On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-06-0872.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Fuentes and Simonelli.
A jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1) (count two); and second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). The trial judge merged count one with count two and sentenced defendant to a fifteen-year term of imprisonment with a five-year period of parole ineligibility, and to a concurrent seven-year term of imprisonment on count three. The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for six months.
On appeal, defendant raises the following contentions:
POINT I - THE FAILURE OF THE TRIAL COURT TO ORDER THE DISCLOSURE OF THE CONFIDENTIAL INFORMANT DENIED DEFENDANT A FAIR TRIAL. POINT II - IT WAS ERROR NOT TO SUPPRESS THE EVIDENCE SEIZED FROM DEFENDANT AFTER AN UNLAWFUL ARREST WITHOUT PROBABLE CAUSE.
POINT III - DEFENDANT MARTINEZ'S EAVESDROPPING ON DEFENDANT'S TELEPHONE CONVERSATION IN THE HOLDING CELL IS TANTAMOUNT TO COVERT COERCION IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT. (NOT EXPRESSLY RAISED BELOW EXCEPT THAT IF THE ARREST WAS ILLEGAL, THIS ALLEGED STATEMENT WOULD BE POISONOUS FRUIT)
POINT IV - DEFENDANT'S SENTENCE WAS EXCESSIVE.
The following facts are summarized from the record. Detective Jose Martinez of the Union County Prosecutor's Office, a thirteen year veteran of the Narcotics Strike Force, testified that at approximately 4:00 p.m. on November 1, 2001, he received a tip from a confidential informant whose previous tip to him led to the seizure of cocaine, thousands of dollars in currency and the arrest and conviction of more than one individual. The informant disclosed that a cocaine transaction would occur that day at approximately 6:30 p.m. at a specific residence in Plainfield, later identified as defendant's residence. The informant indicated that a Hispanic male driving a black pickup truck would arrive at the residence, enter the driveway and deliver cocaine to a twenty-seven year old, dark-haired Hispanic female named "Jenny."
After receiving this tip, Detective Martinez, Sergeant Steven Siegel of the Narcotics Strike Force, and Sergeant Wayne Williams, Detective Bell and Detective Robert Henderson of the Plainfield Police Department Narcotics Unit, set up surveillance near defendant's residence to corroborate the confidential informant's information.
Detective Martinez testified that the officers arrived at the scene at approximately 5:30 p.m. in three unmarked police vehicles. Two vehicles parked at opposite corners of the residence while Detective Martinez drove the third vehicle back and forth in front of the residence. At approximately 6:00 p.m., the detective saw a Hispanic woman, later identified as defendant, approach an African-American man in front of her residence and engage in conversation. The African-American man "was looking back and forth, walking back and forth and looking around as if waiting for somebody." Defendant walked back toward the rear of the driveway, and the African-American man continued to walk back and forth. Defendant then walked from the driveway to the front of her residence and was "looking back and forth as if she was waiting for somebody."
According to Detective Martine, at approximately 6:45 p.m., he saw a black pickup truck arrive at defendant's residence and pull into the driveway. He then saw a second Hispanic woman standing outside the pickup truck speaking with defendant and the African-American male. Defendant then walked toward the back of her residence carrying a brown plastic bag, which she did not have in her possession before this interaction. The second Hispanic woman then ...