On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Rodríguez and Miniman.
Following a jury trial, defendant Doyle Raindrop was convicted of nine drug related offenses. Defendant was tried jointly with co-defendant Rasaan Furgess. After merger, defendant was sentenced for: second degree possession of CDS (cocaine) with intent to distribute while within 500 feet of a public housing facility; and second degree possession of CDS (heroin) with intent to distribute while within 500 feet of a public housing facility. Judge Michael R. Casale granted the State's motion for imposition of an extended term, and imposed concurrent terms aggregating eight years with a three-year parole disqualifier. We affirm.
These are the salient facts. Newark Police Detective Louis Weber testified that on January 18, 2007, he and other officers conducted surveillance of a courtyard at the Pennington Court Apartments project in Newark. Weber saw defendant and Furgess walk into the courtyard. A Caucasian woman approached defendant in the courtyard, spoke to Furgess, and then handed him some paper currency. Furgess gave the money to defendant, who then walked to the windowsill of an apartment on the first floor of Pennington Court. Defendant retrieved "unknown objects" from the windowsill and handed them to Furgess. Furgess, in turn, handed the objects to the woman.
Believing that they had witnessed a drug transaction, the officers proceeded into the courtyard to make arrests. While defendant was immediately apprehended, Furgess ran away. Weber testified that when another officer shouted that Furgess had climbed into the window of the first floor apartment, where defendant had obtained the unknown objects, Weber ran into the building and apprehended Furgess as he was exiting that apartment. Furgess was searched. He had glassine envelopes with heroin on his person. In the apartment, the police found glassine envelopes of heroin and forty-three vials of cocaine in the windowsill and two "rocks" of cocaine on the kitchen table. Defendant and Furgess were arrested. The police found $183 in cash on defendant's person, and $660 on Furgess.
At trial, defendant sought to impeach Weber with his Grand Jury testimony where he mistakenly stated it was defendant who went through the window, when it was Furgess who had done so. On cross-examination, Weber agreed that his police report also inaccurately stated that the individual who climbed through the windowsill in an attempt to escape, who was searched and found to have drugs on his person, was the same individual who reached into the windowsill for the unknown objects.
Essex County Sheriff's Officer, Reginald Leon Holloway, testified as an expert in street level narcotics sales. Specifically, he testified to: packaging of cocaine and heroin for street distribution; the purpose of a stash location; and the manner in which street sales of illicit narcotics are conducted.
Defendant presented two witnesses to refute the police officer's account. One witness was Madeline Ortiz, the tenant who lived in the apartment where Furgess was apprehended. She testified that on the day of the arrest, a police officer climbed through the window into her bedroom and then went to the front door and let the other officer inside. She denied that anyone else had climbed through the window, or knowing defendant or Furgess. Ortiz stated that she saw defendant and Furgess for the first time on the day of the arrest.
Thomas Caraway testified that on the day of the arrest, he spoke to defendant in the courtyard and then left. When he came back shortly thereafter, two police vehicles pulled into the courtyard and detained him, defendant and others. The officers went around the corner and brought back Furgess, who was then searched and handcuffed.
The week before trial, defendant moved to sever his trial from Furgess's trial. The basis for the argument was that at the arraignment hearing, both defendant and Furgess were represented by the same attorney from the Office of the Public Defender. At his arraignment, Furgess stated on the record that "[defendant] was not in the pinch. He was nowhere near there."
The judge indicated that this was not the time to discuss that issue and that it would be addressed at a later date.
At the hearing on the severance motion, Furgess's counsel indicated that Furgess would not testify "under any circumstances." On the day of trial, defendant renewed the severance motion. The judge denied the motion because there were no "clear concrete reasons under State v. Sanchez, 143 N.J. 273 (1996), that justified severing the trials"; and there was "no affidavit, no certification, no proffer other than ...