On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-08-1529.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Luis Santiago was convicted of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one); fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count two); third-degree sale and/or disposition of a sawed-off shotgun, N.J.S.A. 2C:39-9b (count three); second-degree possession of a firearm while committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1 (count four); third-degree possession of an imitation controlled dangerous substance, N.J.S.A. 2C:35-11 (count five); third-degree distribution of a controlled dangerous substance, Methylenedioxymethamphetamine (MDMA) (also known as "ecstasy"), N.J.S.A. 2C:35-5a(1) (count six); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count seven). At sentencing, after denying the State's motion to impose an extended term on defendant as a persistent offender, N.J.S.A. 2C:44-3, the court merged count three into count four and imposed thereon a ten-year period of imprisonment with five years of parole ineligibility and a consecutive four-year term on count seven. The court also imposed five-year terms of imprisonment with two-and-one-half year periods of parole ineligibility on counts one, five, and six, to run concurrent with each other, but consecutive to count four. On count two, the court imposed an eighteen-month term of imprisonment with nine months of parole ineligibility, to run concurrent to count one and consecutive to count four. Accordingly, defendant's aggregate sentence is nineteen years with seven-and-one-half years of parole ineligibility. Defendant appeals, and we affirm.
According to the State's proofs, Detective Melissa Pera of the Bergen County Prosecutor's Office Narcotics Task Force, used a confidential informant (C.I.) to arrange a meeting with, and be introduced to, defendant. This meeting took place at around 6:50 p.m. on February 10, 2005, in the parking lot of the Chili's Restaurant in the Garden State Plaza shopping center off Route 17 in Paramus. When Pera arrived, the C.I. introduced her to defendant, who identified himself as Kodaphi. Pera then asked defendant about purchasing cocaine and a sawed-off shotgun. Defendant told Pera he had a "short" shotgun to sell for $350, along with a box of ammunition, and that the gun was small enough to conceal in her jacket or pants leg, or underneath a car seat. Defendant also told Pera he would sell her a half-ounce of cocaine for $600, and at some later time, an ounce of cocaine for $800.*fn1
Another meeting was arranged for February 22, 2005, at which time Pera arrived in the Chili's parking lot at about 6:00 p.m. and parked her unmarked patrol car next to the car in which defendant and the C.I. were seated. Both defendant and Pera exited their cars and walked behind one of the vehicles, where defendant handed Pera a bag of cocaine as well as a bag of marijuana for which defendant said there would be no charge. Next, defendant reached into the backseat of the car in which he arrived and retrieved a black plastic bag, which he then placed in the backseat of Pera's vehicle. When Pera opened the bag, she saw that it contained a sawed-off shotgun and ammunition. Pera then paid defendant $1000 and discussed a future purchase of more than a half-ounce of cocaine and ecstasy.*fn2
Pera met again with defendant and the C.I. on March 16, 2005, this time in the parking lot of the Empress Diner in Fair Lawn. Defendant told Pera that he had forgotten to bring her samples of ecstasy. The two repeated their earlier discussion of a purchase of more than one-half ounce of cocaine, and the meeting ended.
Nine days later, on March 25, 2005, Pera, defendant, and the C.I. met again at the same location. On this occasion, however, Pera was accompanied by another undercover detective, Myra Pilipski, of the Rutherford Police Department. Pera parked her car next to the one containing defendant and the C.I. She and Pilipski then got into the backseat of the other car. Pera introduced Pilipski as her friend and then discussed drugs with defendant. Defendant gave Pera four tablets packaged in plastic, which he said were ecstasy pills.*fn3 Pera did not pay for the pills because they were a sample. She and defendant then discussed how much it would cost her to buy ecstasy pills; defendant told her that he paid $5.75 per tablet and that she would have to pay him more than that. The two also discussed another drug purchase.
Another meeting was arranged for May 4, 2005 at the Chili's parking lot. Prior to the meeting, Pera and other members of the Narcotics Task Force decided to arrest defendant after the planned drug transaction. Arrangements were made to have the C.I. leave the site of the anticipated encounter between Pera and defendant prior to the transaction and arrest.
At around 5:00 p.m., Pera arrived at the parking lot and parked her car near the restaurant. She saw defendant and the C.I. arrive in a car and walked over to them, at which point, as prearranged, the C.I. left to go into the restaurant. Pera and defendant then entered her car, where defendant gave her a bag of 40 ecstasy tablets that he described as "very good[,]" and she gave him $500 in exchange.*fn4 The meeting was recorded.*fn5
When Pera and defendant exited the car and started walking toward Chili's, Pera gave the prearranged arrest signal to backup Officers Elliott Cookson and Don Ingrasselino of the Bergen County Prosecutor's Office, who were wearing their badges around their necks, a vest and a jacket labeled "police." Cookson then drove toward defendant and Pera and stopped them, at which point Ingrasselino got out of the car and said, "Police." Defendant ran toward Chili's, but fell to the ground when Cookson caught him. Defendant struck at the officers, flailing his arms and kicking with his legs. Defendant was ultimately arrested and handcuffed. Pera was also "arrested" and handcuffed to protect the identity of the C.I.
On the basis of this evidence, the jury convicted defendant of the various drug and weapons offenses charged.
On appeal, defendant raises the following issue:
I. DETECTIVE PERA'S TESTIMONY THAT SHE DEVELOPED INFORMATION ABOUT DEFENDANT THROUGH THE CONFIDENTIAL INFORMANT, AND THE PROSECUTOR'S IMPERMISSIBLE CHARACTERIZATION OF DEFENDANT IN SUMMATION AS "NOT A NOVICE" IN DRUG SALES DENIED DEFENDANT A FAIR TRIAL. (Not raised below)
A. Detective Pera's Testimony Conveyed to the Jury That Defendant Was a Known Drug Dealer Prior to the Instant Charges.
B. The Prosecutor Intensified the Prejudice to Defendant in His Summation, by Arguing Repeatedly That Defendant Was "Not a Novice" in the Drug Dealing Milieu.
II. THE COURT'S ERRONEOUS RULINGS REGARDING THE CONFIDENTIAL INFORMANT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE, AND THE PROSECUTOR'S COMMENTS IN SUMMATION COUPLED WITH THE JURY INSTRUCTION RELATING TO THE CONFIDENTIAL INFORMANT ...