On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Rodríguez and Newman.
Following a jury trial, defendant Carl W. Rowe was convicted of two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); and one count of second-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(2). These charges were based on four controlled purchases of cocaine. The judge granted the State's motion for imposition of a mandatory extended term on the second-degree conviction and imposed a fourteen-year term with a seven-year parole disqualifier on the second-degree conviction and concurrent four-year terms on the third-degree convictions. We affirm.
The State's proofs can be summarized as follows. In July 2003, Hammonton Police Detective Gerardo Martinez was assigned to the Atlantic County Strike Force to work on a narcotics investigation. Martinez's team included Atlantic County Prosecutor Investigators James Scoppa and Nicole Zulawski, and Hammonton Police Officer John Irwin.
Martinez asked James Bennett to call defendant to set up a purchase of cocaine. Bennett had grown up with Martinez and had recently been charged with a third-degree offense. Pursuant to an agreement, Bennett pled guilty to a disorderly persons offense and agreed to cooperate with Martinez as an informant. In exchange, Bennett was promised a probationary sentence.
Pursuant to this cooperation agreement, Bennett provided Martinez with information about defendant, whom he knew as "Craig." The State received approval to use a consensual intercept. A tape recorder was used to record telephone conversations between Bennett and defendant. The recorder had been checked for operability and a new tape was used. After the conversations were recorded, Scoppa took custody of the tape and secured it, removing the tabs to prevent re-recording.
First Controlled Purchase
On July 22, 2003, in the presence of Martinez and Scoppa, Bennett called defendant on the telephone in order to purchase narcotics. Martinez and Scoppa could overhear both sides of the conversation. Defendant told Bennett to go to the Wal-Mart parking lot in Hammonton. A police surveillance team went to that location. However, defendant did not show up. Bennett placed a second call to defendant in which defendant told Bennett to meet him at a fast-food store on Route 30. Minutes later, Martinez and Scoppa saw a burgundy Hyundai pull up to Bennett's vehicle on the driver's side. Bennett got out of his vehicle and entered the passenger side of the Hyundai and remained there for less than two minutes. Bennett and defendant's conversation was audio-taped, however, portions were difficult to understand. After Bennett left the Hyundai, defendant walked to the side door of the restaurant, which was locked. Defendant returned to the Hyundai and exited the restaurant parking lot.
Martinez contacted Irwin to assist in conducting a motor vehicle stop for identification purposes. Irwin saw the Hyundai cross Route 30 and stop at Hometown Video. Defendant went inside a video store and after exiting the store, continued eastbound on Route 30. Irwin made the requested motor vehicle stop at an apartment complex. This provided Martinez with the vehicle registration and the name and address of the driver.
Martinez then met Bennett to retrieve the cocaine and asked general questions. Martinez determined after this first transaction that Bennett was being "short changed." Instead of receiving half an ounce, which is equivalent to 14.18 grams, Bennett received only 8.38 grams.
Second Controlled Purchase
On August 13, 2003, Bennett was given $500 to purchase cocaine from defendant. The transaction took place at Bargain Brakes and Muffler on Route 30 and 206 during daylight hours. After Bennett arrived at the location, investigators noticed the same vehicle drive up with defendant. Bennett and defendant met briefly outside the establishment. Then Bennett left the location and met the police officers where he turned over 6.73 grams of cocaine.
Third Controlled Purchase
On August 18, 2003, Bennett arranged once again to purchase cocaine from defendant. Defendant agreed to meet Bennett at the Blockbuster Video parking lot. Bennett received $500 and instructions to purchase cocaine. Defendant arrived at the location in the same vehicle as used in the prior transactions. Bennett approached defendant, who had exited his vehicle. They both went into defendant's vehicle. In less than a minute, Bennett exited and met with investigators. He turned over 7.32 grams of cocaine.
Fourth Controlled Purchase
On September 11, 2003, Bennett and defendant met at the Bargain Brakes and Muffler store. Bennett was given $1,900 by the investigators. Defendant entered the shop where Bennett was waiting. Their interaction lasted between three and four minutes. Bennett left and later turned over to investigators 18.85 grams of cocaine. According to Investigator Zulawski, $1,900 should have purchased "like an ounce and a half" of cocaine, or about 43 grams.
Defendant was arrested and indicted. Prior to trial, defendant moved to suppress evidence of his identity. The motion was denied. Defendant moved unsuccessfully for reconsideration.
Defendant moved for a Driver*fn1 hearing to determine the admissibility of tape-recorded conversations between defendant and Bennett. In preparation for this hearing, defendant and his counsel came to the prosecutor's office to hear the tapes. Scoppa was present to operate the tape recorder and protect the tapes. While the tapes were being played, defendant spoke to both Scoppa and counsel and sometimes to Scoppa directly. Specifically, while reviewing the August 18, 2003 tape, Scoppa had marked a portion of the tape as "inaudible." Defendant corrected Scoppa, informing him that he had said "cradle to the grave" and made a reference to "Jet Lee [sic]." According to Scoppa, there were several other instances where defendant made corrections, saying that "no, I didn't say this I said that." Scoppa testified that he did not ask defendant questions. After defendant made a few comments, counsel advised defendant not to say anything.
Scoppa identified the voices as those of defendant and Bennett. Scoppa testified that some sections of the transcript had to be labeled "inaudible" because he could not understand what was being said on the tape. The total running time of the audiotapes was twenty-eight minutes. The judge admitted the tapes subject to specific revisions. The judge also denied a motion to suppress statements made by defendant while at the prosecutor's office in preparation for the Driver hearing.
Prior to the beginning of trial, the Assistant Prosecutor noted that Bennett would not be available to testify. According to the Assistant Prosecutor, her office had been "making every effort to get him here [in court]," but had so far been unsuccessful. The Assistant Prosecutor requested an adjournment in order to make further attempts at contacting Bennett. The judge held an evidentiary hearing in order to hear from Martinez regarding the steps that had been taken in contacting Bennett.
Martinez testified that three months earlier, he met with Bennett at police headquarters. Bennett told Martinez that he would be moving to North Carolina soon. Martinez attempted to serve Bennett with a subpoena and stopped by Bennett's place of employment. The employer said that Bennett picked up his last check and had not been seen or heard from since. Bennett's home had been sold. Martinez made numerous unsuccessful attempts at contacting Bennett, however, was once able to reach him by telephone. During that telephone call, Bennett informed Martinez that unless Martinez wanted to come down and find him, he was not coming up to New Jersey.
At the hearing, defendant objected to the State's request for an adjournment and sought to dismiss the indictment with prejudice for prosecutorial misconduct for withholding the information regarding Bennett. The judge denied the adjournment, but refused to dismiss the indictment, finding no prosecutorial misconduct.
During the trial, Martinez testified about his multiple efforts to contact Bennett. The following day, the Assistant Prosecutor informed the judge that she had learned the night before, from a defense witness, that informant was residing in Mays Landing. Thus, the Assistant Prosecutor requested that defendant be prohibited from asking the jury to draw an adverse inference regarding the non-appearance of Bennett because a defense witness had knowledge of informant's whereabouts. A second evidentiary hearing was then held outside of the presence of the jury.
Sergeant Samuel Cucciniello testified that he had spoken with defense witness Maria Quintella Oritz the night before. Ortiz indicated that she had known defendant for approximately a year and a half and also was familiar with Bennett through his ex-girlfriend, Linda Rodriguez. Ortiz had knowledge that Bennett never moved to North Carolina, ...