On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-01729.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges R. B. Coleman andSimonelli.
Defendant Zico Newton appeals from the February 17, 2006 judgment of conviction entered following a trial by jury between November 14 and November 17, 2005, in the Law Division, Middlesex County. We affirm the judgment of conviction.
The jury found defendant guilty of fourth degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-5b(12), as charged in the third count of Middlesex County Indictment No. 04-12-01729.*fn1 The court sentenced defendant to a mandatory extended term of five years pursuant to N.J.S.A. 2C:43-6f for repeat drug offenders. The court also sentenced defendant on two violations of probation and imposed two fifteen month terms to run concurrent with each other and concurrent to the five-year term on the conviction for possession with intent to distribute. In addition, defendant's license was revoked for a six-month period and appropriate fines were imposed. The facts established at trial include the following. In October 2004, following an informant's tip on the location of illegal drug trafficking, the Anti-Crime Unit of the New Brunswick Police Department conducted surveillance in a residential neighborhood consisting of two adjacent apartment buildings at 54 and 56 Roosevelt Avenue in New Brunswick. The buildings are located on a dead-end street and are considered to be in a high crime area known for drug distribution. A six foot tall chain link fence stands at the end of the street and separates the apartment buildings from a vacant lot and adjacent industrial park on the other side of the fence.
On October 21, 2004, around 5:00 p.m., Detective Christopher Plowucha was conducting the surveillance from a concealed location, approximately 150 feet away from defendant, using binoculars for visual enhancement. Detective Plowucha first observed defendant, Zico Newton, in front of 54 Roosevelt Avenue and there were about a half dozen other people in his field of sight. The detective observed a Hispanic male approach and briefly converse with defendant, then hand defendant cash. Defendant pocketed the cash then walked away from the Hispanic man and toward the back of 56 Roosevelt Avenue.
Detective Plowucha watched defendant crawl through a hole in the chain link fence, bend down and lift a piece of carpet from the ground. He retrieved a sandwich bag of marijuana from underneath the carpet, replaced the carpet and returned to the Hispanic man. Defendant handed the man the bag of marijuana and the man promptly left the area. Detective Plowucha radioed his backup units and informed them that he had located defendant's stash of drugs. He directed the backup unit to take defendant into custody.
Detective Plowucha then guided, via radio from his undisclosed surveillance location, one of his backup officers, Lieutenant Paul Schuster, to the location of defendant's stash under the piece of carpet. At all times, Plowucha was able to observe Schuster locate and retrieve the contents of the stash. Underneath the carpet, Schuster found four quarter ounce bags of marijuana, four $20 bags, and numerous baggies used to package marijuana. Based upon the detective's observations, defendant was taken into custody, and the indictment was returned that eventually led to defendant's trial and conviction for possession with intent to distribute.
On appeal from that conviction, defendant raises the following contentions, which we shall address in turn:
POINT I: THE TRIAL JUDGE'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE WAS AN ABUSE OF DISCRETION WHICH RESULTED IN A DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.
A. DEFENDANT'S RIGHT TO EFFECTIVE CROSS-EXAMINATION WAS UNFAIRLY DENIED BY THE TRIAL JUDGE IN ITS DENIAL OF DEFENDANT'S APPLICATION TO DISCLOSE THE POLICE SURVEILLANCE LOCATION.
B. DEFENDANT'S RIGHT TO DUE PROCESS WAS DENIED BY THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT'S MOTION TO DISCLOSE THE IDENTITY AND/OR ROLE OF THE CONFIDENTIAL INFORMANT.
POINT II: THE STOP OF DEFENDANT WAS NOT BASED ON ANY REASONABLE AND ARTICULATE SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPPRESSING THE EVIDENCE. (NOT RAISED BELOW).
POINT III: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF POSSESSION AND OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTION ON COUNT TWO MUST BE VACATED.
POINT IV: STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE ...