On appeal from the New Jersey Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-00567.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2008
Before Judges Winkelstein and Gilroy.
On June 15, 2006, a Union County Grand Jury charged defendant with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2c:35-5b(3) (Count Two); two counts of second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Counts Three and Five); and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four). Counts Three and Five were dismissed prior to trial. Tried to a jury, defendant was convicted on all of the remaining counts.
On December 15, 2006, defendant, having ten prior convictions for manufacturing, distributing, or possessing a CDS with intent to distribute, was sentenced on Count Two to a mandatory extended term, N.J.S.A. 2C:43-6f, of eight years of imprisonment with a four-year period of parole ineligibility. He received an identical sentence on Count Four, to run concurrent with the sentence on Count Two. Count One was merged with Count Four. The aggregate sentence was eight years of imprisonment with a four-year period of parole ineligibility.*fn1
Defendant appeals, and we affirm.
On March 23, 2006, Detective Kevin O'Brian of the Plainfield Police Department assembled a team of approximately twelve police officers to execute search warrants obtained for defendant's person, defendant's automobile, two Plainfield residences at 702 South Avenue and 904 East 2nd Street, and a storage facility in Watchung. One of the officers who attended the meeting was a member of the New Jersey State Police "Gang Unit North." At about six o'clock that evening, the officers established surveillance of the two residences.
In the interim, based on information received from another officer, O'Brian, driving an unmarked police car, began following defendant's vehicle. After observing defendant pull his vehicle over and stop on the north side of the 300 block of East Front Street, O'Brian parked his car approximately one car behind defendant's vehicle.
Meanwhile, Obie Holland had telephoned defendant requesting that defendant bring heroin to his house at 310 East Front Street. While waiting on his front porch, Holland saw defendant flash his vehicle's headlights. Immediately thereafter, Holland walked across the street and entered defendant's vehicle. As Holland passed in front of O'Brian's vehicle, O'Brian observed what he believed was money in Holland's hand.
After Holland entered the vehicle, defendant drove away, eventually stopping in the 300 - 400 block of East 2nd Street. While in the vehicle, Holland "[b]ought three bags of heroin from [defendant]." After a couple of minutes, Holland got out of the vehicle and began walking toward a vacant lot. Based on information relayed by O'Brian, Detective Michael Casperson and Sergeant Michael Richards walked toward Holland and announced themselves as police officers. As the officers approached and began to reach for him, Holland "[d]ropped three folds of heroin to the ground." Detective Casperson recovered the folds and placed Holland under arrest. The folds were stamped with the words "money bags." In the interim, defendant drove off out of O'Brian's line of sight. At that point, Detective Ronald Fusco, traveling in an unmarked police car, took over the surveillance of defendant. Soon thereafter, O'Brian resumed surveillance of defendant with the other officer.
Fusco and O'Brian continued to follow defendant's vehicle for a short distance. As defendant made a left-hand turn onto Woodvine Avenue, O'Brian, traveling about two car lengths behind defendant, saw an item fly out of defendant's driver's side window and land on the street. O'Brian stopped and retrieved the item, a packet of fourteen glassine folds of heroin bundled with a rubber band. These folds were also stamped with the words "money bags."
Based on information transmitted by O'Brian throughout the surveillance, other officers stopped defendant at the corner of Arlington Avenue and Woodvine Avenue, not far from where the packet was thrown from defendant's vehicle. After arriving at the scene, O'Brian searched defendant's vehicle and found an additional fold of heroin under the driver's seat bearing the same "money bags" stamp. Additionally, O'Brian found $366 in paper currency scattered throughout the front of defendant's vehicle, and a cellular phone. After the search of defendant's vehicle was completed, defendant was placed under arrest and transported to the Plainfield Police headquarters.
Following a brief meeting at headquarters, O'Brian and the team of officers executed a search warrant at 702 South Avenue. No contraband was found during the search. The officers next executed a search warrant of an apartment at 904 East 2nd Street. Although no drugs were found inside the apartment, police recovered a clear sandwich bag containing two glassine envelopes of heroin from the apartment's back porch. Mail bearing the name of defendant was also found inside the apartment. The officers then executed a search warrant at the storage facility in Watchung, but the search proved negative for CDSs.
On the first day of testimony, the prosecutor asked O'Brian questions not only about the existence of the search warrants, but also regarding the execution of the warrants at the two residences. In responding to one of the prosecutor's questions, O'Brian indicated that the search warrants had been issued by a judge prior to their execution:
Q: Okay. And I'd just like to show you what's been previously marked by the State as S-1 for identification. I'm going to show it to the defense attorney first. I show you for identification. Take a look at this and tell us what this appears to be.
A: This is the correspondence search forms and affidavit that was submitted to the [j]udge.
No objection was made to any of these references, and no curative instruction was provided to the jury.
Later that day, the following exchange took place during a sidebar conference:
[Defense Counsel]: Your Honor, [the prosecutor] just indicated that [defendant]'s not charged with the two folds that were supposedly found in the bag with the rice. The indictment does not indicate that -- which -- which of the heroin he's supposedly charged with. I mean, can there be some stipulation that he's not charged with that?
COURT: Well, if he's not charged with it, why did it come into evidence?
[Prosecutor]: Judge, I was just merely presenting everything. The paperwork, he's not charged with the paperwork. H[e]'s not charged with driving over the speed limit but I just merely presented it -
[Prosecutor]: -- to give a full picture of the case.
COURT: -- but that's different. But that's different, okay. And I could tell you that when I was working on the charge during the break, I assumed --
COURT: All right. You want me to tell the jury that -- that he is not charged for that and ...