On appeal before Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges Payne and Lyons.
Defendant Ahmed Reed was arrested during a "buy and bust" drug operation. He was charged, found guilty, and sentenced on seven drug-related offenses. He now appeals, claiming that the State violated the Bankston rule,*fn1 the State impermissibly mentioned the Office of the Public Defender in questioning a defense witness, and his sentence was manifestly excessive. Based on a careful analysis of the record on appeal and the applicable law, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. In response to a citizen's "complaints" of drug activity in the area around 8 Vincent Court, Newark, New Jersey, police officers conducted a "buy and bust" operation at that locale. On March 15, 2006, at approximately 11:30 p.m., Newark Police Officer Phillip Turzani went to 8 Vincent Court, a public housing complex, along with Officers Richard Weber, Jimmy McCoy and Javi Rivera. Officer Weber was to act as a "shadow" for Officer Turzani, who would attempt to conduct the "buy and bust" operation. Both officers were undercover and dressed in plain clothes. Officers McCoy and Rivera were to remain outside of the complex but still in the immediate area.
Upon entering the hallway of 8 Vincent Court, Officer Turzani testified that he was immediately approached by defendant who was standing alone in the hallway. Defendant then stated, "I got that cookie," a street term referring to crack cocaine. In response, Officer Turzani said "let me get one" and handed defendant a ten-dollar bill, one which had been previously photocopied and logged from the Newark Police Department's narcotics fund. Defendant then walked up a flight of stairs and entered apartment 1B on the first floor. The apartment door was unlocked, and the residence appeared to be abandoned.
The officer further testified that, after entering the apartment, defendant retrieved a black magnetic key holder and removed an item from inside. He then handed Officer Turzani a small zip lock baggie of what was later identified as crack cocaine. At that point, Turzani and Weber identified themselves as police officers; defendant responded by running back into the apartment. After a short chase, the officers arrested defendant in the kitchen of apartment 1B. Officer Weber recovered the black magnetic key holder, containing three small baggies of crack cocaine. As part of a search incident to defendant's arrest, the police found the ten-dollar bill given to defendant by Officer Turzani for the buy, as well as an additional $51 on his person.
According to the police, no other individuals were present inside apartment 1B at the time of defendant's arrest. The electricity was on in the apartment, but the officers did not observe the presence of a television, Playstation, or table. Officer Turzani testified at trial that 8 Vincent Court is located within 1000 feet of the Hawkins Street Elementary School in Newark, and 8 Vincent Court is itself a public housing project.
Erica Ellis, the lone defense witness, gave a much different account of the evening. She resided at 9 Vincent Court on the evening of March 15, 2006. She stated she entered 8 Vincent Court at 10:30 p.m. that night with the intention of purchasing cocaine. She testified she was using drugs on a regular basis and admitted to consuming five to six dime bags of cocaine per day.
Once in 8 Vincent Court, Ellis said she encountered two men. At trial, she claimed to have not known these men previously and had no idea that they were undercover police officers. According to Ellis, the officers noticed drugs in her hand and asked her to get some for them. The officer handed her ten dollars for the purchase.
To procure the drugs, she proceeded to apartment 1B in the building. She claimed at trial to have purchased drugs from a man named "Joey" in that apartment. She also testified to seeing defendant in that apartment at that time playing with a Playstation in the living room.*fn2 She testified that she knew defendant from the area and acknowledged that he regularly got high in apartment 1B. After making the purchase, Ellis stated she gave the drugs to one of the men in the hallway. Instead of arresting her, the men pushed her aside and ran up the stairs to apartment 1B. Ellis, however, testified she made her way to the second floor where she heard the officers kick the door to 1B. She did not witness the arrest by the officers of defendant.
On November 21, 2006, Ellis had given a voluntary statement to an investigator in the Public Defender's Office. In that statement, she identified the men who asked her to purchase cocaine as undercover police officers. In her statement, she also stated that she purchased two dime bags from Joey, one for the officers and one for herself.
On cross-examination, Ellis admitted that she would be willing to lie if she thought it benefited herself. However, she did not believe her trial testimony would provide her with any personal benefit and she was, at the time of trial, enrolled in a drug treatment program.
On May 15, 2006, a grand jury in Essex County returned Indictment No. 06-05-1557 charging defendant Ahmed Reed with seven counts, including: third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count 1); third degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) & -b(3) (count 2); third degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count 3); second degree possession of cocaine with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count 4); third degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) & -b(3) (count 5); third degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (count 6); and second degree distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count 7).
The matter came to trial on January 10 and 11, 2007. At the conclusion of trial, the jury found defendant guilty of all seven charges against him. On March 8, 2007, the trial court, after merging various counts, sentenced defendant to a six-year prison term with a three-year parole disqualifier, along with ...