On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-02-0258 and 07-02-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Alvarez.
Defendant Alice Roberts appeals her conviction for third-degree distribution of cocaine, N.J.S.A. 2C:35-5, and third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:5-2. She argues that the trial court improperly admitted a tainted in-court identification and deprived her of her right to effective assistance of counsel by preventing her attorney from making certain comments in summation. She also argues that the prosecutor's inflammatory arguments in summation amounted to prosecutorial misconduct. We affirm.
On October 6, 2006, the Middlesex County Prosecutor's Office Narcotics Task Force (Task Force) conducted an undercover "controlled buy" operation in which Officer Suzanne Kowalski was to purchase $100 of cocaine from a seller at the City Tavern in Woodbridge Township. Officer Kowalski had been assigned as an investigator with the Task Force since June of that year. Prior to the October 6 operation, Officer Kowalski had participated in roughly forty cases, twenty of them undercover and twenty as an undercover backup officer.
Just before the operation, Officer Kowalski and other members of the Task Force - which included police officers from Woodbridge, Rahway, New Brunswick, and Edison - met in a nearby motel parking lot to prepare. It was decided that Task Force Lieutenant Irma Alvarez, the supervisor of the October 6 operation, and Officer Joshua Alexander, a Task Force investigator, would serve as backup officers inside the bar. Three other backup officers would remain outside in a car parked in the City Tavern's lot.
The backup officers in the car - Detective James Crowell and Sergeant Robert Conway of the Rahway Police Department and Detective John Roesler of the Woodbridge Police Department - arrived at the City Tavern parking lot at approximately 6:20 p.m. When Officer Kowalski arrived at the City Tavern, Lieutenant Alvarez and Officer Alexander were already inside, seated at the bar next to one another. Officer Kowalski took a seat three seats to the right of Officer Alexander and two to the right of Lieutenant Alvarez.
At approximately 6:53 p.m., two females, one African-American and one Caucasian, walked into the City Tavern together. The black female approached Officer Kowalski and introduced herself as Alice. Officer Kowalski introduced herself as "Sue" and expressed an interest in purchasing narcotics. Alice told Officer Kowalski to place her hand behind her back; when she complied, Alice placed an item in her hand, and took $100 in exchange. The item later tested positive for cocaine. Alice then told Officer Kowalski that she was getting more "stuff" the following week, and to call her if she wished to purchase more. Officer Kowalski spoke to Alice face-to-face for approximately three to four minutes. It was the first and last time that Officer Kowalski viewed Alice in person until defendant's trial when she identified defendant as the seller named Alice.
On October 10, 2006, Officer Kowalski prepared a report in which she described her October 6 encounter with Alice. In that report, Officer Kowalski described Alice as a "black female, approximately 48 to 53 years of age, short black hair, approximately five-eight, five-ten inches tall, wearing a black shirt, black jacket and blue jeans." Sometime that same day, Officer Kowalski discussed the seller's general physical description with Detective Roesler.
On October 11, 2006, Brian Mieczkowski, another police officer working with the Task Force, provided Kowalski with a photograph, and explained that "he received this photo from Investigator Roesler, it was the photo of Alice Roberts." By that time, Officer Kowalski had been told that the full name of the woman she knew as Alice was "Alice Roberts." Officer Kowalski was not sure who told her the full name of the suspected October 6 seller named Alice, but she believed that it was approximately five minutes after the October 6 operation at a post-operation "meet-up" with the other officers. According to Officer Kowalski, no one told her that the picture represented the person who sold her drugs; rather, she was asked whether she could identify the person in the photograph and she said it was the person who sold her drugs at the City Tavern.
Later the same day, Officer Kowalski made a phone call to the telephone number she had been provided to get in touch with Alice. When a voice answered, Officer Kowalski asked for Alice. The person who answered the call told her to wait, and handed the phone to someone else. A second person introduced herself as Alice. Kowalski told Alice that she was "Sue," the "girl from the City Tavern bar from a couple of days ago." Kowalski then asked Alice whether they could "hook up" that night (street parlance for buy/sell drugs). Alice responded that she would send someone named Wendy to the parking lot of a nearby Seven-Eleven to complete the transaction. Alice said that Wendy was a white woman and would be driving a silver Nissan Altima.
An hour later, Kowalski went to the Seven-Eleven and met Wendy Cromwell, who matched the description provided by Alice. Cromwell confirmed that Alice had sent her. Kowalski gave Cromwell $100 in exchange for a powdery rock-like substance that later tested positive for cocaine. No arrests were made that day.
On October 20, 2006, Officer Kowalski was provided with another photograph at the police station, this time by Detective Roesler.*fn1 According to Officer Kowalski, when Detective Roesler showed her the photograph, he did not tell her that it was Alice Roberts; he only asked her to identify whether the person in the photograph was the person who sold her cocaine at the City Tavern. Officer Kowalski again positively identified the person in that photograph as the woman named Alice who sold her cocaine at the City Tavern on October 6.
On February 6, 2007, the Middlesex County Grand Jury returned Indictment No. 07-02-0259, charging defendant with a single count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). The grand jury on the same day returned a separate indictment, No. 07-02-0258, charging defendant with third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and N.J.S.A. 2C:5-2 (count three). Counts one and two of Indictment No. 07-02-0258 charged a co-defendant, Wendy Cromwell, with distribution related offenses.
In May 2007, Cromwell was accepted into the Middlesex County Pretrial Intervention Program. The Pretrial Intervention Program allows low-level first time offenders to avoid prosecution by being placed on minimally-supervised probation and participating in various rehabilitative services. Successful completion results in dismissal of the criminal charges against the offender. N.J.S.A. 2C:43-12.
Trial was scheduled to begin on July 11, 2007 before Judge Frederick P. DeVesa. Before trial, on June 27, 2007, defense counsel moved for a Wade hearing*fn2 to exclude the out-of-court photographic identifications of defendant made by Officer Kowalski. On June 28, 2007, during motion arguments, Judge DeVesa resolved that he would hold the requested Wade hearing following jury selection, even though defendant's motion had been filed out-of-time. On the same date, Judge DeVesa granted the State's motion to join the two indictments pursuant to Rule 3:15-1.
On July 11, 2007, Judge DeVesa conducted the Wade hearing. Officer Kowalski recounted the timeline of events leading up to defendant's arrest, including the facts surrounding her out-of-court identifications at the police station. Officer Kowalski also made an in-court identification of defendant, who was sitting in the court room, as the drug dealer named Alice from the controlled buy at the City Tavern. She then viewed the same pictures of defendant she had viewed earlier at the police station, and stated there was "no doubt in her mind" that the person depicted in both photographs was the dealer from whom she bought cocaine at the City Tavern. Judge DeVesa ruled that evidence of Officer Kowalski's out-of-court positive photographic identification of defendant was inadmissible, but ruled that she could make an in-court identification of defendant at trial.
Trial proceedings continued on July 11, 12, 16 and 17. During the trial, Officer Kowalski recounted the events leading up to defendant's arrest and made a positive identification of defendant as the seller named Alice at the City Tavern. She also testified that she recognized the telephonic voice of Alice as that of the seller named Alice in the City Tavern. Officer Kowalski admitted that her observation of the seller's hair, described in her report as short hair, diverged from those of the other officers, but she maintained that she never saw the back of the seller's head.
Officer Alexander also made an in-court identification of defendant as the woman he saw make an exchange with Kowalski at the City Tavern. Officer Alexander, who was facing the seller during the controlled buy, testified that the seller's hair was long, but was pulled back into long, hanging braids with a "scrunchie." Officer Alexander stated that one would not be able to tell whether the seller's hair were short or long if viewed from an angle directly facing her. Officer Alexander's police report stated that the seller was approximately forty-nine years old, between five-foot-eight and five-foot-ten inches tall, and was wearing a black jacket with a black shirt underneath at the City Tavern.
Lieutenant Alvarez testified that she observed a black woman and a white woman enter the City Tavern and approach Officer Kowalski. According to Lieutenant Alvarez, the black woman was approximately five-foot-eight, wore a dark-colored military-style jacket, and had "braids going back." Though Lieutenant Alvarez did not have "face-to-face" contact with the seller, she could "observe her face" and was able to identify defendant in court as the same woman.
Detective Crowell, one of the backup officers conducting outside surveillance from a parked car in the City Tavern's lot, testified that he observed defendant walking into and out of the City Tavern. Detective Crowell observed two women, one black and one white, arrive in a white vehicle. It was "just getting dark out," so the parking lot's overhead lights were on, but Detective Crowell had a "good opportunity" to observe the faces of the two women. Detective Crowell recognized the black woman as Alice Roberts, who he already knew from prior occasions. According to Detective Crowell, the two women were in the bar for "[a] few minutes" before returning to their car and driving away. Detective Crowell identified defendant in court as the woman he saw walking into the City Tavern whom he recognized as Alice Roberts at the time.
Detective Roesler, another backup officer conducting surveillance from the parked car, testified that it was "still daylight out" and the parking lot was well-lit when defendant arrived at the City Tavern. Detective Roesler saw two women exit the car, one white, the other black, but he was "slumped down" in his car seat because he is well known in Woodbridge and did not want to jeopardize the operation. He was able to observe that the black woman was wearing a dark-colored jacket and had "braids in the back of her head." Detective Roesler testified that Detective Crowell, who had a clear view of the two women, stated "that's Alice Roberts" as the two women walked into the bar. Detective Roesler estimated that five to six minutes elapsed between the time the women entered the bar and the time the two women returned to their car and drove away.
Wendy Cromwell testified at trial that she made the October 11 sale in the Seven-Eleven parking lot at defendant's request. Cromwell said that she had been living with defendant "off-and- on" and was at defendant's home on October 11. On that date, Cromwell answered defendant's cell phone at approximately 6:30 p.m. and spoke with a caller who asked to speak to "Alice." Cromwell handed the phone to defendant, who, according to Cromwell, made arrangements with the caller to sell cocaine. Defendant then asked Cromwell to drive to the Seven-Eleven to make the sale of cocaine to the caller. According to Cromwell, defendant gave her the cocaine and instructed her that she was to receive $100 in return.
On July 17, the jury returned a verdict finding defendant guilty of distribution of cocaine and conspiracy to distribute cocaine. On September 14, 2007, Judge DeVesa imposed the mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and imposed penalties and fines, sentencing defendant to a term of seven years incarceration with three years parole ineligibility on the sole count in Indictment No. 07-02-0259 (third-degree distribution of cocaine), and a concurrent term of five years incarceration with two years parole ineligibility on count three of Indictment No. 07-02-0258 (third-degree conspiracy to distribute cocaine).
On January 31, 2008, defendant filed the present appeal. The tardiness of the filing was due to attorney neglect, so defendant was permitted to file as within time.
On appeal, defendant's raises the following arguments:
POINT I: BY SHOWING A SINGLE PHOTOGRAPH OF THE DEFENDANT TO THE UNDERCOVER OFFICER, AND TELLING HER THAT THE DEFENDANT WAS THE TARGET OF THE POLICE UNDERCOVER OPERATION, THE POLICE IRREPARABLY TAINTED THE OFFICER'S IN-COURT IDENTIFICATION OF DEFENDANT AS THE PERSON WHO SOLD DRUGS TO HER.
POINT II: THE TRIAL COURT'S ERRONEOUS REFUSAL TO ALLOW DEFENSE COUNSEL TO ARGUE IN SUMMATION THAT THE POLICE DID NOT CONDUCT A LINEUP OR PHOTO ARRAY IDENTIFICATION PROCEDURE DEPRIVED DEFENDANT OF HIS [sic] SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL. POINT III: THE PROSECUTOR OVERSTEPPED THE BOUNDS OF PROPRIETY AND DEPRIVED DEFENDANT OF HIS [sic] CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IN SUMMATION HE BOLSTERED THE CREDIBILITY OF THE POLICE WITNESSES ...