On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0588.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Fisher and Baxter.
In this appeal, we consider among other things whether defendant's right to a fair trial was violated by the prosecutor's arguments to the jury--in contravention of our holding in State v. Holmes, 255 N.J. Super. 248, 252 (App. Div. 1992), which condemned a similar "call to arms"--that illegal drugs are "a scourge on our society." Because this departure from the proper bounds of advocacy did not prejudice defendant, we affirm.
Defendant was indicted along with two others. Those counts in the indictment directed at defendant are the following: second-degree conspiracy to distribute controlled dangerous substances (CDS) (count one), N.J.S.A. 2C:5-2; third-degree possession of CDS (counts two and four), N.J.S.A. 2C:35-10(a)(1); second-degree possession with the intent to distribute CDS (count three), N.J.S.A. 2C:35-5(b)(2); third-degree possession of CDS with the intent to distribute (counts five and seven), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-35-5(b)(3); third-degree possession of CDS with the intent to distribute on school property (counts six, eight and eleven), N.J.S.A. 2C:35-7; and third-degree possession of CDS with the intent to distribute (count ten), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11).
At trial, the jury heard testimony of police officers who described the sale of CDS by defendant and others on September 8, 2005 in Irvington. On that date, police watched as defendant approached a tan Toyota and reached into the car to take from the driver money, which he placed in his pocket. Defendant then signaled "with his hand like telling him'two,'" prompting co-defendant Taylor to walk into the nearby residence at 267 Ellis Avenue. Taylor quickly reappeared and walked back to the vehicle, looked around, pulled something from his pocket, and handed it to the driver, who then drove away. The observing officer radioed backup police vehicles, which were unable to locate the Toyota to confirm the suspicion that defendant had engaged in a drug transaction with the occupants of the Toyota.
A similar event soon followed. This time, a small white pickup truck approached and parked nearby. Co-defendant Vernell Scruggs, a passenger, exited the truck, approached defendant and handed him money. Defendant again signaled "two" with his fingers; co-defendant Washington entered 267 Ellis Avenue, quickly exited, approached the truck and handed Scruggs two items. The truck then departed. Following this event, the truck was stopped and defendant Scruggs was found holding two packets of heroin, which bore the words "BLACK JACK" in red ink. Defendant, Taylor and Washington were detained and officers also searched 267 Ellis Avenue, where they found a large shoe box containing 149 packets of heroin stamped with the words "BLACK JACK" in red ink, as well as other CDS. A search of defendant uncovered $587 in cash.
The only defense witness was defendant's girlfriend, who testified that two days earlier she had given defendant $600 to be used as a deposit on an apartment they planned on renting.
At the conclusion of the two-day trial, defendant was convicted of the offenses charged in count one and counts four through eight; he was acquitted of the other charged offenses.
Later, the trial judge granted the State's motion for the imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). After all appropriate mergers, defendant was sentenced to a seven-year prison term, with a three-year period of parole ineligibility on count six, and a concurrent seven-year prison term on count eight, which was ordered to run concurrently with the sentence on count six.
Defendant appealed. He has argued that he was denied the right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution, claiming specifically:
I. THE PROSECUTOR'S RELIANCE ON THE DEVASTATING EFFECTS OF DRUGS ON SOCIETY TO PERSUADE THE JURY TO CONVICT THE DEFENDANT
II. THE CONFUSING, AMBIGUOUS, AND UNINTELLIGIBLE INSTRUCTION ON THE LAW OF CONSPIRACY ...