On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 05-06-0542, 05-04-0368 and 04-08-0585.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Indictment No. 05-04-0368 charged defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), and third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). At the conclusion of a two-day trial, a jury found defendant guilty of all these charged offenses.
During that trial, the jury heard evidence that upon receiving a tip from a reliable confidential informant, Detective Steven Ingram of the Gloucester County Prosecutor's Office, while in an undercover capacity, went to a motel room in Glassboro on December 14, 2004. He knocked and the door was opened by an individual whom he subsequently identified as defendant. No one else was in the room. Ingram indicated an interest in buying crack-cocaine. Defendant provided Ingram with several small bags in exchange for twenty dollars. They shook hands and Ingram departed.
Later, Ingram was debriefed by Detective Charles Landi. He described defendant as being six-foot-three-inches and approximately 230 pounds, with shoulder length corn rows. Landi showed Ingram a photograph of the defendant; Ingram confirmed that the person from whom he purchased CDS was the person in the photograph.
On January 7, 2005, Detective Ingram was again working undercover. He returned to the same motel room in Glassboro. When he knocked on the door, an African-American male opened it and allowed him to enter. Two other African-American males were in the room with defendant, who was sitting at a table inserting marijuana into a cigar.*fn1 Ingram approached defendant and asked for fifty dollars worth of crack-cocaine. Defendant removed seven smaller bags from a larger bag and gave them to Ingram in exchange for fifty dollars. Ingram left and turned the CDS over to Detective Landi.
On January 12, 2005, Ingram was again working undercover in the area of Church and Wilmer Streets investigating complaints of drug sales in the area. His intent was to make cold contacts*fn2 with suspected sellers to purchase drugs. At around 11:00 a.m., Ingram drove his undercover vehicle into the area and parked just off the intersection of Church and Wilmer Streets. While Ingram was walking up Wilmer Street, defendant drove into the area in a white Chevy Lumina, and pulled over to speak with Ingram. Defendant recognized Ingram and asked what he needed. Ingram purchased twenty dollars worth of crack cocaine and met with Detective Landi after the purchase. Defendant was later arrested and charged with offenses based upon these three transactions.
Defendant took the stand at trial and testified that Ingram had misidentified him as the seller of drugs by confusing him with his first cousin, Brian Carr. And, in an attempt to refute Ingram's testimony regarding the January 12, 2005 transaction, defendant testified that his driver's license had been suspended in 2003, it had not been restored by January 2005, and he had never owned nor driven a Chevy Lumina.
In addition, defendant testified that, although he was a resident of the motel room where the first two purchases occurred, many other people also would stay in the motel room at times. He also testified that he was not in the motel room on December 14, 2005, but instead had been in Pennsylvania for the first three weeks of December. Although he had not then given up the room, defendant stated that he did allow friends to stay there. He denied ever selling cocaine on the dates in question.
The jury found defendant guilty of the offenses charged in Indictment No. 05-04-0368. He later pled guilty, pursuant to an agreement, to one count contained in Indictment No. 05-06-0542, i.e., third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). And defendant also pled guilty to violating the conditions of a probationary term imposed on a prior conviction of obstruction of justice, N.J.S.A. 2C:29-1(a), arising from Indictment No. 04-08-0585. After all appropriate mergers of the convictions in Indictment No. 05-04-0368, the trial judge sentenced defendant to a four-year prison term. Defendant was also sentenced to a concurrent three-year term for the violation of probation. Additionally, the trial judge imposed a three-year prison term regarding the CDS conviction in Indictment No. 05-06-0542 and ordered that it run consecutively to the term imposed on Indictment No. 05-04-0368.
In his appeal, defendant makes the following arguments regarding his conviction and sentence in Indictment No. 05-04-0368*fn3
I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER EXPRESSLY INFORMING THE JURY THAT HE RECEIVED INFORMATION FROM A RELIABLE CONFIDENTIAL INFORMANT THAT THE ...