On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0481.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Gilroy.
Tried to a jury, defendant Keith Bell was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count 1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count 2); and third-degree possession of heroin with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count 3).*fn1
The convictions on counts 1 and 2 were merged with the conviction on count 3 for which defendant received a mandatory extended term as a repeat drug offender, N.J.S.A. 2C:43-6(f), of ten years with a five-year parole bar. Defendant was later re-sentenced to the same term without consideration of aggravating factor #11, N.J.S.A. 2C:44-1(a), since a non-custodial term was never a sentencing option. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
Defendant was apprehended after police surveillance observed him engaging in a suspected drug transaction. According to the State's proofs, around 6:00 p.m. on November 12, 2004, Officer Carlos Lugo, responding to numerous citizen complaints, set up surveillance in the area of Communipaw, Siedler and Clinton Avenues in Jersey City, which was within 1000 feet of a public school. Lugo was the sole surveillance officer but was accompanied by two perimeter units. Although the exact surveillance vantage point was not disclosed, Lugo positioned himself within fifty yards of 62 Siedler Avenue, equipped with high-powered binoculars. Although dark outside, there was street lighting in the target area and weather conditions were clear. Lugo's visibility was unobstructed and his elevation higher than any other vehicle.
At around 6:30 p.m., Lugo observed a black male, John McCaskel, enter the premises at 62 Siedler Avenue, then quickly exit and walk back north on Siedler toward Communipaw. Based on his training and experience, his observations and the information he had been given, Lugo believed a drug transaction had just taken place. He radioed McCaskel's description to his perimeter units, who then, upon further investigation, apprehended the suspect, who was in possession of one glassine bag of heroin with a "President" logo on it.
Less than ten minutes later, Lugo observed three black males, including defendant, exit 62 Siedler Avenue and stand out front. Just a few minutes later, defendant crossed the street, walked south to around 51 Siedler, approached a fence and retrieved a black bag. Defendant then removed an object from his right pocket and placed it in the bag, before putting the bag back down. Afterwards, defendant crossed back and rejoined the other two men, who then went back inside 62 Siedler and did not reappear for the duration of Lugo's surveillance.
While defendant stood alone outside, another man, Roger Williams, approached him and the two engaged in a brief conversation. Using his binoculars, Lugo observed Williams hand defendant green paper currency and, in exchange, defendant removed an object from his right front jacket pocket and gave it to Williams. At this time, Lugo broadcast Williams' description to his perimeter units, who, upon further questioning, apprehended the second suspect and recovered one glassine bag of heroin stamped "Daily News" from his mouth.
After being notified that both McCaskel and Williams were apprehended with suspected controlled dangerous substances, Lugo instructed the perimeter unit to arrest defendant and directed another officer to search for the black bag that defendant handled only moments earlier. When ultimately recovered, the black bag contained twenty-four glassine bags of heroin, fourteen or fifteen with the "Daily News" logo and the remainder with a "Red Light" logo. Upon his arrest, defendant had no controlled dangerous substance on his person.
On appeal, defendant raises two issues for our consideration:
I. THE TRIAL COURT'S RULING THAT PRECLUDED DEFENSE COUNSEL FROM QUESTIONING THE POLICE OFFICER ABOUT THE DETAILS OF HIS SURVEILLANCE LOCATION DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION ...