On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-08-0542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Defendant made or arranged seven hand-to-hand drug sales to an undercover officer and now appeals from his sentence and convictions for conspiracy and distribution of cocaine. We affirm.
On March 30, 2006, Detective Katherine Curtin of the Cape May County Prosecutor's Office*fn1 began an undercover investigation regarding Steven Hawk, a/k/a defendant Rasheed Amin. On that date, she obtained a photograph of defendant from the Department of Corrections (DOC) that she used to identify defendant and made the first of four hand-to-hand purchases of cocaine directly from him.
At the time of the first purchase, Curtin paid defendant $50 for .304 grams of cocaine. Defendant gave her his telephone number to use to contact him for additional purchases.
Using that telephone number, Curtin arranged a second purchase of cocaine from defendant for $100 on April 7, 2006. They met in a motel parking lot. A second motor vehicle pulled up; defendant went to that motor vehicle and returned to Curtin's vehicle, where he provided her with .732 grams of cocaine.
The third purchase occurred on April 19, 2006, at a shopping center parking lot. Curtin testified that defendant advised her that they had to wait for "his girl, [that] she was going to be bringing the stuff over, the stuff being the drugs, the cocaine." A motor vehicle arrived and co-defendant Keisha Jones exited and handed defendant a clear plastic bag containing 1.761 grams of cocaine. Curtin paid defendant $100 for the cocaine.
Curtin contacted defendant to arrange the fourth hand-to-hand transaction on April 26, 2006. Curtin testified that she requested $250 worth, or a quarter-ounce of cocaine, and gave him the money. Defendant told her that he was going to take her "to his boys to get a heavier bag" and drove them to a drug store in North Cape May. A red Ford Taurus with two unidentified males pulled up. Defendant walked to the passenger side of the vehicle, stayed there briefly, and returned to Curtin with the cocaine.
When Curtin contacted defendant to arrange for a fifth purchase, he replied that he was in North Carolina but that he could set it up and "Angel" would be able to supply her. Defendant later called her, advised that he had spoken to Angel, and told her where to meet him.*fn2 On May 5, 2006, Angel arrived at the designated meeting place, left his vehicle, approached Curtin's vehicle and entered. She asked if he was Angel; he answered affirmatively, and they discussed the drug purchase. Curtin gave him $100 and he gave her 1.97 grams of cocaine.
Curtin called defendant on May 11, 2006 to arrange a sixth purchase. In a tape-recorded conversation, she asked him to contact Angel because he was not returning her calls. Defendant agreed to do so. After contacting Angel at a telephone number given to her by defendant, they met at a K-mart parking lot. A red Taurus pulled in to the parking lot with two males, one of whom was Angel. Curtin walked to the passenger side of his vehicle, where she purchased an additional quantity of cocaine for $100.
When Curtin was unsuccessful in attempting to contact Angel for another purchase, she again called defendant in North Carolina on May 19, 2006. In this tape-recorded conversation, Curtin negotiated for the purchase of an eight-ball, or one-eighth ounce of cocaine. Angel later called her and told her to call when she was ready to meet with him. They arranged to meet at a shopping mall parking lot, where Curtin purchased 3.193 grams of cocaine for $150.
Defendant was indicted*fn3 on seven counts of third-degree distribution of less than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, two, three, five, six, eight, ten); four counts of third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 (counts four, seven, nine, eleven); one count of second-degree distribution of cocaine in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count twelve); and with being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count thirteen) (the kingpin count).
Defendant moved for the suppression of his tape-recorded conversations with Curtin on the grounds that Curtin was not an "investigator or law enforcement officer" as defined in N.J.S.A. 2A:156A-2(f); that as a result, the State was required and failed to obtain the prior written approval of the Attorney General, the county prosecutor, or their designee, for recording the conversations pursuant to N.J.S.A. 2A:156A-4(c). Defendant also moved for the dismissal of the kingpin count and for the suppression of statements made by co-defendant co-conspirators pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). The trial court denied the motions.
There was also a pretrial discussion concerning the photograph Curtin obtained from the DOC and used to identify defendant. The prosecutor acknowledged that certain information on the photograph was prejudicial to defendant and should be redacted. Defense counsel requested further that the photograph should be excluded from evidence. The prosecutor maintained that the photograph was necessary to the State's proof of identification. Defense counsel argued that it was unnecessary because "[w]e have all these other transactions. She's going to identify him in all other transactions. It's not an ID case." The court ruled that the State would be permitted to use a redacted photograph, provided there was no reference or description of the source of the photograph.
Defendant was acquitted on the kingpin count and convicted on counts one through twelve. At sentencing, the court merged counts one through eleven into count twelve, a second-degree distribution charge. The State had filed a motion for the imposition of an enhanced sentence. It was undisputed that defendant met the criteria for a mandatory enhanced term for this, his second distribution conviction. See N.J.S.A. 2C:43-6(f). However, defense counsel argued that, although the State had served counsel within fourteen days of conviction, it was required to serve defendant personally within the time period established by Rule 3:21-4(e). The court rejected this argument and sentenced defendant to twenty years imprisonment, with a ten-year period of parole ineligibility and appropriate fines and penalties.
In this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED BY PERMITTING DETECTIVE CURTIN TO TESTIFY THAT SHE OBTAINED A PHOTOGRAPH OF MR. AMIN FROM THE DEPARTMENT OF CORRECTIONS AND OVERRULING ...