On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 05-05-0626.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Wefing and Lyons.
Tried to a jury, defendant was convicted of third-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), 5(b)(3); and the disorderly persons offense of resisting arrest as a lesser- included offense of third-degree resisting arrest, N.J.S.A. 29- 2(a). He was found not guilty of distribution of a controlled dangerous substance N.J.S.A. 2C:35-5(a)(1), 5(b)(3); distribution within one thousand feet of school property, N.J.S.A. 2C:35-7; and aggravated assault, N.J.S.A. 2C:12- 1(b)(5)(a). He was sentenced to five years in prison, with a two-and-one-half-year period of parole ineligibility. In addition, monetary penalties and fines were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, defendant raises the following arguments:
POINT ONE WHERE THERE WAS NO EVIDENCE TO CORROBORATE OFFICER REGALADO'S IN-COURT IDENTIFICATION OF WASHINGTON, THE TRIAL JUDGE'S IDENTIFICATION CHARGE, WHICH ERRONEOUSLY INDICATED THAT REGALADO HAD MADE AN OUT-OF-COURT IDENTIFICATION AND WHICH FAILED TO ADDRESS THE CROSS-RACIAL NATURE OF THE IDENTIFICATION, DEPRIVED WASHINGTON OF DUE PROCESS OF LAW AND A FAIR TRIAL. ACCORDINGLY, WASHINGTON'S CONVICTION FOR CONSPIRACY TO DISTRIBUTE DRUGS MUST BE REVERSED.
A. By Misleading The Jury Into Believing That Regalado Had Made An Out-Of-Court Identification Of Washington Immediately After The Incident, The Trial Judge Unfairly Bolstered The Reliability of Regalado's In-Court Identification, Made Nearly 12 Months After The Incident. (Not Raised Below)
B. The Judge's Ruling That A Cross-Racial Identification Was Unnecessary Because The Identifying Witness Was A Police Officer Was Erroneous.
POINT TWO REMARKS MADE BY THE PROSECUTOR IN HER SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below)
Defendant was arrested on February 1, 2005, in Jersey City in connection with a narcotics surveillance operation conducted by members of the Jersey City Police Department. Police Officer Ray Regalado was the surveillance operator. He parked his unmarked vehicle at approximately 11:30 A.M. near the intersection of Martin Luther King Drive and Orient Avenue. The weather was clear and dry. From his vantage point, he observed three African-American males standing in front of 331 Martin Luther King Drive, thirty to forty feet away from where he was parked. One of the three men, later identified as James Bowens, would flag down cars driving past. One of the cars stopped, and the driver, later identified as Ray Pickett, spoke to Bowens who pointed out his two compatriots standing nearby. Pickett got out of the car and went to the two men, one of whom, identified as defendant, handed two packets to Pickett who, in turn, gave money to defendant's companion, identified as Tyrone Doctor. Pickett returned to his car and left the area. Officer Regalado radioed his perimeter officers, and Pickett was stopped by Officers Chowanec and Heger. A search of Pickett turned up two packets of heroin, containing the logo "Cream." Pickett was placed under arrest.
The three men involved in the sale began to walk away from the scene, defendant Washington on one side of the street, Bowens and Doctor on the other. Officer Regalado radioed a description of the three and their path of travel to members of the perimeter team. Officers Chowanec and Heger responded and came upon defendant Washington who ran away. Officer Heger pursued him through several alleys and yards and eventually apprehended him. A search turned up cash in the sum of $384 but no drugs.
While Officer Heger was chasing defendant, Officer Chowanec stayed near the car with Mr. Pickett. He then observed another individual walking away. Officer Chowanec identified himself as a police officer and asked the man to stop. In response, that man took his hand out of his pocket and dropped two bags of marijuana. Officer Chowanec placed him under arrest as well. There ...