On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Defendant Jamar Largin appeals from a judgment of conviction entered on December 7, 2004 after a jury found defendant guilty of third degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3) (Count One); and third degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7 (Count Two). At sentencing, Count One was merged into Count Two and defendant was sentenced to an extended term of nine years subject to four years parole ineligibility.
These charges arose out of a routine surveillance operation on St. George Avenue, the common border between Roselle and Linden. The operation was being conducted by the Union County Narcotics Strike Force with the assistance of Roselle Detective Sergeant William Brennan. In his role as a backup officer, Brennan had electronic devices to monitor the undercover officer's conversations and he observed the undercover officer through binoculars.
As Brennan was observing the scene, the undercover officer was approached by a man -- later identified as defendant -- who engaged the undercover officer in conversation. Brennan observed the undercover officer and defendant engage in an exchange that, based upon his training and experience, he believed was a drug transaction.
Brennan testified that when he observed the transaction, he was about "a hundred feet, maybe a little bit more" away and had a clear view of the scene. He described defendant as a black male with a light goatee, medium brown complexion, 6' 2" tall, weighing 165 pounds, "wearing a gray zippered sweatshirt, a white T-shirt and light blue jeans." Brennan was familiar with defendant from having observed him previously. After Brennan witnessed the transaction, he met the undercover officer at a separate location. The undercover officer gave Brennan "five glass vials with gold caps," which he had purchased from defendant. The vials contained white powder that was ultimately determined to be cocaine. Brennan showed the undercover officer a color photograph of defendant, which the officer identified as a photo of the person from whom he had just purchased the cocaine. A warrant was issued for defendant's arrest on June 10 and he was taken into custody on June 12, 2003.
In this appeal, defendant argues:
THE COURT BELOW ERRED IN TWICE DENYING DEFENDANT'S MOTION FOR A MISTRIAL
a. The State'[s] failure to disclose the use of vision enhancement during surveillance constitutes a discovery violation, prejudiced Defendant, and warrants reversal
b. The State's failure to disclose the involvement of a confidential informant (CI) constitutes a discovery violation pursuant to Brady, was prejudicial to defendant and warranted the granting of Defendant's request for a mistrial
THE INADEQUATE RESPONSE BY THE COURT TO A JURY NOTE DURING DELIBERATIONS HAD THE CLEAR CAPACITY TO PREJUDICE DEFENDANT AND CONFUSE THE JURY AND, ACCORDINGLY, REVERSAL OF ...