On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0690.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Union County Indictment No. 07-08-0690 charged defendant and co-defendants Randy Blakeney and Angela Berry, also known as Cindy Martin, as follows: count one charged all three defendants with third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); count two charged defendant and Blakeney with third-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); count three charged defendant and Blakeney with third-degree possession of cocaine within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7; count four charged defendant alone with third-degree distribution of cocaine, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and count five charged defendant alone with third-degree distribution of cocaine within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7.
Defendant proceeded to trial alone. The jury found him guilty of counts one through three and not guilty on counts four and five. On September 19, 2008, defendant was sentenced to an aggregate term of five years with a three-year period of parole ineligibility. He now appeals his convictions, raising two claims of trial error. We affirm.
The trial evidence pertinent to our decision may be summarized as follows. On March 30, 2007, Roselle Police Detective Matthew Jakubowski and his partner, Detective Stacy Williams, were conducting undercover narcotics surveillance on St. George Avenue. Jakubowski testified that he recognized defendant and Blakeney, who is defendant's cousin. When the prosecutor asked Jakubowski how he had come to know defendant and Blakeney, the judge interrupted and called a sidebar conference, at which he instructed the prosecutor to elicit "no comment suggesting that [Jakubowski] knows [defendant] as a result of any investigations that he's been involved . . . [in]." Following the sidebar, the prosecutor asked the detective, "is it fair to say that you have come to know [defendant] just very generally as a member of the community?" Jakubowski answered, "[y]es." The judge thereupon instructed the jury that "police officers come to know residents in the community in a variety of ways, through interaction at schools, sporting events, picnics, carnivals, local charities, civic events such as car rallies, plays, parades."
Jakubowski observed defendant, Blakeney and Berry have a conversation together; then defendant and Berry walked into a supermarket where, according to the officer, "[i]t appeared that they conducted a hand-to-hand transaction" with each other. Through his "training and experience," Jakubowski "believe[d] that a narcotics transaction took place."
Defendant and Berry then exited the supermarket and went separate ways. Jakubowski and Williams confronted Berry inside a liquor store; she "became aggravated . . . and dropped an item onto the service counter." Jakubowski described the item Berry dropped as a "small plastic like Saran-like knot with suspected cocaine." Jakubowski and Williams placed Berry under arrest and arranged for her transfer to police headquarters.
Jakubowski then saw defendant standing in front of a nearby residence at 1205 Irvington Street; he called Officer Brian Burns to come to that location and the three officers then approached defendant and Blakeney who was also in front of that building. When they saw the police, defendant and Blakeney "tried to go into the house[,]" but the officers stopped them and placed them under arrest. Burns searched defendant and "removed a plastic knot of suspected cocaine from his right front pants pocket[,]" along with "$62 in cash." Williams searched Blakeney and found "two small Ziploc bags of cocaine."
At this point, defense counsel requested a sidebar. The judge excused the jury and counsel stated that he was "concerned that there's continuing testimony by [sic] Mr. Blakney [sic] and . . . [t]he question to include him in all of the discussions even to date, I think, certainly is more prejudicial than probative."
The judge asked the prosecutor what his purpose was in eliciting testimony about Blakeney; the prosecutor stated that he wanted "just to give an overall picture to the jury of the investigation that occurred[,]" and that he did not intend to have the jury believe that defendant jointly possessed the drugs found on Blakeney.
The jury returned to the courtroom, and the judge instructed them as follows:
We're going to continue the questioning, but I should tell you that with respect to Mr. Blakney [sic], the other person who was there under the surveillance, whatever he may have had on [sic] his possession, [defendant] has not been charged with any of that, so that's not really relevant to your consideration as to [defendant's] involvement with whatever the State has put ...