July 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SADIQ THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0912.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2009
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Sadiq Thomas was convicted of third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1). The jury found defendant not guilty of third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). As a result of the acquittal on the charge of possession with intent to distribute, two additional charges related to possession with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and possession with intent to distribute within 500 feet of public housing, a public park or a public building, N.J.S.A. 2C:35-7.1 were dismissed. The judge sentenced defendant on the possession offense to a prison term of four years together with appropriate penalties, fees and costs. Defendant's driver's license was also suspended for six months. Defendant appeals, and we affirm.
These are the facts adduced at trial. On the afternoon of October 7, 2005, Detective Joseph Frost, Officer Linda Cantalupo and Office Joseph Wallace of the Newark Police Department, Narcotics Enforcement Task Force, were in a marked police vehicle while on patrol in the area of Thomas and Brunswick Streets in Newark. At that time, Frost, who was driving the vehicle, observed defendant accepting paper currency and handing something to the driver of a black BMW.
From a distance of approximately twenty-nine feet, Frost observed what he characterized as a "hand-to-hand" transaction with currency and a small object.
Detective Frost did not know the defendant previously. He turned the corner quickly, but the BMW took off traveling south on Brunswick Street, and the defendant ran back towards Thomas Street. Frost did not pursue the BMW because the policy of the Newark Police Department is not to pursue a vehicle in the absence of a gun, a homicide or violent crime. He communicated his observations to Cantalupo and Wallace and told them to get out to pursue the fleeing suspect. Cantalupo jumped out but failed to open the rear door for Wallace who remained with Frost as he drove ahead of Cantalupo onto Murray Street. While staying in communication with Cantalupo through the police radio, Frost drove onto Broad Street, where he attempted to block off defendant and incurred a flat tire on the curb.
Officer Cantalupo saw defendant run through a gate and toss something to the ground, which turned out to be two glassine envelopes of heroin. The officer retrieved them while still observing where defendant was running. While in pursuit, Cantalupo's police radio fell out of its harness, and she had to slow down to retrieve it by pulling upon its cord which was attached to her shoulder mike. Defendant ran down Thomas Street, past a school (Our Lady of Liberty School) and out to Broad Street. Officer Cantalupo never lost sight of him.
Defendant ran into the middle of Broad Street, and after opening the door for Wallace, Frost ran and tackled the defendant placing him under arrest. Wallace then handcuffed defendant.
In a search incident to the arrest, Frost found in defendant's right pocket 13 glassine envelopes of heroin, stamped "killer" in red ink, along with $15.00 in cash. Also, defendant had dropped two more glassine envelopes of heroin, stamped "killer" in red ink, and they were recovered by Cantalupo.
Cantalupo took control of the evidence and field-tested the contents. The evidence was sent to the State Police laboratory, and the parties stipulated to the certification of analysis confirming that the suspect drug was heroin.
On appeal, defendant argues:
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 PROSECUTOR'S USE OF CHARACTER ASSASSINATION TO PROVE HER CASE (Not Raised Below)
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 PROSECUTOR'S MISCONDUCT (Not Raised Below)
A. The Prosecutor Suggested To Jurors That They Need Not Deliberate Carefully Because The Case Is Not Important
B. The Prosecutor Misrepresented The Evidence, Telling Jurors That The Police Testified They Saw Defendant Sell Drugs When The Police Never Testified To That Purported Fact
THE TRIAL COURT VIOLATED 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 BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS (Not Raised Below)
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS We have carefully reviewed the record and considered the arguments of counsel and we are satisfied that defendant's arguments are without merit. R. 2:11-3(e)(2). We offer the following additional comments.
We reject defendant's argument that the prosecutor's reference to him during summation as a "drug dealer" amounted to character assassination. During her summation, the prosecutor said: "[T]his defendant is a street-level drug dealer." Defendant argues that "[t]he clear intent was to impugn the defendant's character and to suggest that he had a criminal disposition and a propensity to possess and sell drugs. Jurors would have concluded that the defendant must have possessed the drugs because he sells them."
While we agree that the use of the term "drug dealer" is pejorative, we note that in the context in which the term was used, the charges of possession with intent to distribute heroin generally and specifically within 1,000 feet of a school or within 500 feet of public housing, a public park or a public building were still extant and under consideration by the jury. The thrust of the offense was that defendant possessed the heroin for the purpose of "dealing" it. The context of the remark was appropriate. We find no plain error here clearly capable of producing an unjust result. See State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971); State v. Whitaker, 402 N.J. Super. 495, 512 (App. Div. 2008), certif. granted, 197 N.J. 476 (2009); State v. N.A., 355 N.J. Super. 143, 149 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003).
We reach the same conclusion regarding the comment concerning the "importance" of the case. Again, context is critical. During his summation, defense counsel questioned why no fingerprints were taken. The prosecutor responded during her summation:
I do want to touch on the whole issue of fingerprints. If this was an important case, if this was [as defense suggests] - - there would be fingerprints. Ladies and gentlemen, there is no jury charge, there's no burden on the [S]tate to produce fingerprints. There is no forensic evidence charge in this case. Furthermore, there is not a need for fingerprints. This isn't a who-done-it. We're not trying to figure out who had it. We know who had it cause the officer saw him with those drugs. They saw him sell those drugs. This is not a mystery. There was no need to do fingerprints in this case.
The prosecutor addressed the relevancy of the absence of fingerprints since the officers had observed the alleged crime being committed. We find no merit in this argument. R. 2:11-3(e)(2). We reach the same conclusion regarding defendant's assertions directed to Frost's observation of the "hand-to-hand" transmittal.
We likewise reject defendant's argument regarding the failure to charge prior inconsistent statements. The instructions to the jury regarding credibility were more than sufficient in this case to address the concerns of counsel. See State v. Hammond, 338 N.J. Super. 330, 341-44 (App. Div.), certif. denied, 169 N.J. 609 (2001). There was no plain error in the failure to charge prior inconsistent statements.
Finally, the four-year sentence was well warranted. The judge carefully weighed the aggravating and mitigating factors and given that defendant had been arrested on thirty prior occasions resulting in six prior indictable convictions, the sentence was not excessive by any reasonable standard.
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