On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1456.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Following a trial by jury, defendant Kevin Gause was convicted on all five counts of an indictment charging him with: third-degree conspiracy, pursuant to N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) & -5(b)(3) (count three); third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7 & -5(a) (count four); and second-degree possession with intent to distribute on or near a public building, N.J.S.A. 2C:35-5(a) & -7.1 (count five). At the time of sentencing, the judge granted the State's motion for an extended term on count four. Then, after merging all of the other counts into count five, the judge imposed an eight-year sentence with four years of parole ineligibility. Defendant appeals. We affirm the judgment of conviction, but remand for resentencing in light of State v. Natale (Natale II), 184 N.J. 458 (2005).
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. New Brunswick police detective Christopher Plowucha received information from a confidential informant that defendant, Wallace Brown, and Lillian Brown were distributing drugs. The informant alleged that Lillian and Wallace Brown had possession of heroin and that defendant was making the sales.
On July 14, 2004, at around 4:00 p.m., Plowucha and another New Brunswick detective, Paul Schuster, conducted narcotics surveillance at 70 Remsen Avenue, a mostly residential area in the city. That location is within 1000 feet of a Montessori school and within 500 feet of the New Brunswick Fire Museum. Using binoculars, the two detectives conducted the surveillance from an undercover car and had a back-up team of five officers to conduct arrests. When surveillance began, there was a light rain.
As the detectives monitored the location, Plowucha used his binoculars and saw defendant and Lillian Brown, whom he knew from the neighborhood, walking up Remsen Avenue. He saw Brown reach into her bra and hand over to defendant what he suspected was heroin. Then he saw defendant put the suspected heroin into the front of his pants. Ms. Brown and the defendant walked towards 70 Remsen Avenue. Ms. Brown went inside the residence while defendant remained outside on the front porch.
Soon thereafter, Plowucha observed a Hispanic man approach the house. The man and defendant had a brief conversation and began to walk down Remsen Avenue, towards Townsend Street. The Hispanic man handed defendant cash, and defendant reached into his pants and pulled out what looked to be like more than one bag of heroin and handed it to the Hispanic man. As the exchange occurred, what had up to that point been drizzle turned into "torrential downpour," and the detectives terminated the surveillance.
One hour later, they resumed the surveillance from the same location. Defendant and Ms. Brown were still on the porch. Plowucha then saw Wallace Brown walk over to the house with another person, who gave defendant cash. Defendant gave this person what looked like a bag of heroin. The buyer then walked away. Mr. Brown also walked away, returning a short time later with yet another person who again gave defendant cash in exchange for what seemed to be another bag of heroin. Again, after the exchange, Mr. Brown walked away from the house.
Plowucha continued his surveillance. He saw Helen Gogos approach defendant and Ms. Brown on the porch. Defendant directed Gogos to walk towards Townsend Avenue. Ms. Brown once again reached into her bra to hand something to defendant, which Pluwocha could not see. Defendant walked over to Gogos, who handed cash to defendant. In return, he handed her heroin. Gogos placed the heroin inside of her bra.
Plowucha called his back-up unit and ordered them to arrest Gogos. The back-up unit arrested Gogos. She surrendered two bags of heroin to the officers. Plowucha, meanwhile, continued his surveillance of the house, where defendant and Lillian Brown were still on the porch. A man and a woman approached them. The same cash-for-heroin exchanged occurred. Plowucha was unable to have these buyers arrested, since the back-up unit was arresting Gogos. Another man approached defendants at the house, but defendant shook his head, which Plowucha took to mean that he had no more heroin to sell. At this point, Mr. Brown reappeared at the house. All three walked to the back of the house and out of Plowucha's view. When they re-appeared at the front of the house, he called in the back-up unit to arrest them.
On September 29, 2004, the grand jurors for Middlesex County returned a five-count indictment charging defendant, the Browns, and Gogos with drug charges arising from the July 14 incident. From April 7, 2004, to April 18, 2004, Judge Deborah J. Venezia presided over the joint trial of defendant and Wallace Brown. The jury convicted defendant on all ...