On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-04-565.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Simonelli.
Following a jury trial, defendant James Smith was convicted of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and third-degree conspiracy, N.J.S.A. 2C:5-2. The jury acquitted defendant of third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1). The State moved for an extended term, which was granted, and after appropriate mergers, the judge sentenced defendant to a seven-year jail term, with a three-and-one-half year period of parole ineligibility. The judge also imposed the applicable fines and penalties and suspended defendant's driver's license. Defendant appealed, and we affirm.
These are the facts adduced at trial. On February 1, 2007, Detective Ronaldy Martinez of the New Brunswick Police Department conducted surveillance in the area of a residence located on Seaman Street in New Brunswick (the house). Detective Martinez, a member of the New Brunswick Anti-Crime Unit,*fn1 had obtained a search warrant for the house. The search warrant named defendant. The house is located within 1,000 feet of Roosevelt School and New Brunswick Health Sciences Technology High School. Detective Martinez's surveillance occurred during the day time, his location was within one hundred and fifty feet of the house, and nothing obstructed his view of the house or the alley-way next to it. Detective Martinez used binoculars to enhance his observation of the area.
At one point during the surveillance, a Hispanic woman walked toward the house while talking on her cell phone. A few minutes later, defendant exited the house through a side window, entered the alley-way, removed a large bag from under the siding of the house and removed a smaller bag from within the large bag. Defendant then re-entered the house and met the woman on the front steps of the house. Detective Martinez then witnessed defendant hand the woman the smaller bag of suspected cocaine in exchange for cash. The woman then placed the bag into her mouth and walked away.
There were two back-up units parked nearby during this interaction. Detective Martinez remained in radio and cell phone contact with these units throughout the surveillance. Detective Martinez, as well as the other officers in the back-up units, wore plain clothes with a badge to identify themselves as police officers. After observing the interaction between defendant and the female, Detective Martinez remained in his surveillance location and advised the back-up units to not make an arrest. The detective did this because he was afraid that the female would swallow the bag if an officer approached her.
At some point after these observations, Detective Martinez observed a white male walk into the area and wait across the street from the house. The detective then observed Morgan Brown, a co-defendant, ride a bicycle to the house. Brown walked across the street, engaged in a short conversation with an unidentified male and then walked back to the alley-way next to the house. Brown then reached under the siding, removed the large bag and several smaller bags from the large bag. Brown walked back across the street to the male and exchanged multiple bags of suspected cocaine for cash. At this point, the male placed the bags into his mouth and left the area. Brown placed the remaining bags in his mouth and also left the area on his bicycle. The detective did not advise the back-up units to arrest either the white male or Brown because he was afraid that they would swallow the bags of suspected cocaine.
Immediately after Brown left the area, Detective Martinez rejoined the back-up units, and they proceeded to execute the search warrant on the house. Detective Martinez knocked on the front door and rang the doorbell, but no one answered. The detective noticed that the door was unlocked, so he entered the house yelling, "police, search warrant." Defendant appeared on the second-floor landing with a child. Detective Martinez advised defendant of his rights, and defendant cooperated with the police officers. The police officers found two cell phones and $241 in cash on defendant. The officers also found several sandwich bags in the attic and more sandwich bags, some with the ends cut off, in the trash can located in the alley-way. While the police were executing the search warrant, Brown returned to the house and was consequently arrested.
After securing the inside of the house, Detective Martinez instructed Detective Michael Yurkovic to go to the alley-way where he had observed defendant and Brown remove the cocaine. Detective Yurkovic indicated that he had been assigned to the "perimeter team," to ensure that no one entered or exited the house during the execution of the search warrant. Specifically, the detective was assigned to the alley-way next to the house. As a result of his conversation with Detective Martinez, Detective Yurkovic approached the siding of the house and recovered two plastic bags filled with an unknown substance. One of the bags contained seven smaller bags and the other contained twenty-one smaller bags. The substance in these bags later tested positive for crack cocaine.
In addition to Detectives Martinez and Yurkovic, the State proffered Marc Levy, an investigator with the Middlesex County Prosecutor's office, who was qualified as an expert in the field of possession of a CDS with intent to distribute. Levy opined that the CDS was possessed with the intent to distribute based on the location of the bags, the fact that the parties placed the bags in their mouths, the involvement of more than one person and the manner in which the CDS was packaged.
Brown testified on behalf of defendant. He indicated that on February 1, 2007, defendant's mother and his siblings lived at the house, but defendant lived with his girlfriend elsewhere. Brown stated that although defendant did not live at the house, he went there regularly to check on his mother and to utilize a music recording studio located in the basement. Brown admitted to being arrested at the house on February 1, 2007, and to pleading guilty to possession of CDS with intent to distribute within 1,000 feet of a school.
Brown noted that on February 1, 2007, he arrived at the house at approximately three o'clock in the afternoon. As Brown rode his bicycle towards the house he noticed a white male, to whom he normally sold drugs, walking up Seaman Street. Brown approached the male and asked, "what's good," to which the male replied that he had twenty dollars. At this point, Brown went into the alley-way, retrieved the bag of cocaine from under the siding, and proceeded to make the sale.
After this sale, Brown went into the house and gave defendant money to hold for him because Brown did not want to have that much money on him while standing outside. Brown testified that he gave defendant around $243 but no more than $250. Brown then left the house on his bicycle to conduct more sales. Later that day, Brown returned to the house to drop off more money, but the police were there. The police arrested Brown, and when they informed him that they found drugs under the siding, he admitted that they were his.
On cross-examination the State questioned Brown regarding his plea form. The State directed Brown to line 20 of the plea agreement, which states "have any promises or representations been made by you, the Prosecutor, your defense attorney, or anyone else, as a part of this guilty plea." Brown admitted that he did not claim that defendant had nothing to do with the drugs on this line but left the line blank. Brown also testified that he wrote a letter on August 24, 2007, in which he stated that defendant "had nothing to do" with the sale of drugs on February 1, 2007, and he gave this letter to defense counsel. Brown admitted that the letter did not mention Brown going into the house and asking defendant to hold his money. When asked why he did not include this, Brown stated that he did not know that he had to discuss the money in his letter. Brown also admitted to not appearing at his scheduled sentencing.
During deliberations the jury asked whether the charges were independent of one another and whether defendant could be guilty of a crime for his knowledge of someone else's possession of narcotics. The judge informed the jury that each charge was a separate offense to be considered individually and that the answer to the second question was no. Additionally, the jury asked if defendant could be guilty of possession with intent to distribute but not guilty of mere possession and whether there were two different definitions of "possession." The judge explained that the definition of possession was the same, regardless of where it was used. The judge then redefined possession and discussed the concepts of actual, constructive, sole and joint possession. The jury returned its verdict without any further questions.
On appeal, defendant raises the following issues:
THE PROSECUTORS' [SIC] STATEMENTS DURING HIS OPENING STATEMENT AND DURING SUMMATION PREJUDICED SMITH AND CAUSED AN UNJUST RESULT. (Not Raised Below)
A. The Prosecutor's Disparaging Comments about Defense Counsel During Summation Led to an Unjust ...