On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Grall and LeWinn.
Defendant Damielle Tondee appeals from a final judgment of conviction and sentence. Although defendant was one of eleven, including Latoya Simmons and Porsche Speaks, charged in the indictment, he was tried separately. A jury found him guilty of conspiracy to dispense or distribute a controlled dangerous substance (CDS) in the second and third degrees, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, and employing a juvenile, K.G., to distribute or dispense CDS in the second degree, N.J.S.A. 2C:35-6.
Due to his prior convictions, defendant was subject to a mandatory extended-term sentence and period of parole ineligibility for employing a juvenile. N.J.S.A. 2C:43-6f. For that crime, the trial judge sentenced defendant to a fifteen-year term, seven and one-half years to be served without possibility of parole, and to concurrent terms of seven and four years, respectively, for second- and third-degree conspiracy. Those concurrent sentences are consecutive to defendant's fifteen-year term. Appropriate fines, penalties, assessments and fees were imposed.*fn1
On appeal, defendant argues:
I. THE DEFENDANT'S RIGHT OF CONFRONTATION WAS VIOLATED WHEN THE COURT PERMITTED DEFENSE COUNSEL TO ELICIT INFORMATION ABOUT A CONFIDENTIAL INFORMER. (Partially Raised Below).
Impact On The Jury's Verdict. Defense Counsel's Conduct In Bringing about The Error
II. OTHER CRIME EVIDENCE, SPECIFICALLY TESTIMONY OF DOMESTIC VIOLENCE BETWEEN SPEAKS AND THE DEFENDANT, WAS IMPROPERLY ADMITTED AND HIGHLY PREJUDICIAL. (Not Raised Below).
III. THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL ON THE EMPLOYING A JUVENILE OFFENSE.
IV. THE COURT ERRED IN FRACTIONALIZING THE CONSPIRACY COUNT INTO TWO SEPARATE OFFENSES, FAILING TO MERGE THE COUNTS AT SENTENCING, AND THEN IMPOSING A CONSECUTIVE TERM FOR THE SECOND-DEGREE CONSPIRACY. (Not Raised Below).
A. Merger Of Conspiracy Convictions.
B. The Second-Degree Conspiracy Count Must Run Concurrent.
The State's evidence consisted of the testimony of one indicted co-conspirator and the officers and investigators who worked with the Hudson County Prosecutor's Office in September 2006 on this investigation along with the evidence they gathered. On September 26, search and arrest warrants were executed at three locations in Jersey City. The searches revealed drugs, including 78.97 grams of cocaine and 1.875 grams of heroin, paraphernalia used in the packaging of drugs for distribution, guns, ammunition and cash.
Prior to obtaining the search and arrest warrants, the investigators conducted surveillance and intercepted the defendant's telephone calls. Lieutenant Keith Stith, the supervisor of this investigation and who was qualified by the trial court to give expert testimony on the subject, explained the drug-trade lingo used by the participants. The testifying co-conspirator and the mother of defendant's child, Porsche Speaks, also explained what she understood defendant to mean in their several conversations about drugs.
On September 6, defendant directed K.G. to bring "a whole one with ten in it, smack, I mean fish." K.G. was born November 1990 and defendant was born May 1983. Thus, at the time of the offenses, K.G. was fifteen and defendant was twenty-three. "Fish" is a term used for heroin, and "ten in it" is a reference to ten-pack bundle. Defendant told K.G. where to deliver and store the drugs. On another occasion, defendant asked K.G. where he was storing the drugs and demanded the code to access them. In a separate conversation, defendant asked K.G. if he was "done," and K.G. explained that he had "three bottles [of cocaine] and a bundle [of heroin] left." Later, defendant demanded to know where the money was, told K.G. he owed him "five hundred" and said he was coming to get him. In another conversation, defendant directed K.G. to take a specified amount of drugs to a specific place and sell them.
On September 15, officers conducting surveillance at 1036 Garfield Avenue saw defendant leave that address at 4:20 p.m. He was driving a black Pontiac, which was registered to Latoya Simmons at that address. He went to 96 Van Cleef Street, the address of K.G.'s apartment, and he and K.G. left with a brown paper bag. When they returned to 1036 Garfield Avenue, K.G. took the bag inside.
A search of K.G.'s apartment yielded a locked box that contained numerous empty glass vials with blue caps, a small glass vial with a red cap containing white powder, eleven glassine envelopes with faded red markings and four packages with numerous glassine envelopes rubber banded together. A brown residue was discovered in his bedroom.
The apartment at 1036 Garfield Avenue was also searched. Neither defendant nor Latoya Simmons was there when the police arrived. But Morris Tondee, defendant's brother, was and a phone bill and identification card issued to defendant at that address were found. Simmons arrived during the search and said the apartment was hers. The investigators recovered cocaine, a bag containing glass vials and plastic tops, a digital scale and $8340. Simmons and Morris Tondee were arrested.
Defendant's conversations with Speaks were also intercepted. She lived in a single-family home at 150 Bayview Avenue with several members of her family. Her room was in the basement. In searching her room, the investigators found a shopping bag with glass vials, red caps and white powder; a bag of plain rice; fifty packs of heroin stamped "Stop"; a shoe box containing vials with white caps; a bag of empty glass vials; an electronic scale; and various documents in defendant's name, including a student identification card.
At trial, Speaks explained her relationship with defendant. Defendant was not living with her but stayed with her on occasion, and the drugs in her room belonged to him. She held the drugs for him, and he called her when he wanted to bring drugs there or pick them up. He usually came himself but sometimes sent someone else.
Speaks also explained certain terms used in her intercepted conversations with defendant. When defendant said he was "dirty," he meant he had drugs and wanted to keep them at her house, and when he told her to "bring [him] one of those things to the door right now," he meant drugs. By telling her that someone was coming to pick up "the box things," he referred to a brick of heroin wrapped in magazine paper. He used the terms "fish" and "chicken" to refer, respectively, to bricks of heroin and vials of cocaine. He asked her for a bag of rice, because, as she later came to understand, rice was used to store the drugs. Stith, testifying as an expert, confirmed the common use of rice in storing drugs and the meanings assigned to "fish" and "chicken" by those in the drug trade. According to Speaks, she was not paid by defendant or any person he sent to her home. She did what defendant asked because he "made" her.
Prior to testifying at defendant's trial, Speaks pled guilty pursuant to a plea agreement. The State promised to recommend a five-year sentence subject to an eighteen-month term of parole ineligibility and she agreed to testify against defendant.
Defendant chose not to testify at his trial and did not call any witnesses.
Defendant argues that his right of confrontation was violated when his attorney elicited testimony about an informant who did not testify at trial. The basis for this claim is Stith's testimony on cross-examination.
The cross-examination to which defendant points follows:
Q: Okay. Now, [the wiretap] all came about from your meeting with a confidential informant; correct?
Q: Okay. And what is an informant? Is that someone often who is facing criminal charges and wants to help themselves out?
Q: Okay. And based on the information they give you, they'll basically help themselves and keep them out of jail perhaps?
[PROSECUTOR]: Judge, may we approach sidebar for a moment?
[PROSECUTOR]: I have an - I have a problem about this line of questioning, Judge.
[PROSECUTOR]: I object to, specifically, getting into the ...