On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-09-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lyons and Waugh.
Defendant Jason Lee Briggs appeals his conviction for distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), as well as the resulting sentence of seven years incarceration with a three-year period of parole ineligibility and related fines and penalties. We affirm the conviction but remand for resentencing.
We glean the following facts from the record. On September 1, 2005, Officers Ordell Taylor and Mark Reiner of the Franklin Township Police Department were on patrol. They were assigned to the "crime suppression unit," which is an "undercover unit" intended to address "quality of life issues." At the time, the officers were in plainclothes and an unmarked car.
At about 7:45 p.m., the officers pulled into the parking lot of a Shop Rite that had been closed down. There were, however, several small stores in the strip mall, including a liquor store and a pizzeria, as well as a pay phone in front of the stores. The officers noticed a green Chevrolet Malibu, with one occupant, parked and idling in an isolated area of the lot.
As the officers entered the parking lot, another car -- a gray Acura -- also pulled into the lot and stopped in front of the liquor store. A man, later identified as Briggs, exited the car and walked into the liquor store. The Acura then left the lot. Five to seven minutes later, Briggs came out of the liquor store carrying a brown paper bag.
At the same time Briggs left the liquor store, the man in the green Malibu, later identified as Lawrence Pfeiffer, got out of his car and walked to the pay phone. Pfeiffer picked up the pay phone and appeared to be having a conversation. Briggs then approached the pay phone and the two men greeted each other with a handshake. The two officers testified that, at the time of the handshake, Pfeiffer took money out of his pocket and handed it to Briggs, who in return placed an item in Pfeiffer's palm. Pfeiffer looked at the item and then put it in his pocket. The officers were unable to see what was passed from Briggs to Pfeiffer. At the close of the exchange, Briggs walked into the pizzeria and Pfeiffer walked towards his car.
The officers got out of their car and approached Pfeiffer, identifying themselves as police officers. Taylor told Pfeiffer what he had observed. Taylor retrieved two small bags of crack cocaine from Pfeiffer, who told Taylor that he received the cocaine from Briggs. Taylor stayed with Pfeiffer while Reiner went to investigate Briggs.
Reiner watched as Briggs went into the pizzeria's bathroom, came back out, and then left the pizzeria. Once outside, Reiner approached Briggs, identified himself, and questioned him about the exchange with Pfeiffer. Briggs, who had already given Reiner his identification, told Reiner that he knew Pfeiffer and had just come over to get a piece of pizza.
Reiner went back to the police car where Taylor was holding Pfeiffer, who was then placed under arrest. Reiner stayed with Pfeiffer while Taylor went to talk to Briggs. Taylor told Briggs what he had seen and what Pfeiffer had told him. Briggs told Taylor that he knew Pfeiffer and that Pfeiffer liked to party, so he got something for him. Briggs was placed under arrest.
Detective Sergeant Darin Russo, who was in charge of the crime suppression unit at the time of the incident, was on the road when he heard a radio transmission concerning the exchange in the parking lot. He went to the parking lot and saw Taylor and Reiner. Russo joined Taylor in questioning Briggs. Russo was responsible for ...