On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-03-490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Koblitz.
Defendant George Garrett appeals from his convictions after trial for possession of heroin with the intent to distribute within 500 feet of public housing, possession of cocaine with the intent to distribute within 500 feet of public housing, both counts in violation of N.J.S.A. 2C:35-7.1, and resisting arrest, in violation of N.J.S.A. 2C:29-2a.
Defendant was arrested on the street after ten o'clock at night on November 5, 2005, in Jersey City, New Jersey. Two Jersey City police officers, Detective Keith Ludwig and Officer Steven Trowbridge, were in plain clothes sitting in an unmarked car when they saw defendant and his two co-defendants, Danny Perez (AKA Johnny Pacheco) and Rafael Rosado. The three defendants stopped twenty feet in front of the police car, across the street from the Montgomery Garden public housing complex. Defendant pulled a pouch out of his pocket and showed the other two men the contents. The two men handed defendant money and defendant handed the two men something from the pouch. When the police officers got out of their car to arrest the three men, Perez and Rosado threw the objects in their hands to the ground. Defendant walked away and refused to stop prior to being arrested. Inside the pouch were bags of heroin and vials of cocaine. The officers also recovered from the ground bags of heroin which had been discarded by Perez and Rosado.
On February 23, 2006, defendant, Perez and Rosado were indicted by a Hudson County grand jury in a sixteen-count indictment. Only the last count did not apply to defendant.
After a two-day trial, defendant was convicted of third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a(1)(count one); third-degree possession with intent to distribute less than one-half ounce of heroin, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within 500 feet of public housing, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7.1 (count four). Counts five through eight repeat the charges, alleging the same acts with cocaine rather than heroin, in violation of the same statutes. Defendant was acquitted of six counts.
After the appropriate mergers, defendant was sentenced to concurrent terms on counts four, eight and fifteen, resulting in an aggregate sentence of ten years in prison subject to a five-year period of parole ineligibility. He was also assessed the mandatory fines and penalties.
On January 16, 2007, defendant filed a pro se notice of appeal. On May 22, 2007, the Office of the Public Defender filed a notice of appearance on his behalf. On appeal, defendant presents the following arguments:
WHEN THE JURORS ASKED QUESTIONS OF FACT DURING DELIBERATIONS, THE JUDGE IMPROPERLY INFORMED THEM THEY WOULD HAVE TO RELY ON UNAIDED MEMORY, ALTHOUGH VIDEOTAPES OF THE PROCEEDING WERE AVAILABLE TO REFRESH THEIR MEMORIES. (Not raised below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL ...