On appeal from the Superior Court of New Jersey, Essex County, Indictment Nos. 05-12-2938 and 06-04-1147.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and LeWinn.
Essex County Indictment No. 2005-12-2938 charged defendant, Kobie Purkett, in counts five through seven, with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1),(b)(3); and third-degree possession of cocaine within one thousand feet of school property, N.J.S.A. 2C:35-7. Co-defendants, Unique Bennett and Chianti Walsh, were charged in counts one through four of the same indictment with third-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:5-2; third-degree possession of heroin; third-degree possession of heroin with intent to distribute; and third-degree possession of heroin within 1000 feet of school property. The date of all offenses charged was August 9, 2005.
Essex Count Indictment No. 2006-4-1147 charged defendant, alone, with third-degree possession of heroin; third-degree possession of heroin with intent to distribute; third-degree possession of heroin within one thousand feet of school property; and second-degree possession of heroin within five hundred feet of public property. All offenses charged occurred on October 20, 2005.
Bennett and Walsh entered into negotiated plea agreements, and defendant proceeded to trial alone on the first indictment. A jury found him guilty of all three counts. Defendant thereafter entered into a negotiated plea agreement with respect to the second indictment and pending accusations. Defendant pled guilty to third-degree possession of heroin within 1000 feet of school property, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5).
At sentencing on January 16, 2007, the judge imposed a five-year term of imprisonment with a three-year parole ineligibility period on the first indictment, and a consecutive aggregate term of three years with a nine-month parole ineligibility period on the two other charges. Defendant now appeals from the judgment of conviction entered upon the charges tried to a jury.
The facts pertinent to defendant's appeal may be summarized as follows.
On August 9, 2005, Newark Police Detective Philip Turzani and his partner, Police Detective Carlos Rivera, were patrolling in the area of South 18th Street and 15th Avenue in Newark at approximately 1:45 p.m.; the officers were in an undercover vehicle and were wearing plain clothes. Another police unit, consisting of Officers Macchia, Cabrera and Sergeant Gohner, was in the area.
Turzani testified that while driving on South 18th Street, he observed "three males sitting on the front steps to 516 South 18th Street motioning and beckoning for vehicles and pedestrians to approach them." "[F]rom the location and [the] area,... [he] believed that they [were] doing narcotic transactions[,]" leading him to park the vehicle at the curb and set up surveillance, with the use of binoculars, at a distance of approximately 100 to 200 feet.
Turzani identified the three individuals as defendant and co-defendants Bennett and Walsh.
Turzani testified that he observed Bennett "stand up and walk several feet" away from the building and "motion over an unknown black male" with whom Bennett engaged in a brief conversation. Bennett then "put his hand up in the air... right hand index finger indicating one." Turzani stated that Bennett made that gesture to Walsh who then "stood up, went inside the hallway of 516 South 18th Street and up into the door molding he took out an object,... took an item from the object, placed the remainder back up into the door molding." Walsh "then motioned over the black male[,]... and "handed him the item"; the black male then handed Walsh "an unknown amount of U.S. paper currency[,]" and "took the item and placed it up into the air as if inspecting the contents...." At that time, Turzani stated, he "was able to... notice that it was a glassine envelope containing suspected C.D.S. heroin."
Although Turzani believed he had just witnessed a "narcotics transaction and that both [Bennett and Walsh] were conspiring together to sell... heroin[,]" he did not "move in at that point[,]" because he "then observed [defendant] motion over another unknown black male to come over to him, at which time the black male walked over [to defendant]. They engaged in a brief conversation." Turzani then observed defendant "walk [s]outhbound on South 18th Street towards an abandoned house.... [Defendant] then bent down by the [n]orth side of the house, picked up a... black colored plastic bag, at which time he took an item from the bag, placed the bag back down on the ground," and brought it to the black male. Turzani then observed defendant "engage in a hand-to-hand transaction[,]" in which he "handed over the items that he... took from the bag to the black male and the black male handed over to him U.S. paper currency." Based on his observations, Turzani believed that he had "witnessed another narcotics transaction." Turzani thereupon called the backup unit, and the three individuals were arrested.
Turzani was shown a map of the area surrounding South 18th Street and 15th Avenue, and identified a school within 1000 feet of the locations of the drug transactions he had witnessed.
Detective Rivera's testimony was consistent with Turzani's. He added that after the three individuals were arrested, Turzani retrieved the black bag in the parking lot, from which defendant had removed the narcotics he sold. Inside the bag were "39 vials with black tops containing cocaine."
Defendant testified that he was in the area of South 18th Street and 16th Avenue on the date in question to visit his elderly aunt. He traveled by public transportation and as he left the bus, a "neighbor... asked [him to]... go to the store for her." He approached a liquor store on 18th Street and was suddenly accosted by three people from behind, who "grab[bed him] and put handcuffs on [him]." He was brought to a building and was seated "in front of the building with two other individuals.... Then after that, they just took [him] directly down to the station. Never knew nothing else...."
During direct examination, counsel questioned defendant about his employment history. Defendant testified that "prior to August 9th," he was not employed; he "was doing volunteer work for... a company called Acorn." He was asked when he last had "full time employment" prior to August 2005, and replied:
Let me see, 2000, 2001, 2000 [sic]. It was off and on that I had other jobs. But they would be under the table jobs. It wouldn't be a regular, 40 hour a week paying job....
The jury began deliberations on the morning of the third day of trial. During deliberations, juror #3 asked to speak to the judge. In the presence of counsel, the trial judge brought juror #3 into the courtroom and asked what she wanted to say. The juror responded:
A... juror said that her... decision is based on feelings. That... when asked, she said she has worked with drug addicts. When asked about that,... would that influence her feelings,... she said no. And then another statement was made. So, I'm not sure that we're dealing with the evidence or if we're dealing with feelings. And... that's just my concern
Out of the presence of juror #3, the judge asked counsel for their thoughts on how to proceed. The prosecutor requested the judge to "reinstruct the jury that their decision is to be based on solely the evidence in this case, what was presented to them in this courtroom and not to be influenced by any outside factors." Defense counsel essentially concurred with this language. The judge asked if counsel thought that "any other inquiry of any other juror [was] necessary...." Defense counsel stated that he was "not requesting that[,]" and the prosecutor concurred.
A sheriff's officer who had escorted juror #3 out of the courtroom after her statement then advised the judge that the juror had said to him that "she's in fear... for her life." The judge brought juror #3 back into the courtroom and questioned her further; she responded, "I don't know if I said life. I said that I am concerned. I feel uncomfortable being in this situation." The following colloquy then ensued between the judge and juror #3.
THE COURT: And what... is the source of your discomfort as precisely and as accurately and as fully, without leaving any details out, ma'am? Because that's different from what... you said before.
JUROR: I'm making a statement about jury deliberations in a criminal case. And it could affect the outcome and that makes me feel uncomfortable. However, I feel compelled to state my observations to the [c]court.
THE COURT: Well, did someone ...