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State v. McNair

July 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

POINT I.

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 ...


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