On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1833.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Cuff and C.L. Miniman.
Defendant David Sheppard appeals from two judgments of conviction entered on June 23, 2008, for various offenses. The first judgment convicted him following a jury trial under Indictment No. 07-05-1833 of third-degree conspiracy to possess two controlled dangerous substances (CDS), cocaine and heroin, with intent to distribute, contrary to N.J.S.A. 2C:5-2 and 2C:35-5 (count one); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count three); third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1) (count four); and third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count five).*fn1
The second judgment convicted defendant pursuant to a plea agreement of third-degree possession of CDS within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. Defendant also appeals the aggregate sentence imposed under both judgments of seven years, of which forty-two months are to be served without parole. We now affirm his convictions, but remand for correction of the judgments of conviction.
The evidence at trial established that on February 1, 2007, at 12:40 p.m. Detective Noel Mendez of the Essex County Sheriff's Bureau of Narcotics was conducting undercover narcotics surveillance in the area of Avon Avenue and South Eleventh Street in Newark. He was in plain clothes in an unmarked vehicle. He was assisted by two back-up teams, one consisting of Detectives James Bradley and Brian Marczewski and the other of Detectives Jason Duncan and Mondasi. The teams were in two unmarked police vehicles that were located out of sight. Sergeant Nash, who was supervising the undercover operation, was in his own vehicle.
Mendez was parked on Avon, an east-west street, two car lengths to the west of its intersection with South Eleventh and was making observations through his rearview and side-view mirrors. He saw defendant and co-defendant, Eladio Echerte Vera, standing on the northwest corner. Throughout the entirety of his observations, Mendez was constantly in direct-channel radio contact with the two back-up teams and he gave descriptions of both defendants to the team members. Defendant was wearing a tan, hooded sweater and Vera was wearing a black jacket and cap. Mendez approximated both defendants' height and weight.
Mendez soon observed two men in their forties approach defendant and Vera, and he described those individuals over his radio, including their approximate heights. The taller man had a tan jacket with black pants and the shorter man had a black jacket with blue jeans. The shorter man spoke with defendant, and defendant walked across the street to a vacant lot to the east of an abandoned building at 368 Avon Avenue, which was across the street and on Mendez's left side.
Once in the vacant lot, defendant crouched down by a green trash bag, placed his hand inside the bag, and retrieved an object that looked like a clear, plastic bag. Defendant took an item from the object, put the object back into the bag, stood up, and walked back to the northwest corner. At that point, defendant handed the item to the shorter man in exchange for currency. The two men then left, walked west on Avon, and passed Mendez in his vehicle.
Seconds later, a third man in his twenties came from South Eleventh and walked up to Vera, engaging him in conversation. Mendez described this man to his back-up teams, giving his approximate height. The man was wearing a black, hooded sweatshirt and tan boots. Vera then walked across the street to the vacant lot, knelt down by the green trash bag, retrieved an object from the bag, took an item from the object, placed the object back in the bag, and placed the item in his pocket. Vera then crossed the street, returned to the northwest corner, and handed the item to the third man in exchange for currency. The man walked away, heading north on South Eleventh.
Mendez testified at trial that, based on his training and experience in the field of narcotics, he believed he had witnessed two narcotic transactions utilizing the same stash location. He then identified defendant as the first man who crossed Avon to go to the stash location. Because Vera was not present for the trial, Mendez identified him from a photograph.
Having concluded that he observed two narcotics transactions, Mendez notified the two back-up teams to move in to arrest defendant and Vera. Vera had again crossed to the south side of Avon and began to walk west on Avon toward South Twelfth Street whereas defendant remained on the northwest corner of the intersection of Avon and South Eleventh.
Bradley, with Marczewski driving, was located on South Twelfth parked north of Avon. When notified to move in, they proceeded south on South Twelfth towards Avon. Because Vera was walking toward South Twelfth, Bradley notified the other team he would pick up Vera. When they saw him on the corner, Marczewski pulled their vehicle over and they detained Vera. Nash arrived on the scene during this detention. Duncan and Mondasi were on South Tenth Street when they were instructed by Bradley to detain defendant. They found him standing on the corner and detained him.
After defendants were detained, Mendez directed Bradley to the stash location. Bradley walked east on the south side of Avon and walked through the lot to the east of 368 Avon Avenue.
He located the stash in a clear-plastic sandwich bag and took custody of the narcotics, notifying Marczewski and the other team of the recovery. He did not take the green plastic bag because it was full of garbage. The sandwich bag contained forty-nine vials with cocaine and four glassine envelopes of heroin stamped "Dream Girl" in red ink.
When the narcotics were recovered, defendants were placed under arrest. Marczewski conducted a pat-down search of Vera for weapons and drugs. He found a glassine envelope of heroin stamped "Dream Girl" and $81 in Vera's pocket. The money consisted of two ten-dollar bills, eleven five-dollar bills and six one-dollar bills. A search of defendant incident to his arrest produced $193 consisting of three twenty-dollar bills, six ten-dollar bills, ten five-dollar bills, and twenty-three one-dollar bills. No narcotics were found on defendant's person. Duncan identified defendant in court as the person he arrested.
Mendez and the back-up units at the direction of Nash then searched unsuccessfully for the buyers. A chemist at the State Office of Forensic Science tested the vials and glassine envelopes. She testified at trial that she determined the vials contained cocaine and the glassine envelopes contained heroin.
At the close of the State's case, defendant did not make a motion for a judgment of acquittal pursuant to Rule 3:18-1. When advised that defendant did not wish to testify, the judge conducted voir dire of defendant with respect to his right to testify or elect not to do so. The judge asked if defendant wanted the charge respecting his election not to testify read to the jury, and he read the specific language of the charge to defendant. Defendant replied that he wanted the charge read, that he had discussed it with his attorney, and that he wanted that specific charge given to the jury. His attorney then asked to have the language respecting defendant's right to remain silent deleted from the model charge because that language was prejudicial and the charge should be limited to defendant's right not to testify. The State requested that the model charge be given, and the judge stated he was "hesitant to deviate from the model jury charge in this regard." This did not cause defendant to elect to testify. Defendant then rested without presenting any evidence and without making a motion for "a judgment of acquittal after the evidence of all parties ha[d] been closed." R. 3:18-1.
The parties presented their closing arguments and the jury began its deliberations. The jury returned its verdict of guilty on the first five counts of Indictment No. 07-05-1833. Defendant did not file a motion for a judgment of acquittal pursuant to Rule 3:18-2 within ten days after the return of the verdict. He also did not file a motion for a new trial pursuant to Rule 3:20-1. He was scheduled for sentencing on June 24, 2008. Defendant did file a motion to vacate the ...