On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
A grand jury indicted defendant Rodney Coleman and nineteen other individuals on numerous drug charges stemming from a five-month undercover investigation. Defendant and co-defendants, Kelly Felder, defendant's wife, Rodney Harris, defendant's son, and Donald Scott, defendant's neighbor, were tried jointly. Prior to trial, following a Driver*fn1 hearing the trial judge granted the State's motion to admit electronically recorded wiretap phone conversations and various videotape surveillance.
On defendant's motion at the close of the State's case, the judge dismissed count twenty-five charging him with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. A jury convicted defendant of second-degree conspiracy to possess a controlled dangerous substance (CDS) (cocaine) and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); two counts of second-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2) (counts two and three); third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count seven); third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count nine); third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2) (count ten); third-degree distributing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count eleven); and two counts of third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (counts twenty-two and twenty-three). The jury acquitted defendant of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count twenty-four), and second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1 (count twenty-six). Following the jury's verdict, defendant pled guilty under a separate indictment to second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b).
At sentencing, the trial judge granted the State's motion for a mandatory extended term sentence. The judge merged count one with count two and imposed a twenty year term of imprisonment with a ten-year period of parole ineligibility on count two. The judge also sentenced defendant to a concurrent extended term of twenty years with ten years of parole ineligibility on count three; a concurrent five years on count seven; merged counts nine and eleven with count ten an imposed a concurrent extended term of twenty years with ten years of parole ineligibility on count ten; merged count twenty-two with count twenty-three and imposed a concurrent five years on count twenty-three; and a concurrent seven years for the second-degree possession of a weapon by a convicted felon charge. The judge also imposed the appropriate fines and penalties, and suspended defendant's driving privileges for two years.
The following facts were presented at trial. In August 2004, Sergeant Detective John Cerefice of the New Jersey State Police became involved in a narcotics investigation in Irvington, the target of which was a man whose first name was "Rodney." During this investigation, Cerefice met Eddie McElhine, a documented State Police informant, who stated that "Rodney's" last name was "Coleman," and that Coleman, later identified as defendant, distributed one to two kilograms of cocaine per week and kept a handgun in his apartment for protection. McElhine also gave Cerefice Coleman's cell phone number.
Defendant maintained two residences: one located on 40th Street in Irvington, and the other located on Stuyvesant Avenue in Irvington, which was a one-bedroom apartment with a living room and kitchen where he and Felder resided. Defendant also drove a black Acura.
CDS Sales to Undercover Officers
On September 16, 2004, Cerefice and other police officers began surveillance of the 40th Street apartment in order to corroborate the information they had received about defendant's narcotics activities. Cerefice saw defendant's black Acura was parked outside the apartment at the time of the surveillance, and he also saw "cars pulling up [to the apartment], staying for a short period of time and then departing[,]" actions he considered consistent with narcotics distribution.
To initiate contact with defendant, Cerefice gave his cell phone number to McElhine, who then gave it to defendant. At approximately 10:00 p.m. on September 16, 2004, Cerefice received a phone call from a man identifying himself as "Rodney." Cerefice's caller ID confirmed that the call was from defendant's cell phone number. Cerefice told defendant that his name was "John," he was from South Jersey, and he regularly made a profit of $150 to $200 selling a gram of cocaine. Defendant told Cerefice that he had "to try [defendant's] product because it was the best on the market," defendant had been in the business for approximately twenty-two years, and sold $10,000 worth of cocaine the previous week. Cerefice agreed to call defendant back the following week to arrange a purchase. Defendant gave Cerefice his cell phone number.
Following this conversation, Cerefice and State Police Detective Daniel Connolly directed State Police Detective Peter Layng to call defendant and arrange a cocaine purchase. During the week of September 22, 2004, Layng called defendant's cell phone, identified himself as "Pete," and agreed to purchase one ounce of cocaine from defendant. Defendant told Layng that the ounce would cost $37 per gram. The two arranged to meet on September 29, 2004, at the Garden State Parkway service area in Union.
At approximately 7:30 p.m. on September 29, 2004, Layng arrived at the service area before defendant. Defendant arrived in a dark-colored Acura accompanied by McElhine, who was sitting in the front passenger seat. Layng recognized defendant from a photo he had seen prior to the meeting. Layng entered the rear seat of defendant's car, and defendant gave him one ounce of cocaine in exchange for $1,040, which Cerefice had given Layng. Layng exited the car and defendant drove away.
In October, 2004, Layng called defendant to arrange another purchase of one ounce of cocaine. Defendant said the price was $35 per gram, and the two agreed to meet on October 18, 2004 at a restaurant in Union located near the service area where the first drug transaction occurred. Layng arrived at approximately 6:20 p.m. on October 18, 2004. A surveillance team followed defendant's black Acura from the 40th Street apartment to the restaurant in order to determine whether the cocaine was coming from the residence. Defendant arrived at the restaurant at approximately 6:30 p.m., once again accompanied by McElhine. Layng entered the rear seat of defendant's car, and defendant gave him one ounce of cocaine in exchange for $980, which Cerefice had given Layng. Layng exited the car and defendant drove away. The transaction was captured on videotape, which was shown to the jury and narrated by Layng.
On December 8, 2004, Cerefice called defendant, identified himself as "John," and arranged to purchase fifteen grams of cocaine for $450. Defendant informed Cerefice that if he was not available his son, Rodney, later identified as Harris, would conduct the transaction.
The following day, at approximately 11:00 a.m., posing as "John," Detective Michael Lasalandra of the Parsippany Police Department called defendant from Cerefice's cell phone and arranged to meet defendant at the 40th Street apartment about twenty minutes later. When Lasalandra arrived at the apartment, Harris admitted the detective into the apartment. After the two men briefly discussed the cocaine purchase, Harris went into another room, and returned with fifteen grams of cocaine. Lasalandra paid Harris $450 and left the apartment.
Electronic Surveillance and Execution of Warrants
On October 19, 2004, the police obtained a dialed number retriever (DNR) or "pen register" for defendant's cell phone. A DNR identifies incoming and outgoing calls to the phone number along with the date, time and length of the calls. The length of each call is significant because calls of a short duration may indicate the phone owner's involvement in CDS distribution. The DNR revealed that defendant had over one hundred and fifty pen register calls with co-defendants or clients during the month the DNR was in place.
In December 2004, the police conducted court-approved wiretap monitoring of defendant's cell phone conversations in conjunction with surveillance of his two residences, during which they observed numerous narcotics transactions. The police recorded over sixty wiretap conversations, the majority of which involved narcotics transactions, and one involved defendant's sale of a gun to Cerefice. There were also two conversations between defendant and Felder, where defendant told her that people were coming to their apartment to purchase cocaine or give her money for previous purchases, and several conversations between defendant and Harris involving drug transactions. The jury heard the wiretap conversations and had the transcripts available for their review.
The police also obtained search warrants for defendant's two apartments, and arrest warrants for defendant, Felder, Harris, and two other co-defendants. On December 30, 2004, at approximately 7:00 a.m., the police executed the warrants at the Stuyvesant Avenue apartment, where they found defendant and Felder. The police searched the apartment, finding a bag of cocaine in plain view on a kitchen cabinet shelf, a bag of cocaine inside an entertainment center in the living room, over forty bags of cocaine and a digital scale inside the pocket of a black leather jacket located in the living room closet, a bullet-proof vest in the living room closet, a box of .9 mm luger ammunition and two loaded ...