to the jury. On redirect, the officer testified that the T-shirt defendant was wearing on the day of the sale had elbow-length sleeves, like oversized T-shirts. On re-cross, he conceded that the T-shirt description was not in his report.
Valera also testified that the seller was wearing a Texas Texans baseball cap, which he was still wearing during the drive-by identification. Later, he stated that the seller was not wearing the same hat during the drive-by.
As to the August 22, 2003 buy, Valera testified that the transaction lasted between four and five minutes in total. The sale took place at 7:35 p.m., when there was "a little bit of daylight." The officer stated when he spoke to the seller he recognized him as the same person from the first buy. The officer said he was not looking at the defendant as he conducted his transaction with co-defendant and that the majority of the time he was focused on co-defendant.
Detective William Tiedgen was working as an undercover backup on both days. He testified that on August 5, 2003, he was working in an unmarked vehicle with Detective Estrada. At some point, they received a description of the drug seller from Sergeant Conway. The description was an Hispanic male, six feet tall, 250 pounds, with a shortcut beard, wearing glasses, blue jean shorts, a blue baseball cap with a Texas Texans logo and an oversized white short-sleeved T-shirt. Conway informed Tiedgen that the seller was in the area of the landing at 673 Cortlandt Street. The officers waited two to three minutes, to make sure Valera was outside the area, and then went to 673 Cortlandt Street. There they saw a person who fit the description. The man told them that his name was Juan Santiago and at their request showed them a New Jersey driver's license with his photo. The date of birth on the driver's license was the same as the date of birth told to the officers by defendant. Tiedgen identified defendant, in court, as the person to whom he spoke.
On August 22, 2003, at 7:35 p.m., Tiedgen was again working as a backup with Detective Estrada in the area of 673 Cortlandt Street. They received a transmission that two people were involved in narcotics activity at the same place. They went to the area of 673 Cortlandt Street, where they saw two men standing on the stairs. Tiedgen identified one of the men as defendant because of the encounter with him two weeks prior. After questioning by the police, the other man identified himself as Taylor. Taylor's identity was corroborated by his photo driver's license.
Detective Carmelo Jimenez testified he was present August 22, 2003 at around 7:30 p.m., in a rental car, doing surveillance as an undercover officer. He was looking out the rear window of the vehicle, which had tinted windows, as Valera walked to 673 Cortlandt Street and engaged in a brief conversation with defendant. Jimenez knew defendant from the community. Jimenez stated Valera talked to defendant, who nodded in the direction of Taylor. The detective saw Valera and Taylor walk a short distance and then saw Taylor spit a small object out of his mouth and give it to Valera, after which Valera and Taylor walked in separate directions.
Sergeant Conway was in charge of the narcotics squad and was present on both days. He took Valera to the area of 673 Cortlandt Street on August 5, 2003, in an unmarked vehicle. He stated he saw Valera go to the front of the building at 673 Cortlandt Street where Valera, in the doorway, engaged in a conversation with a person, who he identified in the courtroom as defendant. Conway saw defendant go into the building. Four or five seconds later, Valera went into the building. Seconds later, Valera exited the door and walked away. Fifteen seconds later, Valera called Conway on a Nextel phone. Valera gave a description of the man as an Hispanic male, six feet tall, 250 pounds, with glasses, a short beard, wearing a blue cap with the Texas Texans logo, and a white short-sleeved T-shirt.
Conway stated he then advised Tiedgen and Estrada to go to 673 Cortlandt Street and approach defendant. He gave the detectives the description given to him by Valera. Seconds later, the detectives pulled up and approached defendant who was outside. Conway then left the area to pick up Valera. When they returned to drive by the scene, Valera identified defendant as "the person he bought the marijuana from."
On August 22, 2003, Conway was in charge of another undercover narcotics investigation. Valera got out of the car Conway was driving and walked in the direction of 673 Cortlandt. Conway did not identify defendant as a person who was present on that day, because Detective Jimenez was the "eyeball" that day not him.
Detective Carl Graham was the officer who eventually arrested defendant for both sales, pursuant to an arrest warrant. Defendant gave Graham his address as 673 Cortlandt Street and his birth date as June 17, 1980. He said his nickname was Pelo. Graham described defendant in his report as obese, 290 pounds, wavy or curly hair and unshaven. Detective Graham noted two tattoos on defendant's arms. On his right triceps were the words, "Gone, Never Forgotten." On his left triceps were the words, "Fear No One."
On the first day of trial, defense counsel told the court that defendant's defense would be "third party identification," involving defendant's brother Edguardo Santiago, whose photograph counsel showed to the trial prosecutor "last week." Defense counsel stated that he learned "literally yesterday" about a case involving Edguardo "before this very court" as the result of an arrest in Perth Amboy. As of that moment, counsel ...