On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Reisner.
Defendant James J. Hinton was convicted by a jury of the following third-degree crimes: distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3); CDS possession with intent to distribute, N.J.S.A. 2C:35-5b(3); and CDS possession, N.J.S.A. 2C:35-10a(1). He was given an extended term of ten years with five years of parole ineligibility.*fn1 He appeals from the conviction and the sentence. We affirm.
The trial evidence may be summarized as follows. At about 2:07 p.m. on February 2, 2006, Officer Daniel Newman of the Asbury Park Police Department, who was using binoculars to conduct undercover surveillance from an unmarked police car, saw defendant engage in a hand-to-hand sale of drugs. Newman first saw defendant enter a pizza parlor. Shortly thereafter, he saw two men, later identified as Rodney Ivory and Kevin Miller, approach the restaurant. Miller handed Ivory some money, and Ivory entered the pizza parlor and apparently bought drugs from defendant. According to Newman, he saw Ivory hand defendant some money and he saw defendant hand Ivory a small package of what appeared to be crack cocaine. Newman testified that he could see the transaction clearly, because the pizza parlor had a large glass front and defendant was standing near the doorway.
When Ivory emerged from the pizza parlor, Newman observed him giving Miller what appeared to be a portion of the cocaine.
Newman alerted his backup team, Officers Eddy Raisin and Sergeant Michael Barnes, who arrested Miller and Ivory and recovered a small amount of crack cocaine from each of them. They also recovered a homemade crack pipe from Ivory. After the backup team recovered the drugs from Miller and Ivory, Newman watched defendant for about another half hour to see if he would make any other drug sales, and then arrested him at about 2:40 p.m. Defendant had no drugs in his possession but had $188.92 in small bills.
Officer Raisin and Sergeant Barnes testified to their respective arrests of Ivory and Miller, and the later inventory of defendant's possessions after Newman arrested him. On cross-examination, Raisin admitted being aware that defendant had signed a harassment complaint against him. Raisin also admitted having been a witness in an earlier municipal court case in which defendant "had a whole bunch of charges on him." Later that day, defense counsel explained to the judge that he asked the question because his client wanted to show that Raisin was a witness in the municipal case "in an attempt to show some bias on the officer's part against Mr. Hinton."
The judge clarified that, in pre-trial rulings, he had not held that this information would be inadmissible, but rather had indicated that he would address it during trial on a question by question basis. However, during the colloquy, he ruled that Raisin's testimony was irrelevant to show that defendant was arrested due to police bias, because Raisin was not the officer who arrested Hinton in this case. Further, the judge ruled that admitting evidence of the other municipal charges would tend to confuse the jury. Additionally, counsel later clarified that Raisin had not actually testified against defendant in municipal court, but was scheduled to testify in the future. The judge thereafter instructed the jury to disregard any mention of the municipal court matters.
At the trial, Ivory testified in some detail that defendant sold him ten dollars worth of crack cocaine, which Ivory then shared with Miller. Ivory identified defendant in court as the person who sold him the drugs. Ivory testified that at the time he bought the cocaine, he had known defendant for about three months.
Because the defense did not interpose a timely objection, as required by N.J.S.A. 2C:35-19, the State was permitted to prove that the substance recovered by the police was cocaine by introducing a certified copy of the laboratory analysis, instead of producing the lab chemist to testify. The trial judge had initially ruled that the State would have to produce the chemist because, on the day of trial, defendant refused to sign a stipulation that the substance was cocaine. However, after ascertaining that the chemist was not available, the judge reconsidered that ruling, after learning that the State had sent the defense "the proper notice [required] under N.J.S.A. 2C:35-10 of their intention to use the laboratory certificate" but the defense had not served a timely or written objection as required by N.J.S.A. 2C:35-19.
The day before he issued the revised ruling, the judge had confirmed with defense counsel the court's understanding that "Mr. Hinton is not contesting that Mr. Ivory had taken off his person, or Mr. Miller had taken off . . . his person cocaine. He's not disputing that. He's just saying that if they had cocaine, I never gave it to them." Defense counsel replied, "[r]ight," and confirmed that he had advised his client that "it would be appropriate to sign the stipulation because it doesn't hurt his case one iota. He's saying I don't care if there was a sale or not, I had nothing to do with it." Further, just before the judge decided to admit the certificate, defense counsel again agreed on the record that the defense did not object to the certificate; that as a matter of trial strategy he never interposed unnecessary objections to such certificates; and that in this case "I have no reason to dispute it [the certificate], and it's irrelevant to my defense." After thoroughly discussing the applicable case ...