On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1951.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Tried by a jury, defendant Terrell Sanders was found guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count 1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count 2); and second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count 4).*fn1
For sentencing purposes, count 1 was merged with count 2, for which a mandatory extended term of ten years with a five-year parole bar was imposed, along with a concurrent ten-year term with a five-year period of parole ineligibility on count 4.*fn2
Appropriate fees and penalties were also imposed. Defendant appeals. Save for a limited remand to correct the judgment of conviction, we affirm.
According to the State's proofs, based on information from surveillance officers that a group of people were gathering in a local park to possibly engage in illegal activity, Jersey City Police Sergeant Thomas McVicar arrived at Bayside Park around 6:00 p.m. on September 3, 2006, in an unmarked vehicle and plain clothes. As he drove into the park, McVicar observed about fifteen to twenty people in a circle near one of the baseball fields. As other officers from the police department's Street Crimes and Uniformed Units neared, the group began to move off towards a stairway leading to a terrace. The police exited their vehicles, approached the group, and began to "sort out who was present," preventing the members from leaving the group. One of the individuals in the group was observed discarding some drugs and consequently was arrested at the park.
McVicar observed another member of the group, later identified as defendant, "remove what later turned out to be a magnetic key holder from his left pocket and click it on to one of the metal post[s] of the chain link fence" and then "slid a foot or two away from it and stopped." McVicar instructed members of his Unit to detain defendant, after which the sergeant walked over to the metal post, recovered the key holder, looked inside and saw four bags of suspected heroin with a "Hell Raiser" stamp on each bag. Defendant was then arrested. A search of defendant incident to his arrest revealed $418 in cash: one $100 bill, one $50 bill, nine $20 bills, five $10 bills, seven $5 bills, and three $1 bills.
Sergeant McVicar was the State's only fact witness. Sergeant Wally Wolfe of the Jersey City Police Department also testified, however, as an expert in narcotics packaging, use and distribution. According to Wolfe, heroin is packaged and sold in small glassine bags, containing less than one gram of heroin, and the bags are usually stamped with a logo that serves as a form of advertisement. Bags of heroin are affixed ten at a time in a plastic bag called a bundle; five of these bundles are then wrapped in magazine paper and taped tightly into what is called a brick. Thus, there are a total of 50 bags per brick. In New Jersey, the retail price of a bag of heroin ranges from $8 to $10.
Wolfe further explained that to avoid a drug possession charge, dealers commonly conceal the glassine bags in small garbage bags or potato chip bags, which are stashed in grass or trees, or in devices such as a magnetic key holder. Indeed, a drug dealer would be "foolish to possess multiple bags on [his] person because there's a lot of police, lot of narcotics officers frequent these drug markets . . . so people that work in these markets tend to stash things." For instance, in this case, the magnetic key holder contained four glassine bags still wrapped in plastic, indicating that they had been part of a larger bundle, and, therefore, use of this device is consistent with a dealer's method of stashing drugs.
In Wolfe's opinion, the absence of drug paraphernalia belies simple possession, as does the presence of varied denominations of currency. Unlike dealers who sometimes consolidate and exchange smaller bills for larger ones, buyers, on the other hand, typically scrounge up just enough money to buy one or two bags at a time, rather than "squirrel it away" by purchasing in bulk. Wolfe further elaborated on this point: when people come into a drug market, nine out of ten of them are ill, they get dope sick, so, it is associated with other things, other street crimes, burglaries, prostitution and people will go out commit crimes, come back to a market when they have money. [The buyer's illness is a] terrible cycle, terrible way to live.
On appeal, defendant raises the following issues for our consideration:
I. THE PROSECUTOR'S CLOSING STATEMENTS WERE INAPPROPRIATE; THE JUDGE ERRED IN DENYING A MISTRIAL BASED ON PROSECUTORIAL REMARKS.
II. THE JUDGE ERRED IN PERMITTING PREJUDICIAL TESTIMONY FROM THE STATE'S EXPERT REGARDING DRUG USERS' WAY OF LIFE CONTRARY TO N.J.R.E. 403 (not raised below).
III. DURING DELIBERATIONS THE JUDGE ERRONEOUSLY ACTED AS A WITNESS AND ANSWERED THE JURY'S QUESTION (not raised below).
IV. THE JUDGE ERRED IN DENYING DEFENDANT'S REQUEST TO ALLOW A PREVIOUSLY UNAVAILABLE WITNESS TO TESTIFY AT TRIAL.
V. THE SENTENCE IS EXCESSIVE.
We address these issues in the ...