On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-03-0119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant Tashando Luster was found guilty of three counts of second-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(2), as well as one count of first-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(1). After appropriate mergers, the trial judge sentenced defendant to a mandatory extended term of imprisonment, N.J.S.A. 2C:43-7c and N.J.S.A. 2C:43-6f, of twenty-years with an eight-year period of parole ineligibility together with mandated fines and penalties. Defendant appeals, and we affirm.
The thrust of defendant's defense was entrapment. On appeal, defendant asserts that the admission of a prior drug conviction to establish predisposition constituted reversible error. With a focus on that issue, we review the testimony adduced at trial.
During the fall of 2005, an informant, Michael Featherstone, related to detectives assigned to the Somerset County Drug Task Force that he met an individual while in custody at the Somerset County Jail who could procure significant amounts of cocaine. A meeting was arranged between the individual, later identified as defendant, and undercover Hunterdon County Detective Mark Wilson of the Narcotics Task Force. Detective Wilson presented himself as a laborer and longstanding friend of Featherstone who was interested in purchasing an ounce of cocaine.
The meeting occurred on October 9, 2005 at approximately 11:30 a.m. in a parking lot. After speaking with Featherstone, Detective Wilson arrived at the designated location with identifiable currency that had been supplied and photocopied by the Task Force. The detective was also armed with a handgun and equipped with a concealed wireless microphone and transmitter to record and broadcast any conversations. Defendant was driven to the scene by Featherstone and arrived several minutes later.
After being waved over to the vehicle by Featherstone, Detective Wilson approached the car and entered the driver's side rear door. During a brief conversation with the detective, defendant stated that he was a good judge of character and could see that the officer was "cool." Defendant, who was sitting in the front passenger seat, then told Detective Wilson that the cocaine was located in the center console. After discussing an acceptable price, defendant opened the center console lid and removed a white paper towel. The towel contained what appeared to be both rock and powder cocaine. At that point, defendant exclaimed that the "shit is real good." Detective Wilson briefly inspected the cocaine and placed it in his pocket. Defendant then stated that he could procure 18 ounces of cocaine the following day and also asked the detective if he was interested in purchasing heroin, ecstasy or marijuana.
Detective Wilson gave defendant $900, which defendant refused to count in the detective's presence, claiming that to do so would be impolite. He then placed the cash in his right pants pocket. Before parting company, defendant and Detective Wilson exchanged cell phone numbers. Defendant again stated that he could be called at any time if the detective wished to purchase large amounts of cocaine. Defendant and Detective Wilson shook hands, and defendant exited the vehicle.
As Featherstone and Detective Wilson drove away, defendant called the detective by cell phone and complained that he had been paid less than the agreed-upon amount of $1,000. As a result, Featherstone and Detective Wilson drove back to the parking lot and located defendant near a pizzeria. Detective Wilson exited the vehicle, hugged the defendant good-naturedly and handed him the outstanding $100. Defendant assured the detective that "everything is cool" before the detective reentered Featherstone's car. They drove to another location where the two met with other back-up officers assigned to the Task Force.
At that time, Detective Wilson field-tested the suspected cocaine, packaged it and turned the drugs over to his superiors. The State Police subsequently analyzed the drugs, which weighed approximately 27.60 grams. Also following the first transaction, Detective Wilson received a photograph of defendant from Somerset County authorities, thereby confirming the identity of the person from whom he had purchased cocaine.
On October 14, 2007, Detective Wilson telephoned the defendant to arrange another purchase of drugs. Defendant inquired as to the quantity, and defendant agreed to sell the detective three ounces of cocaine for $2,375 at the location of the previous transaction.*fn1
Detective Wilson drove to the Kings Plaza parking lot in an undercover vehicle and observed defendant standing alone. Defendant approached the detective's car, entered it, engaged in some friendly banter and then instructed him to park adjacent to a blue vehicle parked in the center of the lot. Defendant exited the detective's car and walked toward the driver's side of the blue car. A young African-American male sat in the driver's seat of the blue car. Defendant reached inside the open-driver's side window with his back turned to the detective. He reentered the detective's car with three bags containing white powder and ...