On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0300.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J.N. Harris.
Following a jury trial, defendant was acquitted of third- degree distribution of a controlled dangerous substance (heroin) in a school zone (count two), but he was found guilty of third- degree distribution of heroin in violation of N.J.S.A. 2C:35- 5(a)(1) and (b)(3) (count one), and second-degree distribution of heroin within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-7.1 (count three). At sentencing on January 25, 2008, the court noted that defendant had twelve indictable convictions, which resulted in two probationary terms, one county jail sentence, and nine New Jersey State Prison terms. After merging count one into count three, the court sentenced defendant to a ten-year term with five years of parole ineligibility to be served concurrently with the sentence he was already serving. The court also imposed appropriate fines, penalties, and assessments. Defendant appeals and we affirm.
The State's proofs were relatively straightforward. In 2006, Detective Kevin O'Brien (O'Brien) of the Plainfield Police Department and Detective Kevin Connell (Connell) of the Newark Police Department, were working together in an undercover operation to purchase controlled dangerous substances as "part of a State Police Task Force investigation." O'Brien testified that Connell worked as an undercover officer, "[m]aking undercover buys." O'Brien's role, as a backup officer, was to monitor Connell's activities "[t]o keep him safe."
About a week after Connell met defendant, Connell telephoned him on July 8, 2006, and "expressed an interest in wanting to purchase narcotics, specifically heroin." Defendant gave Connell a time and location where they could meet in the City of Plainfield. When Connell drove to the designated location, he saw defendant standing on the sidewalk, so Connell pulled over and defendant got into the car.
At that point, defendant told Connell to "drive around the block." As Connell began driving, he handed defendant fifty dollars and told him he wanted "[f]ive." Defendant then handed Connell five glassine folds of heroin.*fn1
O'Brien testified he observed defendant "walk to and enter" Connell's undercover vehicle and also saw defendant exit the vehicle. According to O'Brien, as defendant walked away, he was "looking over his shoulder and scanning the area as if he was nervous, looking for police presence."
Thereafter, O'Brien went to police headquarters, retrieved a photograph of defendant, and met with Connell at a predetermined location. Upon viewing the photograph, Connell identified the person in it as the person who had just sold him heroin. O'Brien and Connell both initialed the back of the photograph, and both identified defendant in court when they testified. O'Brien prepared a criminal complaint against defendant approximately a week after the purchase, but the complaint was not signed until January 2, 2007. O'Brien explained that defendant's arrest was deliberately delayed because it would have compromised the safety of the undercover officer and the investigation if "people on the street [knew] undercover officers were out purchasing narcotics and people were getting arrested."
O'Brien and Connell were the only witnesses to testify at trial. Defendant did not testify or call any witnesses. In his summation, defendant's attorney stressed that the "ultimate issue" was "the identity of the person who did sell heroin to Detective Connell." On the other hand, the prosecutor told the jury "there is good evidence in this case, evidence beyond a reasonable doubt based on the testimony of these cops that the defendant is guilty."
There were no objections to the jury charge, which included the following instructions regarding defendant's photograph:
There is in evidence a photograph used to identify the defendant in this case. With reference to the photograph submitted in evidence, you will notice that it appears to have been taken by a law enforcement agency or some other government agency. You are not to consider the fact that the agency obtained a photograph of the defendant as prejudicing him in any way. The photograph is not evidence that the defendant has ever been arrested or convicted of any crime.
Such [a] photograph comes into the hands of law enforcement from a variety of sources including, but not limited to[,] driver's license applications, passports, ABC identification cards, various forms of government employment, private employment requiring state regulation including, but not limited to, casino license applications, security guard applications, etcetera, or from a variety of other sources totally unconnected with criminal activity.
Mr. Jenkins as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of a person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime.
The jury commenced its deliberations at 11:40 a.m. on November 29, 2007, and it reached a verdict at 1:33 p.m. the same day. On appeal, defendant raises the following issues:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION ...