On appeal from Superior Court of New Jersey, Law Division, Union County, No. 05-06-0744.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Wefing and LeWinn.
Tried to a jury, defendant was convicted of one count of third-degree distribution of a controlled dangerous substance, cocaine and heroin, in violation of N.J.S.A. 2C:35-5(a)(1).
Defendant, who had two other indictments pending against him at the time, entered a negotiated plea of guilty to two counts of fourth-degree criminal contempt, N.J.S.A. 2C:29-9, after the jury returned its verdict. When defendant appeared before the trial court for sentencing, the court granted the State's motion to sentence defendant to an extended term. The trial court sentenced defendant to six years in prison for distribution of narcotics, with a three-year period of parole ineligibility. The trial court also sentenced defendant to serve one year in prison for each criminal contempt conviction, to be served concurrently with each other and concurrently with the six-year term. Defendant has appealed. We have carefully reviewed this record in light of the contentions advanced on appeal, and we are satisfied defendant's convictions and sentence should be affirmed.
Defendant's trial was brief. The State presented two witnesses, Detectives Michael Black and Kevin O'Brien of the Plainfield Police Department. Detective Black testified that he was conducting a surveillance operation in an unmarked vehicle at the intersection of West Third Street and Stebbins Place in Plainfield on the late afternoon of March 31, 2005. Detective Black knew the area had a high volume of drug trafficking. He said that he saw defendant standing near a store at the intersection when he was approached by another man. The two engaged in a brief conversation and then defendant walked out of the detective's view while the other man waited. After approximately one minute, defendant returned. Detective Black observed defendant hand the man a small object and the man hand currency to defendant. The man placed the object in the left sleeve of his jacket and walked away.
Based upon his experience, Detective Black believed he had just witnessed a narcotics transaction, and he radioed a description of the man who left the scene to his backup team, who stopped the man a short distance away. They recovered a packet of narcotics from his jacket sleeve. Detective Black then radioed directions to arrest defendant.
Detective O'Brien testified that he stopped a man, later identified as John Modera, based upon the description he received from Detective Black. He searched the left sleeve of Modera's jacket and recovered three glassine envelopes of heroin and one bottle of cocaine from an outside pocket on the upper left arm. He also recovered a syringe from Modera's right front pants pocket. There was no contention that the syringe was linked in any way to defendant.
Detective O'Brien returned to the scene at Detective Black's direction and arrested defendant. When defendant was arrested, he did not have any drugs on his person but did have $520 in cash in various denominations. Detective O'Brien testified that it was not uncommon that someone involved in selling narcotics would not have any drugs on him but would secrete a "stash" in a nearby location.
Defendant elected not to testify and called only one witness, Detective Black. Detective Black testified that as part of the booking procedure, he counted the money that had been recovered from defendant and that it was composed entirely of twenty dollar bills, as opposed to a mixture of denominations.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. ...