On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
On February 2, 2005, a grand jury indicted defendant on charges of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and 2C:55-5(b)(3) (Count Two); third-degree distribution of a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree distribution of a controlled dangerous substance within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a). The charges arose out of a surveillance operation led by Lieutenant Paul Schuster (Schuster) of the New Brunswick Police Department.
At trial Schuster testified that on December 17, 2004, he proceeded to Throop and Baldwin Streets, an area that borders Feaster Park. According to Schuster, he had conducted surveillance operations in this area "[m]any times over the years." Over the objection of defense counsel, he indicated that the area was significant because "[t]hat is one of the areas that we would get complaints about on a regular basis about alleged drug activity so we would do surveillances there." Schuster also stated that hundreds of arrests had been made in this area over the years. As soon as he set up the surveillance operation, Schuster testified that he observed defendant, whom he knew, along with a group of men in the area of 87 Baldwin Street (87 Baldwin). Within a few minutes, Schuster observed an unidentified person, later identified as Benito Reyes, hand defendant money. Defendant then proceeded down an alley that was next to 87 Baldwin and out of the surveillance view. When defendant returned thirty seconds later, Schuster observed him toss a small light-colored object to Reyes. Reyes looked at the item and placed it in his right pocket and walked away down Baldwin Street. Reyes was arrested shortly thereafter and the suspected narcotics were seized from his right pocket. Defendant was thereafter arrested.
Schuster also testified that at the station, he questioned defendant about the items seized from him, three packages of suspected heroin from the collar zipper of a camouflage jacket defendant had been wearing and $330 in cash. At this point, defense counsel objected. At sidebar, counsel argued that he did not "recall seeing a signed Miranda*fn1 card in discovery." He indicated to the court, "I think the lieutenant testified that he thought [defendant] was mirandized. I don't know whether he was or not." The prosecutor indicated that there were two conversations between Schuster and defendant. The first conversation related to cocaine, during which defendant purportedly responded non-verbally. There was a second conversation related to heroin where the defendant responded verbally. The prosecutor indicated that his question concerned the heroin. Defense counsel lodged no further objection at that point and Schuster testified that he "asked [defendant] about the items found at headquarters, and [defendant] said, well, you know I do a little something now and then."
The jury convicted defendant of all charges. The trial court granted the State's motion for an extended term and sentenced defendant to an aggregate seven-year term with a forty-two-month period of parole ineligibility, along with the appropriate fines and penalties. The present appeal followed.
Defendant raises the following points for our consideration on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS ADMISSION AND USE OF ...