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State v. Mercedes

April 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DIEVY W. MERCEDES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0259.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 8, 2008

Before Judges Yannotti and LeWinn.

Defendant Dievy W. Mercedes was charged with various narcotics offenses in seven counts of Passaic County Indictment No. 05-03-0259. He was tried to a jury, found guilty on all seven counts, and sentenced to an aggregate three-year term of incarceration, with a three-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered on April 28, 2006. We affirm.

In the indictment, defendant was charged with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count two); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); distribution of CDS, N.J.S.A. 2C:35-5a(1) and b(3) (count four); distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count five); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (count six); possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count seven). Co-defendant Daniel Mysko also was charged in the indictment with possession of CDS, N.J.S.A. 2C:35-10a(1) (count eight).

On October 11, 2005, defendant and Mysko appeared with their attorneys for a pre-trial conference. Defendant's attorney requested that the judge sever the defendants for trial, and also requested a hearing pursuant to State v. Scovil, 159 N.J. Super. 194 (Law Div. 1978), to determine whether Mysko would testify and exculpate defendant. However, Mysko's counsel told the judge that Mysko would not exculpate defendant. Mysko's attorney stated that Mysko was unable to say whether he purchased the drugs from defendant. Mysko interjected, "[y]eah, I can't say if it was or if it wasn't [defendant]." The judge directed defendant's attorney to file a formal motion for severance and for the Scovil hearing. On November 28, 2005, Mysko pled guilty.

Defendant was tried to a jury. At the trial, Officer Anthony Abate of the Passaic County Sheriff's Department testified. Abate stated that he was a detective in the anti-crime unit and was assigned to the narcotics task force. Abate asserted that on October 21, 2004, at approximately 12:30 p.m., he and Sergeant Tony Damiano were conducting surveillance in Paterson. Abate was wearing plain clothes, and his badge was inside his shirt. Abate and Damiano were riding in an undercover vehicle. Damiano was driving and Abate was in the passenger seat.

Abate stated that he and Damiano set up surveillance on East 19th Street facing 17th Avenue in Paterson. He described the location as a high-crime area. Abate said that during the surveillance, he observed a Hispanic male wearing a gray sweat shirt on the porch of the house located at 54 17th Avenue.

According to Abate, the man on the porch was "waving his hands and yelling and trying to get the attention of the cars that were driving by." Abate stated that there was no one else on the porch at the time. Abate identified defendant as the man on the porch.

Abate testified that it was a clear day, he could see "perfect[ly]," and he did not need binoculars. He stated that next he observed a white male walk across East 19th Street towards Madison Avenue. Defendant waved to the white male. Abate said that there was a fence bordering the property at 54 17th Avenue. The white male entered the fenced area, walked up the stairs to the porch, and engaged in a conversation with defendant.

Abate said that he observed the white male reach into the pocket of his pants, pull out paper currency, and hand it to defendant. Defendant took the money, unfolded it, and placed it in his pocket. Defendant walked over to the mailbox that was mounted on the house. According to Abate, defendant removed several objects from the mailbox, walked over to the white male, and handed the objects to the white male. The white male put the objects into his pocket and walked down the stairs. The man started walking towards Madison Avenue.

Abate said that he exited the police vehicle and started to walk in the direction of the white male. Abate caught up with the man near the corner of 17th Avenue and Madison Avenue. Abate removed his badge from under his shirt, identified himself as a police officer, and asked the man what he had been doing on the porch. Abate arrested the man and searched him. Abate testified that the man was in possession of two glassine envelopes of heroin. The man was placed in the police vehicle.

Abate notified Lieutenant Mike Tucker and asked that he respond to the scene to arrest defendant. According to Abate, Tucker arrived in a matter of minutes. Abate got out of Damiano's vehicle and entered Tucker's vehicle. They drove around the corner towards the house at 54 17th Avenue. Defendant was on the porch. Abate and Tucker exited the vehicle and walked up the stairs to the porch. Abate pointed out the mailbox that defendant had accessed during his interaction with the white male. Tucker went to the mailbox and Abate arrested defendant.

Abate said that defendant was in possession of one hundred and six dollars, consisting of one twenty-dollar bill, four ten-dollar bills, six five-dollar bills, and sixteen one-dollar bills. Tucker retrieved a clear plastic bag from the mailbox. The plastic bag contained fifteen smaller plastic baggies of marijuana and one glassine envelope of heroin. Abate testified that the house where defendant was arrested was within a 1000-foot radius of two schools, the Eastside High School and the Roberto Clemente School. Abate said that both were functioning schools.

Abate identified a photo of defendant that was taken about a half-hour after his arrest. The photo showed defendant in a gray sweat jacket. Abate testified that he was positive the person in the photo was the same man who was on the porch when he observed the transaction with the white male, and when he and Tucker came back and made the arrest.

Tucker also testified. He said that on October 21, 2004, he was alone on duty. He was wearing plain clothes and was in an unmarked police vehicle. Tucker said that he received a call from Abate and Damiano informing him that they had made an arrest in the area of 17th Avenue and Madison Avenue in Paterson. Tucker responded to the area in his vehicle.

Tucker stated that when he arrived, Abate and Damiano told him that they had arrested an alleged drug buyer and they knew where the dealer was. Damiano stood by in his vehicle with the buyer. Abate got into Tucker's vehicle and they drove to the house at 54 17th Avenue where Abate arrested defendant. Tucker identified defendant as the person who ...


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