On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 99-08-01077-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Parrillo and Messano.
Defendant Jeremiah German appeals from an order of the Law Division denying his motion for post-conviction relief (PCR).
Defendant was charged in a ten-count indictment with multiple drug offenses, involving a series of related events occurring on July 23, 1998 and September 24 and 25, 1998, that were consolidated for trial pursuant to Rule 3:7-6. Following trial by jury, defendant was found guilty of eight of those counts: three counts of possession of cocaine, N.J.S.A. 2C:35- 10(a)(1) (counts one, six and ten); two counts of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and seven); one count of distribution of cocaine in a quantity less than one-half ounce, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); and two counts of distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (counts five and nine).
Having been previously convicted of distribution, defendant was eligible for a mandatory extended term. N.J.S.A. 2C:43- 6(f). As a result, after merging count three (distribution) into count five (distribution within 500 feet of a public park), and counts six (possession of cocaine) and seven (possession of cocaine with intent to distribute) into count nine (distribution within 500 feet of a public park), the court imposed on these convictions concurrent ten-year terms of imprisonment with five- year parole disqualifiers. N.J.S.A. 2C:43-7(a)(4) and N.J.S.A. 2C:43-7(c). The court also merged count one (possession of cocaine) into count two (possession of cocaine with intent to distribute), and for that crime and the conviction on count ten (possession of cocaine) defendant was sentenced to concurrent five-year terms of imprisonment, to run concurrent to the other sentences. Thus, in the aggregate, defendant was sentenced to a ten-year term with a five-year parole bar. Appropriate fees and penalties were also imposed.
We recount the underlying facts as stated in our opinion affirming the judgment of conviction:
These convictions arose out of a police undercover narcotics operation targeting Ike's Postwar Club, a Morris Township bar located on Martin Luther King Avenue. The State's proofs at trial demonstrated that as part of this operation, Detective Swan of the Morris County Prosecutor's Office Narcotics Unit went to the bar at around 9:30 p.m. on July 23, 1998 to engage in a controlled buy of narcotics. At the time, there were ten to twelve people inside. Detective Swan engaged a man, later determined to be defendant, in a conversation about drugs. Defendant asked Detective Swan how much he wanted and Detective Swan replied that he wanted one bag of cocaine. Defendant then handed the detective a paper fold containing 0.99 grams of cocaine. Defendant said the price was $15 and Detective Swan paid him, passing his money low, as defendant had instructed.
During the transaction, Detective Swan made a mental image of defendant as a black male with black braided hair, about 5 foot 9 inches and 170 pounds, and wearing a white t-shirt, denim shorts and beige work boots. About ten minutes after the transaction, Detective Swan left the bar and returned to his car, where he radioed a description of the seller to his backup officer, Sergeant Jeffrey Paul, a seventeen year veteran of the Morristown Police Department, who was parked approximately twenty to twenty-five feet from the front door of Ike's Post War Club.
Sergeant Paul heard Detective Swan's description of the seller over the radio and, shortly thereafter, observed a man closely matching that description, in physical appearance and dress, emerge from the bar. Sergeant Paul recognized the man as defendant, whom he had known for more than ten years, as he was familiar with many of the residents in the area.
The officers did not arrest defendant that evening because the undercover operation was still ongoing and in fact, did not conclude until September 24, 1998, when police began to execute arrest warrants for those implicated in the sting. At 11:30 p.m. that evening, Morris Township Patrolman Thomas Manning and other officers entered Ike's Post War Club to arrest defendant. There were only three people in the bar at that time, including defendant who was standing against a wall, facing the bar.
Officer Manning arrested defendant and frisked him, discovering a wad of money totaling $828, comprised of one $50 bill, thirty-two $20 bills, ten $10 bills, six $5 bills and eight $1 bills. Manning then passed defendant off to another officer while he continued to search the area where he had observed defendant standing when police entered the bar. When he shined his flashlight on the floor where defendant had been standing, Officer Manning saw two plastic bags stuck together. One of the bags contained three corner folds of cocaine. The second bag contained ten ...