On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010
Before Judges Rodríguez, Grall and LeWinn.
Following a jury trial, defendant, Nadir Lawrence, was convicted of two counts of third-degree distribution of a controlled dangerous substances (CDS), heroin, N.J.S.A. 2C:35- 5(a)(1), (b)(3), (counts one and five)*fn1, and two counts of third-degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7, (counts two and six). Defendant was sentenced to an aggregate term of ten years with a five-year parole ineligibility period. He appeals, raising seven claims of trial error and the contention that his sentence is excessive. We affirm.
The pertinent trial evidence may be summarized as follows. In June 2007, "[b]ased on information... received," members of the East Orange Police Department's Violent Crimes Task Force, Narcotics Division, set up surveillance of possible narcotics activity in the area of Brookside Street and South Clinton Avenue. On the night of June 5, 2007, Detective Anthony Ricks observed defendant, who was known to the officer, enter a vehicle parked outside defendant's residence. At the request of Ricks, Detective Gary Blakney approached the vehicle and obtained identification from defendant who was in the passenger seat.
Based on further investigation, Ricks obtained a direct contact phone number, known as a "chirp phone number," which he believed to belong to defendant. Under Ricks' direction, undercover Detective Clothy Ortiz called that number and engaged defendant in a conversation; she called him again on the following day and arranged to meet him to purchase ten envelopes of heroin. That transaction occurred on June 7, 2007.
Ortiz was equipped with a two-way radio, known as a "KEL," which did not record but permitted Ricks to hear her conversation with defendant. Ricks also testified that he used binoculars to observe defendant's transaction with Ortiz, which he described as follows: defendant walked to the passenger side of Ortiz's vehicle, "reached in the vehicle and made a hand transaction with the undercover detective."*fn2
Ortiz testified that defendant "pulled out... ten little envelopes wrapped in a rubberband[,]" which defendant gave to Ortiz in exchange for one hundred dollars in cash. Immediately following that transaction, Ortiz "surrendered the product" to Ricks.
Ortiz engaged in a second undercover narcotics purchase from defendant on June 13, 2007; again, this transaction was arranged by Ortiz calling defendant's chirp phone number. Accompanied by Detective Katie Dunn, who was driving, Ortiz met defendant at a pre-arranged location. She stated that defendant "walked over to [her] side of the car," and she told him she "wanted five. And... he put his hand in the [sic] pants and removed... a group of... gla[ss]ine envelopes. He counted five and then he said, here, I'll toss [in] one extra...." Ortiz gave defendant fifty dollars in cash. Again, she immediately left the area and met with Detective Ricks to whom she gave the six envelopes. Ricks had monitored and observed this transaction as well, through use of the KEL.
Ricks identified schools within 1000 feet of each transaction. He also testified that defendant was not arrested immediately after either transaction because the police investigation was "still... ongoing."
Defendant was ultimately arrested on June 27, 2007. At the time of his arrest he had in his possession a cell phone which the police ascertained was the same phone used to arrange the transactions with Ortiz.
On appeal, defendant raises the following contentions for our consideration:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY ...