On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and LeWinn.
Defendant Theodore Blackshear was charged under Passaic County Indictment No. 05-06-0909 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (counts four and five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count seven). Tried to a jury, defendant was found guilty on counts one, four, five, six, and seven, and not guilty on counts two and three. Defendant was sentenced to an aggregate four-year term of incarceration. Defendant challenges his conviction. For the reasons that follow, we affirm.
We briefly summarize the evidence presented at trial. On February 23, 2005, at about 9:55 p.m., Detectives Thomas Adamo and Michael Nakashin of the Passaic County Sheriff's Department (PCSD) were on routine patrol in the area of Market and Clark Streets in Paterson. Adamo and Nakashin were driving in an unmarked police vehicle. They were dressed in plain clothes. Adamo said that he made a left-hand turn off Market to Clark Street. In the middle of the block, he observed two individuals standing outside a store having a conversation. Adamo said that it was dark but the individuals he observed were illuminated by a street light.
Adamo stated that the observed the two men through the front window of the police vehicle. His view was unobstructed. Adamo indicated that, as he continued to drive, he observed one of the men hand the other man an unknown amount of paper currency. Adamo stated that, when he saw this occur, he was probably around twenty-five feet from the men. No one was walking in the area and no cars blocked his view. Adamo said that one of the men accepted the currency and placed the money in his left pants pocket. Adamo identified defendant as the person who accepted the currency.
Adamo testified that defendant then reached into his left jacket pocket and removed an object. Adamo said that he was driving at a slow rate of speed, which he estimated to be about ten or fifteen miles per hour. He stated that he was about five feet away when he saw defendant reach into his jacket pocket and pulled out an object. The other individual looked up and was facing in the direction of the police vehicle. He said something to defendant. Defendant dropped the object to the ground and, according to Adamo, the two men "began to part ways."
Adamo and Nakashin exited their vehicle. Adamo told Nakashin to watch defendant. Adamo picked up the object that defendant dropped. He opened it and found fifteen green, plastic baggies of suspected crack cocaine. Adamo informed Nakashin of what he found and Nakashin went to place defendant under arrest but defendant ran north on Clark Street towards Market Street. Nakashin ran after defendant. Adamo told the other man that he was under arrest and not to leave. Adamo then left to follow Nakashin in his pursuit of defendant.
Nakashin tackled defendant near Market Street. Nakashin and defendant fell to the ground. Nakashin did not have control of defendant. According to Adamo, defendant punched and kicked him. Adamo punched defendant in the face in an effort to stop defendant from resisting the arrest. Adamo backed away and then sprayed defendant with pepper spray.
At that point, the officers were able to grab defendant's arms and place him in handcuffs. Adamo and Nakashin walked defendant back to the police vehicle and placed him in the rear of the car. Another officer had responded to the scene, but the other man involved in the drug transaction had already left the scene and was never found.
Adamo said that the suspected narcotics were field tested and the tests were positive for cocaine. Defendant was searched and found to be in possession of money. Adamo could not recall how much money defendant possessed. He noted that he did not indicate the amount in his report. He stated,
In actuality, it should be listed in my report. It wasn't seized because it -- it didn't exceed the -- the amount. It was -- it was only a small amount of money. I don't remember exactly how much, but most of the time we only confiscate money when it's over $50 because of the fees involved in the confiscation process.
Adamo also testified that defendant was taken to the hospital because he had complained about pain in the side of his face. Defendant was released that evening. Adamo said that the place where he first observed defendant was within 1,000 feet of the Dale Avenue School. Adamo stated that, to his knowledge, the school was a functioning school where children attend classes.
On cross-examination, Adamo reiterated that, when defendant was apprehended, he had money on his person. The following colloquy between Adamo and defense counsel ensued:
Q: But your report doesn't say anything about any money. Is that right?
Q: Show me then in your report where it mentions that my client had any money on his person[.]
A: [Defendant] accepted the currency and placed it into his left pants pocket.
Q: That's right. After you arrested him, how much money did he have?
A: I don't recall how much money it was.
Q: But you're telling us today that he did have the money you say he accepted on his person when you arrested him?
Q: But your report fails to mention how much money he had. Is that correct?
A: Yes. That's correct. . . . .
Q: Would you consider the amount of money that he had on him to be an important detail that should have been in your report?
Q: That money that you say he accepted and put into his left pocket, that money was evidence of a crime. Is that correct?
Q: The money all by itself was evidence that [defendant] committed the offense of selling ...