On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-08-1022.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Chambers.
Defendant Mack Charles Shepard appeals from a final judgment of conviction and sentence. Although defendant did not object to the jury instruction, which did not adequately address his evidence of alibi, its relevance to proof beyond a reasonable doubt or improper argument presented by the prosecutor, we cannot conclude that the errors were harmless.
R. 2:10-2. Accordingly, we reverse and remand for a new trial. Defendant was named in an indictment charging him and his co-defendants, Jihaad Spearman and F.R., but he was tried alone.*fn1
The jury found defendant guilty of third-degree distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5a(1); third-degree possession of heroin, N.J.S.A. 2C:35-5a(1); and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). Based on defendant's prior conviction for possession of a controlled dangerous substance with intent to distribute, the trial court granted the State's application to sentence him to a mandatory extended term and period of parole ineligibility in accordance with N.J.S.A. 2C:43-6f. Thus, after merging count five into count six, the court imposed concurrent ten-year terms of incarceration, five years to be served without possibility of parole. The court also imposed a $150 VCCB assessment, a $150 lab fee, a $3000 DEDR penalty, a $225 SNSF assessment and a $30 LEOTEF penalty.*fn2
In an effort to respond to citizen complaints about drug activity in the Oakwood Park Plaza area of the City of Elizabeth, at 7:30 p.m. on the evening of April 10, 2004, Officer Panuthos, his partner and his sergeant, all of the Elizabeth Police Department, conducted a surveillance. There was no evidence that suggested the officers had information about defendant's or his co-defendants' involvement in drug trade. The officers selected an observation point in a vacant third-floor apartment that gave them a clear and unobstructed view of the streets and sidewalks below. The nearby trees were still leafless, and the officers used binoculars. Although it was dark, the area was well-lit. Officers Geddes, Deabreu and Garcia, were positioned at different locations, within blocks of the site, and were assigned to assist the surveillance team on request.
Officer Panuthos noticed Spearman near a red Oldsmobile parked on the street below. Panuthos saw Spearman place "items" on one of the car's rear tires and both of its front tires.
Over the course of the next thirty minutes, he watched while passersby stopped. In each case, Spearman went to one of the three tires of the car, retrieved something and then made what appeared to be an exchange with the passersby. Some of the passersby were walking and others were in cars. Panuthos could not see the exchanges between Spearman and those in the cars, but he saw Spearman lean into the cars.
After thirty minutes, defendant approached Spearman. Spearman removed the "items" from the tires, and both men got into the red Oldsmobile. Spearman drove away.
The officers took no action but continued their surveillance. Within forty-five minutes, the red Oldsmobile returned. Panuthos saw Spearman get out of the car and look at bushes nearby. Spearman returned to the car and moved it a short distance. At that point, both Spearman and defendant left the car. They walked to a fence, removed a cap from one of its posts and placed small items inside. They then returned to the car. Passersby again approached. In some instances defendant and in other instances Spearman went to the fencepost.
Panuthos described one encounter during which Spearman got out of the car and approached a Jeep. After speaking to someone in the Jeep, he spoke to defendant. Defendant went to the fencepost and returned to Spearman. Spearman went to the Jeep, leaned inside the window and walked away counting money.
Panuthos called for assistance, and Officer Geddes stopped the Jeep on a street nearby. There was a clear plastic bag on the floor of the Jeep that contained a substance later determined to be cocaine. Geddes arrested the driver.
Panuthos also saw Spearman approach a beige Oldsmobile. This encounter followed a similar pattern. This time Spearman went to the fencepost, retrieved something and returned to lean into the passenger compartment of the beige Oldsmobile. ...