On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Fisher and Baxter.
Defendant Hernandez Estelus appeals from his May 5, 2006 conviction following a trial by jury on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count three). After the jury returned its verdict, but prior to sentencing, defendant entered a guilty plea to an unrelated indictment, No. 05-11-1261, which charged fourth-degree contempt, N.J.S.A. 2C:29-9. At sentencing, the judge merged count one of the drug indictment with count two and sentenced defendant on count two to a four-year term of imprisonment, which was concurrent to a five-year term of imprisonment on count three. That sentence was ordered to be served concurrently with the one-year term of imprisonment on the contempt charge. Appropriate fines and penalties were imposed. We affirm.
On November 18, 2004, at approximately 9:00 p.m., Elizabeth police officers Vincent Napoli and Rense Schalen were conducting undercover surveillance of Jefferson Park from their post on the third floor of an apartment building across the street. According to Napoli's testimony, by using binoculars the two were able to see an unidentified male wearing a white hat approach defendant and engage in what the officers believed was a hand-to-hand narcotics transaction. By radio, Napoli contacted backup officers DeMarco and Geddes and provided them with a description of defendant and his location. As DeMarco and Geddes drove toward defendant, he dropped a brown paper bag. DeMarco retrieved the bag, in which he found seventeen vials of cocaine. Defendant was arrested and charged with the offenses we have described.
Defendant called as a witness Hughes Brun, whom he had known for eleven years. Defendant was the godfather of Brun's child. According to Brun's testimony, on the night in question, the two walked from East Broad Street to Jefferson Park where they sat at one of the chess tables while Brun awaited a cab. As the cab approached, a police car entered the park at a high speed and stopped. Two officers emerged from the police vehicle, handcuffed defendant and put him in the back of their vehicle. Brun testified that no one in a white hat approached defendant in the park that night, defendant had no drugs in his possession that Brun knew of, and defendant did not interact with anyone in the park other than police.
On cross-examination, Brun was asked without objection whether he had ever contacted police to tell them he had information regarding the incident. Brun answered "nope." He acknowledged knowing where police headquarters and the prosecutor's office were located. He said he had never contacted law enforcement because he knew "nothing [was] going to be done about it. So it's a waste of time."
Defendant's testimony mirrored that of Brun. He denied having CDS in his possession or selling it. He asserted that the first and only time he had ever seen the brown paper bag containing the vials of cocaine was when police showed it to him while he was seated in the back seat of the police car in handcuffs.
The judge instructed the jury using the model jury charges for the three offenses in question. Defendant did not object to the charge. The jury deliberated, returning the verdict we have described. On appeal, defendant raises the following claims:
I. THE PROSECUTOR'S QUESTIONING OF HUGHES BRUN CONCERNING WHY HE DID NOT COME FORWARD EARLIER WITH HIS TESTIMONY EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA AND DEFENDANT'S CONVICTION MUST BE REVERSED. (NOT RAISED BELOW)
II. INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW)
II. THE DEFENDANT'S GUILTY PLEA TO INDICTMENT 05-11-1261 MUST BE VACATED AS IT WAS NOT VOLUNTARILY ENTERED AND DEFENDANT WOULD LOSE ANY BENEFITS TO HIS PLEA IF THIS ...