On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-08-1109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Jerome Stephens, appeals his conviction for drug-related offenses. Defendant claims that his right of confrontation was violated when the court permitted hearsay testimony describing the location where he was arrested as an area from which they had received numerous telephone calls reporting narcotics activities. Defendant also contends the trial court committed reversible error when it failed to give the instruction to the jury on inconsistent statements of witnesses found in the Model Jury Charges (Criminal). We reject these claims and affirm the judgment of conviction.
On August 9, 2004, a Passaic County grand jury indicted defendant on charges of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count One); distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5 (Count Two); distribution of a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (Count Four); and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Five). Co-defendant Rafael Lopez was charged in Count Six of the indictment with possession of a controlled dangerous substance.
According to the evidence presented at trial, the indictment stems from an undercover surveillance operation on May 5, 2004. On that date, around 1:30 p.m., Detective Marvin Sykes (Sykes), along with four other undercover Patterson police officers, were traveling in unmarked police vehicles "looking to make narcotics arrests in certain areas." Sykes turned onto Rosa Parks Boulevard off of Broadway, an area he described as a "hot spot for us[,]" more specifically, "[t]hat strip there from Fair Street to 12th Avenue, which is maybe four blocks, there's a lot of drug activity in that . . . stretch." As he drove past the property located at number 264, a location that he also described as "a place that we had numerous calls for . . . illegal drug selling occurring in front of it [and] on the side of it[,]" his attention was drawn to two individuals standing at the side of the house in the driveway. He described one individual, later identified as Rafael Lopez, as a Hispanic male attired in a peach-colored shirt, and the other individual, subsequently identified as defendant, as a black male wearing a black shirt. Based upon his observation of Lopez handing what appeared to be paper currency to defendant, along with his knowledge of the area and his experience, Sykes believed that he was witnessing what "was possibly a drug transaction going on." Upon further questioning by the prosecutor, Sykes indicated, "I seen small items with the hands . . . going across and I just reacted to that just to see what was going on." Sykes stopped his car and exited the vehicle, at which time Lopez and defendant started to walk towards him, and as they did so, Lopez dropped two small objects to the ground. Sykes immediately recognized the two small objects as "glassines of suspected heroin." On cross-examination, Sykes acknowledged that in his report he did not describe the color of the items he saw Lopez discard or that he also saw currency exchanged. Sykes arrested Lopez and retrieved the bags from the ground.
Detective Orlando Robinson (Robinson) also testified. He indicated that he too was part of the undercover operation and recalled hearing Detective Sykes say something over the radio, and as he looked to his left towards the driveway of number 264, he too saw two men in the driveway. He did not witness any exchange between the two men but he did observe a male, whom he identified as defendant, toss small, light-colored objects to the ground. While other officers detained defendant, Robinson retrieved the discarded items, which were later determined to be fourteen glassine envelopes of heroin. Defendant was searched incident to his arrest, and police recovered $99 in twenty, ten, and one-dollar denominations. At the time of his arrest, defendant told police that he resided six or seven blocks away, and Lopez indicated that he lived twenty blocks away.
When the trial judge delivered his instructions to the jury, he did not give the Model Jury Charge (Criminal) on inconsistent statements but instead instructed the jury on inconsistent statements as part of his general instruction on credibility. The jury convicted defendant of all counts in the indictment. The trial judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant to an aggregate eight-year custodial term with a four-year period of parole ineligibility along with appropriate fines and penalties. Defendant filed his Notice of Appeal on September 27, 2006.
Defendant raises the following points for our consideration on appeal:
THE JUDGE'S FAILURE TO GIVE ANY INSTRUCTION ON PRIOR INCONSISTENT STATEMENTS BY WITNESSES WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below.)
DETECTIVE SYKES' TESTIMONY THAT THE POLICE HAD RECEIVED "NUMEROUS CALLS" ABOUT ILLEGAL DRUG SELLING "IN FRONT OF" AND "ON THE SIDE OF" THE HOUSE AT 264 ROSA PARKS BOULEVARD VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. ...