On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern, Lyons and Waugh.
Defendant Keith W. Cunningham appeals his conviction and the resulting sentence arising out of a drug transaction. We affirm the conviction on all counts, but, as the State concedes is necessary, remand for resentencing.
The facts of the case are largely taken from the testimony presented at Cunningham's trial. On September 21, 2004, at approximately 7:30 a.m., State Troopers David Yeager and Jack Donegan were driving through Ablett Village, a public housing project located in Camden. They were in the area attempting to serve a fugitive warrant. At trial, both Yeager and Donegan testified that they knew Ablett Village to be "a documented narcotics distribution location."
As they drove through the community in an unmarked vehicle, Yeager was "trying to look at the people that [they were] driving by to make sure they [were] not the person [they were] actually looking for." When they were approximately thirty feet away from Cunningham, Yeager and Donegan observed him walk to an empty clothesline where he retrieved something from the clothespin bag. Cunningham then walked over to another man and exchanged the item from the clothespin bag for money. Based on their training, both Yeager and Donegan believed they witnessed a drug-related transaction.
Yeager and Donegan exited their vehicle and approached Cunningham and the other man. The troopers were in plain clothes, but carried police identification hanging around their necks and wore bullet proof vests on top of their clothes with a large "State Police" label on the front and back. Donegan testified that he "ran up on [Cunningham and the other man] indicating that [he] was State Police." Cunningham ran as Donegan approached.
When Cunningham fled, Donegan "ran up to where the hand-to-hand transaction had taken place" and retrieved a "red heat-sealed bag containing a white rock-like substance" which had been dropped. Donegan pursued Cunningham on foot and saw him discard two additional "red heat-sealed bag[s] of a white rock-like substance." After pursuing Cunningham for two blocks, Donegan apprehended him. The alleged purchaser was never pursued.
After Cunningham had been arrested and put in the police car, Yeager and Donegan returned to the clothesline where they had initially seen him. From the clothespin bag, they retrieved one plastic bag containing four smaller clear plastic bags; three of these bags contained twenty small bags of a white rock-like substance; one bag contained nineteen bags of a white rock-like substance.
On December 4, 2004, Cunningham was indicted on four counts: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, park, or building, N.J.S.A. 2C:35-7.1 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count four). Cunningham pled not guilty and was tried over three days in October 2006.
Both Donegan and Yeager testified at trial recounting the facts laid out above. Additionally, Donegan verified the evidence and property inventory sheet completed for the bags he and Yeager had retrieved while arresting Cunningham. Donegan also testified that the evidence had been marked and turned over to the Camden Police Department's custodian of evidence. The evidence was sent to the State Police laboratory for testing and was determined to be cocaine.
Carmello Villegas, an employee in the evidence room at the Camden Police Department, testified for the State. Villegas stated that the evidence is returned from the State Police laboratory in heat sealed initialed bags. These bags are not opened "until [the case] gets to court."
Terry King, an investigator for the Camden County Prosecutor's Office, testified for the State. King was qualified by the court "as an expert in narcotics, narcotics distribution, also including street level distribution." King testified that "the smaller bags which are held inside the plastic sandwich bag in a bundle-like fashion [with] small quantities of crack cocaine inside the bags" was packing consistent with street level distribution as opposed to packing for defendant's personal use.
Cunningham testified on his own behalf at trial. He stated that he was in Ablett Village on the morning of September 21, 2004, because he worked at a trucking company across the street. He was talking to Richard Johnson when the police approached. According to Cunningham, Donegan stuck his head out of the police car and demanded that Johnson come over and talk to him. Johnson approached the car and Cunningham walked away.
Cunningham testified that, shortly thereafter, he heard Donegan say, "Hey you," just prior to Donegan putting his gun against him and telling him "to get on the ground." Cunningham testified that Donegan then "stomped on [his] hand" and his arm, which "was already broken,  was being pulled." He testified he gave Donegan his name, date of birth, and social security number. Donegan then called dispatch to see if Cunningham had any outstanding warrants and dispatch responded, "Negative." Cunningham admitted that he had a crack pipe and cocaine on his person and that Donegan took both and destroyed them. According to Cunningham, he was not arrested at this point.
Cunningham testified that, following the exchange with Donegan, he went across the street to a friend's apartment because the friend had witnessed the entire incident and wanted to help clean him up. Thirty to forty-five minutes after entering the friend's apartment, Donegan came to the door with another trooper looking for Cunningham and arrested him because they "found [his] stash." Cunningham asserted he had never seen the "stash" and did not know what the troopers were talking about. Upon being led out of the apartment, Cunningham saw Johnson "cuffed standing outside a car."
Cunningham denied ever selling drugs as charged and only admitted to possessing a crack pipe stem and "a half-open bag of crack cocaine." He admitted that he "had a drug problem at that time."
On October 26, 2005, the jury found Cunningham guilty of all charges. He was sentenced on January 27, 2006. At sentencing, the State's motion for an extended term, based on Cunningham's status as a repeat drug offender, N.J.S.A. 2C:43-6(f), and a persistent offender, N.J.S.A. 2C:44-3(a), was granted. The trial judge then merged count one into count two and sentenced Cunningham to a seven-year term of imprisonment for count two; a concurrent twelve-year term of imprisonment for count three, subject to six years of parole ineligibility; and a concurrent eighteen-month term of imprisonment for count four. In sum, Cunningham was sentenced to an aggregate of twelve years in prison with six years of parole ineligibility and various fines. This appeal followed.
On appeal Cunningham raises the following issues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL ARGUMENT AND INSTRUCTION TO THE ...