On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0598-I and 05-05-0413-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez and Yannotti.
Defendant Roland Brutton appeals from convictions following a jury trial on one indictment and the entry of a guilty plea on another. Following a jury trial of the charges stated in Indictment No. 04-08-0598-I, defendant was convicted of two counts of third degree distribution of a CDS (heroin), N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and one count of third degree conspiracy to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2(a)(1). Judge Frank W. Gasiorowski merged all three counts and imposed a five-year term. Following this conviction, defendant pleaded guilty pursuant to an agreement with the State to three charges listed in Indictment No. 05-05-413-I: third degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third degree possession of a CDS with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7; and third degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1). Judge Gasiorowski merged the three counts and imposed a four-year term with a nineteen-month parole disqualifier to run consecutively with the sentences imposed on the conviction on Indictment No. 04-08-0598-I. We affirm.
These are the salient facts. Somerset County Prosecutor's Detective Harem Smallwood testified regarding sales of heroin to an undercover police officer, which occurred on July 19, 2004, and July 20, 2004. Smallwood described the sales as a "buy walk away" operation, during which the police obtain information about someone selling drugs in an area and then proceed to buy drugs from the individual. In a "buy walk away" operation, the seller is not arrested at the time of the sale.
Smallwood served as a backup for Somerset County Sheriff's Detective Christopher Ouellette, the undercover purchaser. Smallwood listened to an audio transmitter attached to the undercover officer in order to monitor the transaction. According to Smallwood, although on some occasions the audio transmissions are recorded, on these particular occasions, they were not.
On July 19, 2004, Smallwood took a position with a video camera to record the undercover purchase. At trial, the video tape was authenticated and admitted into evidence without objection. The video was played in court while Smallwood described what was happening onscreen. Smallwood then identified defendant in a group of individuals. However, the video camera did not capture the July 19, 2004 transaction.
On July 20, 2004, Ouellette was scheduled to make another buy and to arrest the seller. On that day, Smallwood was once again a backup unit for Ouellette. Smallwood also recorded events that day. Again at trial, the court admitted the video into evidence with no objection. According to Smallwood, he noticed someone come up to Ouellette's window and make an exchange. The individual rode away on a bicycle after the exchange occurred. The prosecutor played the video, while Smallwood described what was happening on the tape. Smallwood testified that the man fleeing was the same person who sold the heroin the day before. Smallwood positively identified defendant as the seller. Defendant was wearing the same clothing as the day before.
Ouellette testified that he received information about illegal drug transactions from a confidential informant. The confidential informant introduced Ouellette to Joel Vazquez. Ouellette spoke to Vazquez over the phone and arranged a meeting to purchase narcotics. The meeting was to occur on July 19, 2004, at four o'clock in a specified parking lot in North Plainfield. Ouellette went to the meeting equipped with a monitoring device. He was approached by three individuals. The individuals spoke with the confidential informant and then proceeded to enter Ouellette's vehicle. A price for the drugs was set and Ouellette purchased the heroin. Ouellette spoke with one of the individuals, stating that he would contact Vazquez the following day to purchase more drugs. Ouellette identified defendant as one of the three individuals. As Smallwood had done previously, Ouellette described what happened in the video, while the video was played for the jury.
Ouellette contacted Vazquez the next day to arrange for the purchase of more heroin at the same location. Ouellette went to the location. An individual arrived on a bicycle. The individual approached the car and tossed in a packet of heroin. Ouellette handed him twenty dollars. Ouellette identified the person as defendant. During Ouellette's cross-examination, defense attorney played the video and pointed to a person in the video. The attorney stated, "[t]his is [defendant], right."
According to Ouellette, the heroin purchased at the scene was field tested. It was positive. The heroin bag was admitted into evidence. The parties stipulated that the specimen was tested and was in fact heroin.
Detective Edward Francis Conway III, a detective for the Somerset County Prosecutor's Office, testified that he assisted in the arrest of defendant on July 20, 2004. Conway transported defendant from the scene of the crime to the Prosecutor's Office, where he was placed in a holding cell. Defendant was given Miranda*fn1 warnings. After signing the Miranda form and waiving his rights, defendant told Conway that his friend asked him to come along on the sale of heroin on July 19, 2004. His friend also told him to deliver the bag of heroin on July 20, 2004, for which defendant was promised ten dollars in return. Defendant gave a taped statement describing the circumstances leading up to his arrest and his participation in the drug transaction. The transcript and the tape were admitted into evidence without objection.
In summation, defendant's attorney stated: "We're conceding the drug distribution . . . [he] conspired with two others in these drug distributions and he took direct part in one and was an accomplice in the other." Defendant's attorney focused his summation on count four of the indictment, second degree unlawful possession of a weapon, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:39-4.1c. Defendant was acquitted of this charge, but found guilty on all others.
While defendant was released on bail, he was arrested for another drug transaction, which resulted in Indictment 05-05-00413-I. At defendant's plea hearing, he gave the following factual basis:
[DEFENSE ATTORNEY]: On the 25th day of April, 2005, in the Borough of North Plainfield were you at an apartment that was rented by Mr. Koemple?
Q: And in that apartment did you have a quantity of cocaine?
Q: Where did you have the cocaine hidden in ...