July 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT MCNAIR AKA ALTERICK JENKINS AKA ROBERT RAY JENKINS AKA JENKINS M. MCNAIR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-06-1882 and 06-03-0713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Fuentes and Simonelli.
Defendant Robert McNair was tried before a jury and convicted of third degree conspiracy to violate narcotics laws, N.J.S.A. 2C:5-2, third degree possession of heroin, N.J.S.A. 2C:35-10a(1), third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, third degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7. After this trial was completed, defendant entered into a separate negotiated agreement with the State in which he agreed to plead guilty to counts three and five of Essex County Indictment 06-03-0713, charging him with third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35:5a(1) and N.J.S.A. 2C:35-5b(3).*fn1
The court sentenced defendant to an aggregate extended term of seven years, with three years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f); this sentence included a concurrent five-year term, with thirty months of parole ineligibility, for the two crimes charged under Indictment 06-03-0713.
We gather the following facts from the evidence presented at trial. On March 22, 2006, Essex County Sheriff's Bureau of Narcotics Detective Mahmoud Tamimi was conducting surveillance on Stuyvesant and Chancellor Avenues in Irvington when he saw a man, subsequently identified as Anthony Tambascia, approach two other men standing on the street. Detective Tamimi saw Tambsacia give what appeared to him to be paper currency to one of the men; Tambascia then returned to his original location. At the direction of the man who received the cash, the other man walked to where Tambascia was standing and handed Tambascia several items.
Based on his training and experience, Detective Tamimi concluded that he had witnessed a narcotics transaction, and therefore, called for backup. Additional officers responded to his call and all three suspects were arrested. Sergeant Vladimir Tavares of the Irvington Police Department was one of the responding officers. He approached Tambascia, who was standing next to a white Mustang that had its passenger side door open. As Sergeant Tavares approached, Tambascia threw several items into the car and closed the door. Looking through the car window, Sergeant Tavares saw two "decks" of heroin on the seat.
James Turner was identified as being one of the two men who were involved in the apparent narcotics transaction with Tambascia. Turner, who was standing by the rear of the white Mustang, was arrested by State Police Officer Eric Hahn. Officer Hahn searched Turner and discovered three bundles of heroin on his person. Both the heroin bundles in Turner's possession and the heroin discovered on the seat of the car were labeled with the words "Born Dead" in red ink.
Irvington Police Officer Elijah James also responded to Detective Tamimi's call. Officer James arrested defendant, who Detective Tamimi identified as the third man he observed participating in the illicit narcotics transaction. Officer James seized $168.00 in cash from defendant's person.
Defendant now appeals raising the following arguments.
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A MISTRIAL AND MOTION FOR A NEW TRIAL BASED UPON THE GOVERNMENT'S FAILURE TO TIMELY DISCLOSE REQUESTED DISCOVERY MATERIALS (Raised Below)
A. The Prosecution's Discovery Obligations
B. The Prosecution's Violation of the Discovery Rules
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL WHERE THE PROSECUTION FAILED TO INFORM THE DEFENDANT THAT CO-DEFENDANT TAMBASCIA WAS A CONFIDENTIAL INFORMANT AND WHERE THE STATE REFUSED TO COMPLY WITH A DEFENSE REQUEST TO PRODUCE TAMBASCIA'S CONFIDENTIAL INFORMANT FILE (Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE PROSECUTION ELICITED TESTIMONY FROM OFFICER JAMES THAT HE HAD RECOGNIZED THE DEFENDANT FROM "PREVIOUS ENCOUNTERS" AND COMMITTED PLAIN ERROR BY ISSUING AN INEFFECTIVE CURATIVE INSTRUCTION (Raised in Part Below)
THE PROSECUTOR'S IMPROPER VOUCHING FOR THE EVIDENCE DURING HER OPENING STATEMENT DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL ON THE GROUNDS OF PROSECUTORIAL MISCONDUCT (Not Raised Below)
THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
We are satisfied that defendant's arguments are clearly without merit and do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless make the following brief comments concerning Points I and IV. Defendant's arguments concerning the trial court's decision to deny his motion for a mistrial predicated on alleged discovery violations by the prosecutor are misplaced. These are the salient facts on this issue.
During the course of the trial, it became apparent that the prosecutor failed to provide defendant with a towing report that he had requested for the white Mustang towed from the scene of defendant's arrest. The trial judge held a N.J.R.E. 104 hearing to permit defense counsel to question Sergeant Tavares and Officer James about this report. At the conclusion of the hearing, the trial judge denied defendant's motion for a mistrial.
We review a trial court's decision to deny a motion for a mistrial under an abuse of discretion standard. A decision to grant or deny a mistrial is "entrusted to the sound discretion of the trial court, . . . which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000) (internal citation omitted). Here, we discern no legal basis to interfere with the trial judge's decision to deny defendant's motion.
Defendant argues that he was prejudiced by the prosecution's failure to provide the towing report because the report contained the names of several police officers present at his arrest of whom he was unaware. Defendant has not proffered what exculpatory evidence he would have elicited from these additional police officers. As the trial judge observed, "[a] generalized statement that [defendant's counsel] may have been able to investigate these individuals and talk to them and might be able to develop information that could be used for impeachment purposes is certainly not sufficient to warrant a mistrial in this circumstance."
Finally, defendant's argument alleging that the prosecutor improperly vouched for the credibility of certain witnesses was not raised before the trial court, and therefore, must be reviewed on appeal under a plain error analysis. R. 2:10-2. This requires us to disregard any error that is not "clearly capable of producing an unjust result." Ibid.
Defendant objects to the following remarks made by the prosecutor as part of her opening statement to the jury:
We're here today because on March 22nd, 2006 in the area of . . . Stuyvesant Avenue in Irvington these two defendants*fn2 conspired to violate the drug laws of this -- of this State. These defendants were found to be in possession of heroin. They were found to have -- to possess that heroin with the intent to distribute it. They did, in fact, distribute it. And they did all of this within a thousand feet of a school.
Ladies and gentlemen, these defendants sell drugs for money and we're here today because they got caught. [(Emphasis added).]
Although the underscored remarks could be viewed as implying that if defendant and his cohort had not been arrested, they would still be selling illicit drugs, there is nothing improper in the prosecutor's statement when it is considered within the context of the whole trial. State v. Morton, 155 N.J. 383, 419-20, (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
The balance of defendant's arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(2).