On appeal Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-12-1249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued October 23, 2008
Before Judges Stern, Rodríguez and Waugh.
Defendant David Phillips appeals his conviction for third-degree distribution of a controlled dangerous substance (CDS) and the resulting extended term sentence of five-years imprisonment, with three years of parole ineligibility. We reverse and remand for a new trial.
On February 23, 2005, the Trenton Police conducted an anti-narcotics operation, targeting the 500 block of Hoffman Avenue in Trenton. Sergeant Paul Gendron was in charge and Detective William Mulryne was assigned to conduct surveillance. The operation was prompted by information received by law enforcement that marijuana was being distributed from a building in that vicinity.
At approximately 11:30 a.m., Mulryne positioned himself on the roof of a building on Hoffman Avenue. Between 12:00 p.m. and 1:00 p.m., Mulryne saw two separate vehicles drive up to 528 Hoffman Avenue. He observed the drivers of each vehicle engage in what he believed to be narcotic transactions with co-defendants Lamar Tyson and Randy Hawkins, the targets of the surveillance operation. The vehicles departed and their drivers were not subsequently identified or apprehended by the police.
At approximately 1:10 p.m., Mulryne observed a green Jeep Cherokee pull up to 528 Hoffman Avenue. The driver was a black male, but Mulryne was unable to provide any description beyond the driver's race and gender. Mulyrne subsequently identified Phillips as the driver.
Mulryne observed Hawkins, who was posted at the apartment door, call upstairs for Tyson, who in turn came down and approached the Jeep's open passenger's side door. Phillips handed Tyson a yellow plastic bag, from which Tyson removed a clear plastic bag. Mulryne testified that the clear bag was full of "suspect marijuana." Tyson quickly returned the clear bag into the yellow bag. After reaching into his pocket, Tyson handed Phillips a large amount of currency. The entire transaction lasted approximately 15-20 seconds.
As soon as the exchange was completed, Tyson shut the door to Phillips's Jeep and ran into the apartment building, where Hawkins was waiting for him. Mulryne believed that the pair then entered apartment 3C. Phillips pulled away and headed towards Coolidge Avenue.
As the Jeep left the area, Mulryne called for assistance in stopping Phillips. Officer Daniel Pagnotta stopped the Jeep at approximately 2:00 p.m. As he approached the vehicle, he observed currency "strewn about" on Phillips's lap and "stuffed in his pants." Pagnotta ordered Phillips out of the vehicle and placed him under arrest. A total of $2,026.00 was found on Phillips and in the vehicle.
After Phillips's arrest, Gendron sought and received a search warrant for 528 Hoffman Avenue, apartment 3C, as well as for Tyson and Hawkins. At approximately 6:00 p.m., the search warrant was executed, with Mulryne's assistance. Significant amounts of marijuana, and related packaging materials; a digital scale; "gang literature," containing the "[s]treet names of certain gang members"; and an illegal handgun were found during the search. The occupants of the apartment were placed under arrest, including Tyson and Hawkins. The contents of the clear plastic bag, which had been found with the yellow plastic bag, were subsequently determined to be marijuana.
All of those arrested at the apartment were taken to the police station for processing. When they entered the processing area, they came into contact with Phillips, who was sitting on a bench. They exclaimed that Phillips had "set them up" and that "[t]hey were going to get him." Phillips did not respond, and was later released on bail.
Phillips was indicted on December 8, 2005, as part of a fourteen count indictment including eight other defendants. Phillips was charged with the following offenses: fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count 1)*fn1 ; third- degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count 2); second-degree possession of CDS with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1 (count 3); and third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(11) (count 4).
Phillips's case was severed from the other defendants.*fn2 The State chose to proceed against him on only one charge, the third-degree distribution of CDS (count 4). The prosecutor stated at the beginning of the trial that it was doing so for the sake of simplicity. As already noted, Phillips was convicted and sentenced to a five-year extended term, N.J.S.A. 2C:43-6(f), with three years parole ineligibility. This appeal followed.
Phillips raises the following issues ...