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State v. Cherry

February 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILIP CHERRY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1844.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Tried to a jury, defendant Philip Cherry (Cherry) was convicted on two counts of knowingly or purposely dispensing or distributing cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); two counts of knowingly or purposely dispensing or distributing cocaine while within 1000 feet of school property used for school purposes, N.J.S.A. 2C:35-7; and two counts of knowingly or purposely dispensing or distributing cocaine while within 500 feet of the real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1. At sentencing, the trial judge merged the two distributing and the two distributing-within-1000-feet-of-school-property convictions into the two distributing-within-500-feet-of-public-housing convictions. He then proceeded to sentence defendant to two concurrent nine-year terms with four-and-one-half years of parole ineligibility. After reviewing the record in light of the contentions advanced on appeal, we have concluded that the trial judge did not commit reversible error at trial or during sentencing and, therefore, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On July 22, 2004, Jersey City Detective Christopher Robateau (Robateau) was assigned to investigate narcotics activity in the "west district of Jersey City." Robateau, as surveillance officer, was joined by several other officers who served as the perimeter units. These officers would remain in the general area of the investigation and would stop and apprehend those involved in drug transactions.

Robateau established surveillance at 5:00 p.m. at the A. Harry Moore housing complex. The detective was specifically observing the rear of 324 Duncan Avenue. Robateau was approximately two-hundred feet away from the area of observation, lighting was good, and he was aided by binoculars. There was "medium" foot traffic, but nothing to hinder Robateau's ability to view the area. Pictures of Robateau's view that day were admitted into evidence.

At approximately 5:15 p.m., the detective observed defendant have a brief exchange of words with another man. Then, defendant reached into his right-hand pants pocket and handed the man something in exchange for paper currency. The man then left the area and was not apprehended.

Approximately five minutes later, the detective observed Claudia Caminneci*fn1 (Caminneci) drive up in a silver Dodge Neon, alight from the vehicle, approach defendant, and engage in a conversation. Defendant again reached into his pocket, retrieved an object, and exchanged it with Caminneci for paper currency. Caminneci then reentered her vehicle and drove away.

Robateau radioed the perimeter units who apprehended Caminneci. Two envelopes of heroin and two "jugs" of cocaine were recovered from her purse where she indicated that they would be.

At approximately 6:30 p.m., Alex Maurice Braxton (Braxton) approached defendant and engaged in a conversation. Defendant, once again, reached into his right-hand pants pocket, retrieved an object, and exchanged it for paper currency, this time with Braxton. Braxton then followed defendant into the building, where the detective lost sight of him. Approximately ten to fifteen minutes later, defendant reemerged into view, driving a Ford van. Robateau radioed the description of the van to the backup units. The police were unable to find defendant for about a half-hour, until he returned to the area in the van and was apprehended.

Officer Burgess stopped defendant's van, arrested him, and searched him. No drugs were found, but the officer recovered $183 in suspected drug proceeds.

Subsequent to defendant's arrest, Braxton was located and arrested. During the arrest, he was searched and one "jug" containing a rock-like substance, later identified as cocaine, was recovered from Braxton's right front pocket.

On October 14, 2004, defendant was indicted on nine counts: knowingly or purposely dispensing or distributing cocaine, in a quantity of less than one-half ounce, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count one); knowingly or purposely dispensing or distributing cocaine, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count two); knowingly or purposely dispensing or distributing cocaine, to Braxton, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count three); knowingly or purposely dispensing or distributing cocaine, in a quantity of less than one-half ounce, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count four); knowingly or purposely dispensing or distributing cocaine, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count five); knowingly or purposely dispensing or distributing cocaine, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count six); knowingly or purposely dispensing or distributing heroin, in a quantity of less than one-half ounce, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count seven); knowingly or purposely dispensing or distributing heroin, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 1000 feet of school property used for school purposes, in violation of N.J.S.A. 2C:35-7 (count eight); and knowingly or purposely dispensing or distributing heroin, to Caminneci, in violation of N.J.S.A. 2C:35-5(a)(1), while within 500 feet of the real property comprising a public housing facility, a public park or a public building, in violation of N.J.S.A. 2C:35-7.1 (count nine). Counts ten, eleven, and twelve charged Braxton with possession of cocaine and Caminneci with possession of cocaine and heroin respectively. Braxton and Caminneci entered separate plea agreements prior to trial.

Before the trial, Judge Peter Vazquez held an in camera hearing in response to defendant's request that the State reveal the surveillance location. For reasons placed on the record under seal, the trial judge granted the motion to protect the surveillance location. However, he allowed defendant to question the surveillance officer about lighting conditions, his use of vision enhancing devices, the distance between where he was and the place under observation, the general direction and elevation of the position, and any obstructions.

On September 30, 2004, after the voir dire of the jury, after both defendant and the State had exhausted all of their peremptory challenges, after counsel agreed that the jury was satisfactory, and immediately before the jury was to be sworn, the trial judge asked the jury seated in the box, "is there anybody who forgot to tell me something or thought of something else that they need to tell me before I swear you in?" Three jurors responded. The judge excused one juror whose service on the jury would be a financial hardship. The judge also dismissed another juror for reasons not picked up by the microphone. Two new jurors were then chosen, one being an evening law student. The judge posed the same voir dire questions to the two new jurors as those asked of the others. Neither counsel requested any additional peremptory challenges or that any additional questions be asked. Both defense and the State indicated to the court that the jury was satisfactory and it was sworn.

After an intervening weekend, on October 4, 2005, prior to opening statements, defendant, joined by the State, objected to the jury selection process that had concluded the previous week. Defense counsel objected that he and the prosecutor both had exhausted their peremptory challenges as the jury was about to be sworn and that the judge excused two jurors and replaced them from the jury pool without providing defendant or the State with any additional peremptory challenges. The judge reviewed the case that counsel relied upon, State v. Tinnes, 379 N.J. Super. 179 (App. Div. 2005), distinguished it, and then denied the motion.

During the trial, defendant objected to the introduction of the drug evidence on the grounds that the State had failed to prove a satisfactory chain of custody as to that evidence. Judge Vazquez rejected defendant's motion, finding "sufficient testimony for the jury to infer the chain of custody from the police department to the lab."

Upon the conclusion of the State's case, defendant made a motion for a judgment of acquittal based on insufficient evidence to establish a prima facie case. The judge found that "[c]learly there's sufficient evidence that the jury could come to a determination that all the charges in the indictments have been proven" and, therefore, denied the motion.

Caminneci testified for the defense that she pled guilty to the charges against her. Caminneci further indicated that she pulled into the parking lot of Duncan Street projects to buy drugs. She then testified that her car was swarmed by kids to sell her drugs. Next, Caminneci stated that she bought drugs from two different people, but not from defendant. On cross- examination by the prosecutor, she ...


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