On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-02-0499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Wefing, Messano and LeWinn.
Defendant Timothy Brown appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(b)(3); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). After appropriate mergers, the judge sentenced defendant to an extended term of ten years imprisonment with a five-year period of parole ineligibility on the possession with intent to distribute conviction, and a concurrent ten-year term with a five-year parole disqualifier on the conviction of possession with intent to distribute within 500 feet of public property.
Defendant raises the following issues on appeal;
THE WARRANTLESS SEIZURE, SEARCH AND ARREST OF APPELLANT TIMOTHY BROWN AND HIS PASSENGER WERE UNCONSTITUTIONAL (NOT RAISED BELOW EXCEPT AS TO [THE] CELL PHONE)
THE STATEMENTS OF CO-CONSPIRATORS WERE ADMITTED HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE WITHOUT INDEPENDENT PROOF OF A CONSPIRACY INVOLVING APPELLANT TIMOTHY BROWN
PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL
THE COURTS SHOULD NOT ALLOW POLICE OFFICERS TO AVOID THE STATUTORY REQUIREMENT FOR ATTORNEY GENERAL APPROVAL OF RECORDED CONVERSATIONS BY RESORTING TO USE OF A VERBATIM TRANSCRIPT OF AN OVERHEAR
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S CONSTITUTIONAL CHALLENGES TO THE LACK OF RANDOMNESS IN THE COMPOSITION OF THE JURY PANEL RESULTING IN GROUP BIAS AND TO IRREGULARITIES IN THE SELECTION OF ALTERNATES
THE TRIAL JUDGE ERRED IN NOT ALLOWING A CLAWANS CHARGE REGARDING THE ABSENCE OF MR. ROBINSON AND MS. ANDREWS FROM TRIAL
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANTS A REVERSAL AND A NEW TRIAL
IMPOSITION OF THE MAXIMUM EXTENDED TERM WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant was indicted along with co-defendant Michael A. Robinson who entered a guilty plea prior to trial. Defendant was tried alone.
Atlantic City Police Detective Owen Ingenito testified that on December 28, 2005, he arrested Rachel Andrews, a/k/a Barbie, for prostitution. While in custody at the police station, Andrews told Ingenito that "she had some information she wanted to talk about." Ingenito had Andrews speak to Sergeant James Sarkos.
After speaking to the woman, Sarkos watched Andrews dial a number on her cell phone, and listened to the ensuing conversation between Andrews and an unidentified male voice. Sarkos testified:
When [Andrews] dialed the number, I could hear a male's voice answer the phone. He said: Hello.
She then asked for Timmy.
The male says: No, it's Mike.
And . . . she says: Mike, it's Barbie.
And he says: What's up, Barbie girl?
And she then asked for Timmy and he informs her that Timmy is at Caesar's and asked her what does she need ...