On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 05-09-00021-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Tried to a jury, defendant was convicted of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), a crime of the second degree; distribution of a controlled dangerous substance within one thousand feet of school property, N.J.S.A. 2C:35-7, a crime of the third degree; and commission of a drug offense while in possession of a firearm, N.J.S.A. 2C:39-4.1, a crime of the second degree. In light of the nature of defendant's prior criminal record, he was subject to a mandatory extended term on being convicted of possession of a controlled dangerous substance with intent to distribute. N.J.S.A. 2C:43-6(f). The trial court sentenced defendant to fifteen years in prison for that conviction and a concurrent five years, with three years of parole ineligibility, for the school zone conviction. For the final conviction, the trial court imposed a consecutive seven-year term, for an aggregate sentence of twenty-two years in prison. Defendant has appealed his convictions. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The trial at which defendant was convicted was brief.*fn1 The prosecution presented four witnesses. Investigator Kevin Weinkauff of the Division of Criminal Justice testified about the observations he made while conducting surveillance of apartment #1 in the building located at 297-305 Park Avenue in East Orange. He told the jury that on the afternoon of January 7, 2005, he saw a man stick his head out of a second-story window in the front of the building. At trial, he identified defendant as that man. Weinkauff said he then drove to the rear of the building and saw another man opening the rear door of the building. He identified that second man as co-defendant Hicks. Weinkauff testified that on the afternoon of February 25, 2005, he again saw defendant stick his head out of a front second-story window.
The testimony was presented in this truncated format because these observations were made during the course of an extended investigation into drug trafficking. Part of the investigation involved controlled purchases made by confidential informants. Because the State was unwilling to identify these informants in any manner, the jury heard no testimony with respect to these controlled purchases and indeed heard no testimony of any drug transactions having occurred at this building.
On the afternoon of March 3, 2005, Weinkauff, together with several other officers, participated in executing a search warrant for the apartment from which defendant had stuck out his head.*fn2 When they executed the warrant, defendant was in the front bedroom. In that room, the police found a digital scale, a razor blade, small plastic bags, and approximately four ounces of crack cocaine. They also found a small quantity of marijuana and a loaded .45 caliber pistol. They searched defendant and found more than two thousand dollars in cash. After extended deliberations, the jury convicted defendant. It was unable to reach a verdict with respect to his co-defendant, Hicks.
On appeal, defendant raises the following arguments:
POINT ONE THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY REGARDING THE PRIOR SURVEILLANCES UNDER N.J.R.E. 404(b).
POINT TWO THE TESTIMONY REGARDING THE PRIOR SURVEILLANCE WAS NOT PART OF THE RES GESTAE.
POINT THREE THE TRIAL COURT ERRED BY NOT HOLDING A HEARING PRIOR TO PERMITTING THE TESTIMONY REGARDING THE PRIOR SURVEILLANCE.
Defendant contends that the testimony of Investigator Weinkauff with respect to his observations while conducting his surveillance duties constituted evidence of prior bad acts within the scope of N.J.R.E. 404(b). The rule provides in pertinent part that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule also states, however, that such evidence may be admitted for other purposes; it includes a non-exhaustive list, including "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake." The rule recognizes that evidence of prior bad acts "poses a 'distinct risk' of distracting the jury from 'an independent consideration of the evidence that bears directly upon guilt itself.'" State v. Reddish, 181 N.J. 553, 608 (2004) (quoting State v. G.S., 145 N.J. 460, 468 (1996)). If the evidence does deal with a defendant's "other crimes, wrongs or acts" it must meet the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992) to be admissible.
In Cofield, the Supreme Court set forth the four criteria a trial court must utilize when considering whether to admit such evidence. The evidence must be relevant to a material issue; it must be "similar in kind and reasonably close in time to the offense charged"; it must be proven by clear and convincing evidence; and its ...