On appeal from Superior Court of New Jersey, Law Division, Essex County, 05-04-0776-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard and Baxter.
Defendant Vincent Wilson appeals from his conviction on the following narcotic offenses: possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (Count Two); possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); and possession of CDS within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Count Four). Defendant was acquitted of a fifth count charging tampering with physical evidence, N.J.S.A. 2C:28-6.
At sentencing, the court merged Counts One, Two and Three into Count Four. On Count Four the judge imposed a sentence of seven years with three years of parole ineligibility.
The facts proven at trial were uncomplicated. On January 28, 2005, Newark Police Officers Mark Garrett and Douglas Marshall were on uniformed foot patrol on Stratford Avenue, between Clinton Avenue and Avon Avenue, in Newark. At 9:30 a.m., the officers were positioned in the vestibule of a building located at 2 Stratford Avenue, on the corner of Stratford and Clinton. The only pedestrians the officers observed were two individuals standing in front of 29 Stratford Avenue, 355 feet away. The officers' view was unobstructed.
The officers witnessed the two individuals, later identified as Eugene Bryant and defendant Vincent Wilson, "conducting what looked to . . . be a transaction of U.S. currency." Bryant "handed to Wilson U.S. currency . . . in the manner keeping it hidden." Wilson then placed the money in his pocket and walked away from 29 Stratford toward the officers. Bryant followed. When the men reached 19 Stratford Avenue, they entered the building.
The officers, suspecting that a drug transaction was occurring, walked over to 19 Stratford Avenue. As the officers approached, they noticed that Bryant was standing inside. Bryant opened the door and let the officers inside the building's lobby. Upon entering, the officers asked Bryant why he was in the lobby. At that point, the officers heard a door open and defendant came into view from around the corner to the officers' left.
Upon observing the officers, defendant stopped and dropped an object along his pant leg to the floor. Garrett then asked defendant where he was coming from, while Marshall retrieved the object from the floor. The officers then arrested defendant. A search revealed cash in defendant's rear pocket, consisting of tens, twenties and fives, although the exact amount was not noted. The officers also arrested Bryant.
After defendant was arrested, he was taken to the central processing unit. Marshall testified that he performed a second search of defendant and noticed that the currency found in his rear pocket had been torn to pieces. The item found at the scene was tested and determined to be "50 decks [i.e. packets] of heroin." The money found on Wilson, however, was subsequently lost.
In his opening statement, defense counsel painted a picture of a man falsely accused by police officers who could not possibly have seen what they claimed. Defense counsel noted:
Ladies and gentlemen, this is a case about false accusation. It is a case where the first moment the police encounter Vincent Wilson, that is, with their eyes, you're going to realize after going soon into the evidence of this case, that what they're saying they saw was physically impossible for them or any other human being on the planet earth to see.
On cross-examination of Officers Marshall and Garrett, the defense attempted to elicit that the police officers' views of 29 Stratford had been compromised by distance, undermining their ...