On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0874.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Carchman and Lihotz.
Following a jury trial, defendant Freddie King was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of heroin in a quantity of less than one-half ounce with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree distribution of heroin in a quantity of less than one-half ounce, N.J.S.A. 2C:35-5a(1) and -5b(3); and third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7. After appropriate mergers, the trial judge sentenced defendant to an aggregate term of ten years imprisonment with five years of parole ineligibility together with statutory penalties, assessments and license suspension. Defendant appeals, and we affirm.
The facts related to the charged offenses are simply stated. On April 8, 2005, Jersey City Police Sergeant Michael McNally, a twenty-year veteran of narcotics investigations, was conducting a surveillance at the Booker T. Housing Projects in Jersey City, when at 10:40 a.m., he observed a white male wearing a black waist length jacket really faded blue jeans, and he was carrying a black plastic bag. And he was com[ing] from the west on Bright Street walking eastbound on the south side of Bright Street.
As he crossed Fremont and began approaching the front entrance to Bright Street, I saw him greet a black male standing in front of the main entrance way, the Bright Street entrance, into the Booker T Housing Projects. The black male had on a black leather jacket and some kind of team patches all over the jacket. I believe they were a baseball team. I don't know if it was major league or Negro league team patches. He was standing right there. They greeted each other warmly.
After identifying defendant as the "black male," the Sergeant continued I observed the white male, who was later identified as Michael Verdin [sic], raise his hand up, finger, as if saying one. At that time he produced green currency. Mr. King took the green currency and nodded to him and entered into Bright Street, more specifically - the Bright Street entrance - more specifically, 86 Fremont.
During this time, McNally was parked "[d]irectly across the street," some 30 to 35 feet away from defendant and Verdon, with no obstructions to his view.
According to McNally, defendant reemerged from inside 86 Fremont Street in "[a]bout a minute, maybe a little less." Defendant then "walked back out to the sidewalk where Mr. Verdin [sic] was standing, and dropped a small item into his hand." Verdon had been waiting with his palm up to accept the delivery. Verdon then cupped his hand, and he and defendant "tapped fists as if like shaking hands." Verdon proceeded walking eastbound on Bright Street, while defendant left walking westbound. After defendant crossed Bright Street to the other side, McNally lost visual contact with him.
McNally then radioed his perimeter units with descriptions and directions of travel of Verdon and defendant, believing that he had just witnessed a narcotics transaction. He positively identified both individuals after he was alerted that they had been stopped. 86 Fremont Street is within 1,000 feet of school property - the Hudson County Vo Tech High School.
The perimeter unit of the surveillance operation was manned by Officer Terrance Doran, a twelve-year veteran of the Jersey City Police Department. According to Doran, he received a radio transmission from Sergeant McNally at approximately 10:45 a.m. that day. As a result of that transmission, he and his partner stopped Verdon just east of the location where McNally had witnessed what he believed was a narcotics transaction. Verdon "voluntarily surrendered one glassine bag of heroin from his left front pants pocket. He reached in and gave it to me." Doran positively identified that glassine bag in the courtroom.
Doran placed the bag into his pocket, placed Verdon under arrest, and searched him. The search revealed only "a black shopping bag . . . that had food and soda in it." After securing Verdon in their unmarked vehicle, Doran and his partner proceeded westbound. Doran's partner parked the vehicle and stayed with Verdon, while Doran entered into the courtyard of the Montgomery Projects and met up with two other police officers. The three officers observed defendant, who matched the description that McNally had given them, walk out of the front door of 567 Montgomery Street. They walked up to him and placed defendant under arrest. A pat-down of defendant by Doran yielded nine dollars in cash in the form of a five-dollar bill and four singles.
The State produced a forensic expert, Leah King, who established that the drugs recovered by the officers tested positive for heroin.
Relevant to his various claims on appeal, we now relate the facts related to defendant's competency. Following his arraignment, defendant participated in a series of status conferences, at which time he demanded that his attorney "have a complete psychiatric evaluation done of him." His attorney reported that "he's indicated to me that there would be repercussions for me if I do not do so." Defendant also insisted on transcripts of every court proceeding as well as independent lab testing of every bag of heroin that had ever been seized from him. At a status conference of April 10, 2007, defendant refused to sign plea papers, asserting that he did not understand what the attorney was talking about.
As to the request for a psychiatric workup, the judge denied the request and noted that defendant had sent the judge a cogent, well-written letter. The judge concluded that based on her observations as well as defendant's letter, defendant was clearly competent, and she denied the application for a competency exam. This appeal followed.
On appeal, defendant raises the following issues:
IT WAS ERROR NOT TO CONDUCT A COMPETENCY HEARING PRIOR TO TRIAL THEREBY DENYING DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS COMPROMISED BY INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
A. Defense Counsel's Performance was Deficient.
1. Failure to Develop Expert Testimony Regarding the Diminished Capacity Defense.
2. Lack of Preparation in Presenting Defendant's Motion for a Retrial ...