On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-2052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
On September 14, 2006, a jury convicted defendant, Benny Figueroa, a/k/a Angel Sanchez, of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); third-degree cocaine distribution, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); and third-degree cocaine distribution within 1000 feet of school property, N.J.S.A. 2C:35-7 (count five). The trial judge must have found defendant statutorily qualified for an extended term sentence, either on a discretionary basis as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) or on a mandatory basis as a prior drug distributor, N.J.S.A. 2C:43-6, because defendant was sentenced on count five, the cocaine distribution within 1000 feet of school property, as a second-degree offender to a prison term of ten years, five without parole.*fn1 All other counts were merged into count five. This appeal followed, and we affirm.
On June 1, 2005, Newark police department detectives conducted surveillance for the narcotics division while dressed in plain clothes in an unmarked vehicle. At approximately 12:40 p.m., the detectives drove into an area known for significant narcotics activity where they observed defendant sitting on a curb across from 126 Parker Street, while waving a woman towards him. The woman was later identified as Denise Fox.*fn2 The officers pulled over so they could gain a better vantage point. Detective Carlos Rivera had an unobstructed view of defendant, seated some forty to fifty feet away. After defendant motioned to Fox, she crossed the street and approached him. Rivera and Detective Phillip Tuizani observed the two engage in a brief conversation. Defendant reached into the front pocket of his pants, and removed a small plastic bag which he gave to Fox in exchange for paper currency. The conversation between defendant and Fox lasted no more than three to five seconds.
Fox walked away from defendant, and Tuizani followed. When he reached her, she was holding a white-topped vial containing a substance that looked like cocaine in her right hand. Tuizani immediately notified Rivera of this fact.
Fox was arrested, and Tuizani then brought her to the location where his partners were waiting a short distance away. At that juncture, defendant had already been taken into custody.
While Tuizani pursued Fox, Rivera and two other detectives approached defendant as he walked down an alley or driveway located on the side of 126 Parker Street. The officers arrested defendant and removed from his right front pants pocket a plastic bag containing twenty-six white-topped vials of suspected cocaine. Detectives also recovered $95 from defendant. According to Rivera, and to the stipulation entered into between the parties, the drug transaction occurred across the street from Ebaniger*fn3 High School.
Defendant did not testify at trial. He presented the testimony, however, of Madeline Garcia, who claimed to have witnessed Tuizani's arrest of defendant.*fn4 Garcia said at approximately noon that day, she was entering a nearby deli when she passed defendant exiting the store. She made her purchase, and as she left, she observed Tuizani and about three or four other detectives grab defendant and begin to search him. She testified that defendant was not only searched, but directed to take off his shoes so they could be searched. She saw police take money from him, and turn his pockets inside out. The money was put on the hood of a car, and Tuizani continued to search around on the ground, even questioning some bystanders in the immediate vicinity.
When Tuizani noticed Garcia watching, she testified that he told her to go about her business. She went into a nearby laundromat but continued to watch from a side door. She said the detectives kept yelling at defendant, who was finally taken away in a police vehicle, while the detectives remained in the area. Garcia did not see defendant selling drugs that day.
On cross-examination, Garcia acknowledged she was acquainted with defendant as he worked with her brother, and that he had introduced defendant to her a couple of months before the incident. She claimed, however, that she was not friendly with him, and did not even acknowledge him as they passed each other near the store that day. She admitted not seeing everything that occurred between defendant and the detectives.
After defense counsel completed his summation, the State was permitted to reopen its case for the sole purpose of introducing the laboratory certificate verifying that the substances defendant possessed, and which he sold to Fox, were cocaine. See N.J.S.A. 2C:35-19(c). The laboratory certificate had been previously stipulated. Defendant had not disputed that the substances were illegal drugs, or filed notice of objection pursuant to statute. Rather he was proceeding on theories along the lines of mistaken identity, or that the drugs were planted.
Nonetheless, defense counsel objected to the admission of the evidence in light of the fact the record had closed. Defense counsel declined the judge's offer, when the State finished its summation, to reopen his case, or to present additional ...