June 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CYNTHIA ANN THOMAS A/K/A VANESSA MADISON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-0622.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Rodríguez and Reisner.
Defendant Cynthia Ann Thomas was convicted by a jury of third degree cocaine possession, N.J.S.A. 2C:35-10a(1); fourth degree hindering her own prosecution, N.J.S.A. 2C:29-3b(4); and the disorderly persons offense of using drug paraphernalia, N.J.S.A. 2C:36-2. In a judgment of conviction filed October 29, 2008, she received an aggregate sentence of three years probation and a six-month suspension of her driving privileges. Defendant appeals from the conviction and the sentence. We affirm.
At the trial Officer Deabeau testified that while he was working undercover he observed two women engaging in what he believed was a drug purchase on the street. He alerted his backup units and gave them a description of the two women, including the clothing they were wearing and the direction in which they were walking. Shortly after the women were arrested, Deabeau saw them at headquarters and confirmed that the two arrestees were the women he had seen engaged in the transaction. He testified that the police also arrested three men whom he had observed partaking in the drug transaction.
Officer Clancy, who was part of the backup unit, testified that he arrested the two women, searched them briefly for weapons, and transported them to police headquarters. Defendant gave him what later proved to be a false name, "Vanessa Madison."*fn1 According to Clancy, at headquarters, the police performed a second search of the women while they were in a holding cell. They performed the search because, after watching the women through the one-way glass in the cell, the police believed that the women were removing drugs secreted on their persons. The search of defendant revealed that she was holding in her hands a plastic Ziploc bag containing crack cocaine and "a glass pipe" of a type "usually used to smoke crack cocaine."
Defendant and her female co-defendant both testified that they only approached the men on the street to ask them for a light for their cigarettes. They denied buying or possessing any drugs. One of the men, who had also been arrested for selling the drugs, testified that he had never sold or given the women any drugs.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON IDENTIFICATION WHEN THE STATE'S MAIN WITNESS FAILED TO IDENTITY THE DEFENDANTS IN ITS CASE-IN-CHIEF DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT II: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF TRIAL COURT DISCRETION. (Not Raised Below)
Having reviewed the record we conclude that both of these contentions are without merit and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2). Turning first to the identification charge, we note that because defendant did not object to the jury charge at trial, we are limited on this appeal to considering whether failure to give an identification charge was plain error.
R. 2:10-2. However, we find no error in the jury charge, plain or otherwise.
Defendant contends that an identification charge was required because there was some question as to the police officer's identification of her at the scene of her arrest. The flaw in defendant's argument is that after she was arrested and placed in a police holding cell, she was caught in the holding cell in possession of a bag of cocaine and a crack pipe. Her conviction was based on that possession, and not on anything that occurred at the arrest scene. Therefore, even if there was an issue of identification at the scene, failure to give an identification charge would have been harmless error.
We find no abuse of discretion or other error in the three year probationary sentence imposed. State v. Roth, 95 N.J. 334, 363-65 (1984).