On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. No. 02-05-1845.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges A. A. Rodríguez and Collester.
At about 5:30 p.m. on August 18, 2001, Irvington police officers Brian Rice and Maurice Gattison along with Fanwood police officer (former Irvington officer) Ken Zwirko and Essex County Sheriff's Detective Reginald Holloway were patrolling 22nd Street in Irvington, which was known to be a high drug trafficking area. They had received many complaints that day of drug activity at 184 22nd Street. When they arrived, they saw co-defendants Hassan Ali and Reynaldo Jordan standing in front of the abandoned multi-story building. After spotting the police, Jordan threw a bag into a rear window of the house, and Ali dropped an object. Both were detained. Ali had dropped a pink cap containing cocaine, and the glassine envelope thrown by Jordan contained heroin.
At this time Officer Zwirko saw defendant and co-defendants Mark Williams and Darryl Williams in a room on the first floor of the building. Defendant was holding a plastic bag. When the officers ordered the three to halt, Mark Williams threw a bag out the window to the ground which was later found to contain vials of cocaine. All three men then ran upstairs. Entering the house, the officers found plastic bags known as "stash bags" on the first floor and $395 in cash.
K-9 Officer Rice arrived at the scene with his dog Bilko, and Bilko led the officers to a third floor closet. Officer Rice announced that if anyone was in the closet, they should immediately leave or the police dog would be turned loose. When the door opened, one man ran out and the other two were subdued by Bilko and the officers. The individual who ran from the closet was identified as defendant David Minor a/k/a David Smith. After he was arrested, defendant was searched and $9 was found on his person as contrasted with co-defendant Reynaldo Jordan who had $497.
At trial the State called Detective Holloway as an expert witness, and he responded to a hypothetical question that both the heroin and the cocaine were possessed with the intent to distribute. Defendant did not appear for his trial, and no witnesses were presented on his behalf.
On appeal defendant argues the following:
POINT I-THE PROSECUTOR'S IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 & 10. (Not Raised Below.)
POINT II-THE DEFENDANT'S AGGREGATE SENTENCE OF TEN YEARS, WITH FIVE YEARS PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS. VI AND XIV. (Not Raised Below.)
Although the defense presented no witnesses, defense counsel suggested that the jury draw an inference from the fact that only $9 was found on defendant to conclude that he was a buyer or bystander as opposed to a participant in drug distribution. Responding to the point in her summation, the prosecutor stated:
[W]here [are] David Smith and Mark Williams?
They are both in the closet. And even after they are told, announced, yelled out by Officer Rice, ...