On appeal from the Superior Court of New Jersey, Law Division, Union County, 01-11-1307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Lintner and Graves.
Following trial, a jury found defendant, Linford Linton, guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (Count One), and third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two).*fn1 The trial judge merged the Count One conviction with the Count Two conviction and a imposed an eight year mandatory extended term sentence, N.J.S.A. 2C:43-6f, with four years of parole ineligibility. Appropriate fines and penalties were imposed. Defendant appeals and we affirm the judgment of conviction but remand for re-sentencing in accordance with State v. Natale (Natale II), 184 N.J. 458, 465-66 (2005), and State v. Thomas, 188 N.J. 137, 151-52 (2006).
While on patrol at approximately midnight on August 6, 2001, Plainfield police officers Michael Black and Ronald James responded to a call that someone was occupying an abandoned house at 215 Monroe Avenue. Upon arriving, they noticed garbage and debris in the rear yard, a broken front door handle and smashed windows. After entering the unlit house, they noticed "broken furniture, garbage, [and] beer bottles." They also found approximately 100 glassine folds of suspected heroin, stamped "under control," behind the cushions of a couch. Next to the suspected heroin, they found a key and a small bag of marijuana.
They proceeded to the second floor where Black found defendant in a room on the south side of the house, kneeling near a door that was upright against the wall, placing items behind the door. Using his flashlight, Black saw defendant pull his hand from behind the door, jump up, and step behind another door that was upright against the wall. After calling James into the room, Black retrieved a plastic bag containing thirty-two vials of suspected crack cocaine and forty-two folds of heroin stamped "[u]nder control" located behind the edge of the door. Defendant was arrested and read his Miranda*fn2 rights. Defendant told Black that his name was Corey Linton and that he was a juvenile. Black later learned that defendant's name was Linford Linton and he was twenty-two years old.
Sergeant Richard Stamler of the Union County Prosecutor's Office testified as an expert. He opined that whoever possessed the drugs found in this case possessed them with the intent to distribute. Stamler based his conclusions on the quantity, value, and manner in which the drugs were packaged.
Defendant testified on his own behalf. Around 8:00 p.m. on August 6, 2001, defendant went to 215 Monroe Avenue because he "live[d] a few blocks around the corner and . . . was bored around the area." According to defendant, he "was going to the store and just moving around, see what else was going on . . . ." Defendant stated that he used to go into the house in his "younger years" and he knew the Brown family that lived next door. Defendant described the following activity that occurred outside the house:
Well, I was, basically, talking to friends. Some guys were rolling dice. You know, people were drinking. It was a -- I think it was a Sunday afternoon in the summertime. We was drinking and talking to girls. We were just playing around with the little boys around there . . . .
First, we . . . retired to the porch area at first and I was talking to a girl named Destiny (phonetic). I was asking her about her friend and she told me just to go wait for her, like wait, just wait inside. I'm all right. I'll wait. So we went in the house.
At that time, there were some guys downstairs. They just told me to go upstairs. It's a two family house. There's a living room downstairs and there's the upstairs living room. So I went into the upstairs living room, but I kept looking out the window to see what they were doing. So I seen them leaving. So I opened the window and I was, like, yeah. You're going to leave. She said, no. We'll be right back. Just hold on. We're coming right back. We're going to the store or whatever before it closes. So I said, okay. So I just laid back in the couch because my head was spinning a little bit and I was just laying back for a while.
Defendant stated that he saw police lights outside the house approximately fifteen to twenty minutes later and watched from the window as police officers, including Officer Black, searched four men. He laid back down on the couch until he heard the police "come pushing in" the front door of the house. Officer Black entered the room on the second floor where defendant was laying down and when he walked past the couch stated, "oh, my God. Get on the ground. Get on the ground." Defendant got on the ground and was handcuffed by another officer who was "not Officer James." Defendant then stated that Officer Black questioned him about the "guys on the porch" and the drugs that were found. He claimed that when he was taken outside there were more than four police cars and "a lot of officers."
On cross-examination, defendant indicated that he did not think the house was abandoned but believed it was still owned by the Jackson family. He testified that two individuals named Nyeem and Kasheef were on the porch of the house on the night in question, but he did not know their last names. According to defendant, a woman named Destiny Washington was on the porch and that he knew her "from Safe Haven Wats" and "from little thing[s] like Jam Steppers with [his] little cousin" and "Fourth of July Day parade and things like that." Defendant testified that he had "been in Plainfield now for . . . 13 years," confirmed that he saw Washington "around all the time," that he talked to her, and that she was his friend. He further stated that he spoke with Washington's friend, Charlene Brayboy, on the night in question and that Washington told him to wait for Brayboy inside the house.
Defendant also presented testimony from Frank DiNunzio. DiNunzio explained that defendant worked for him and, while defendant's payroll checks reflect the name Linford Linden, he is generally known as Corey.
On appeal defendant raises the following points:
THE TRIAL COURT VIOLATED DEFENDANT'S FUNDAMENTAL RIGHT TO CALL WITNESSES IN HIS OWN DEFENSE BY DENYING DEFENDANT THE RIGHT TO SUBPOENA OFFICER JAMES.
THE TRIAL COURT ERRED BY EXCLUDING FROM EVIDENCE STATEMENTS MADE BY OFFICER BLACK AFTER HIS ARREST OF DEFENDANT.
THE TRIAL COURT ERRED IN GRANTING THE STATE'S REQUEST FOR A CLAWANS*fn3 CHARGE, UNFAIRLY PENALIZING DEFENDANT FOR FAILING TO LOCATE AND PRODUCE [DESTINY] WASHINGTON AS A WITNESS AT TRIAL.
THE CONDUCT OF THE TRIAL JUDGE DURING THE TRIAL WAS MANIFESTLY IMPROPER, REFLECTING A LACK OF IMPARTIALITY AND A DENIAL OF DEFENDANT'S FUNDAMENTAL RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
THE SENTENCE IMPOSED BY THE TRIAL COURT SHOULD BE REDUCED AS ...