On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Axelrad, Payne and Sapp-Peterson.
A jury convicted defendant of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1). He was sentenced to a flat four-year term that was later suspended upon reconsideration. The court imposed a five-year probationary sentence conditioned upon defendant serving a 270-day custodial sentence. Appropriate fines, penalties, and revocation of his driving privileges were also imposed.
According to the proofs presented by the State at trial, the charges stemmed from a surveillance operation conducted by Elizabeth police in the area of Magnolia Avenue (Magnolia) and First Street (First), an area police described as having a high concentration of narcotics and other criminal activity. The surveillance was conducted by Detective Kevin McDonough, an eight-year veteran of the narcotics unit, who had received training in manners and behaviors of drug dealers and who had been involved in thousands of narcotics investigations that resulted in arrests and seizure of drugs. He positioned himself approximately fifty to 100 feet away from a white van parked at the northeast corner of Magnolia and First. His view was unobstructed and the weather was clear. With the aid of binoculars, he was able to view the interior of the van from its front window and observed a male seated in the driver's seat. After about ten minutes, this male, later identified as defendant, exited the van and went to the corner, where he wandered back and forth. Approximately twenty minutes later, another male approached defendant, and the two men greeted each other and departed. A half-hour later, Detective McDonough noticed that both the van and defendant were no longer present, explaining that other occurrences during the surveillance distracted him in the interim. Ten minutes later, Detective McDonough saw the van pull up and park in the same location. Defendant was still in the driver's seat and a woman later identified as co-defendant Teresa Baskerville (Teresa),*fn2 defendant's sister, was seated in the front passenger seat.
Another male wearing glasses and a white shirt, who was walking on Magnolia Avenue, approached defendant's van. Defendant exited and met with this man on the sidewalk near the passenger side of the van. Seconds later, defendant opened the sliding door on the passenger side of the vehicle, reached in toward the rear of the van, and took out a small "sandwich-type" bag. Defendant removed a small item and gave it to the man, who in turn handed defendant what appeared to be paper currency. Upon witnessing this exchange, Detective McDonough believed that he had just observed a narcotics transaction. The transaction took place within 500 feet of public housing.
Teresa remained seated during the transaction. Afterwards, she exited the van and walked towards Front Street along with defendant. The two approached a car parked on the same side of the street as the van, examined the area of the driver's side front tire, and returned to the van. After making this observation, Detective McDonough radioed for an assisting unit to stop the man wearing the white shirt and glasses who had approached the van, but the two assisting take-down units were unavailable to do so because they were busy handling two other prisoners arrested during the course of surveillance that morning. Recognizing that there were not enough units to go after the unidentified male, Detective McDonough radioed his units with instructions to detain defendant and Teresa and to search the van. A search of the side door interior wall area, where McDonough observed defendant reach, revealed a ten-inch by five-inch "access panel" that was ajar and from which a plastic bag protruded. The bag was removed and, upon inspection, contained vials of suspected cocaine. Police then placed defendant and co-defendant under arrest and transported them to police headquarters for processing, where they recovered $13.75, a rubber band, and other personal items from defendant, and ten cents and other personal property from Teresa.
On appeal defendant raises the following points for our consideration:
POINT I THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
A. THE STATE FAILED TO OVERCOME THE PRESUMPTION OF ILLEGALITY BY PROVING THAT THE WARRANTLESS SEARCH OF THE MOTOR VEHICLE WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES.
B. THE POLICE LACKED PROBABLE CAUSE TO BELIEVE THAT THE VEHICLE CONTAINED EVIDENCE OF A CRIME.
POINT II 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 TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE CO-DEFENDANT INFORMED JURORS THAT THE DEFENDANT HAS A PRIOR CRIMINAL RECORD AND WAS IMPRISONED. POINT III
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 WHEN THE TRIAL COURT INFORMED THE JURORS THAT IF THE DEFENDANT WERE CONVICTED OF THE ...