On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2010
Before Judges Parrillo and Espinosa.
Defendant appeals from his sentence and convictions for first-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(1), and second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:29-3(b)(4). We affirm.
On the evening of November 27, 2006, Sergeant Kevin O'Brien of the Plainfield Police Department was conducting surveillance at a residence on Greenbrook Road in Greenbrook when he observed defendant arrive at the residence in a white Lincoln Navigator. Defendant and a male passenger walked to a side door of the house, where Adan Pena-Gonzalez let them in.
On the following day, Sergeant O'Brien observed Pena-Gonzalez leave the Greenbrook Road residence at approximately 1:30 p.m. and get into a taxi. Sergeant O'Brien followed the cab to an intersection in Plainfield, where Pena-Gonzalez exited the taxi and made several calls on his cell-phone. A short time later, defendant arrived in his Navigator. Pena-Gonzalez got into the Navigator. The two circled the block for less than five minutes and then defendant dropped Pena-Gonzalez off in the same spot where he had picked him up. Pena-Gonzalez returned to the Greenbrook Road residence in another taxi.
Later that day, at 6:00 p.m., Sergeant O'Brien saw defendant drive a white van to the Greenbrook Road residence. Marvin Lopez-Aval got out of the passenger side of the van and approached the side door of the house carrying a white shopping bag. Pena-Gonzalez met Lopez-Aval at the side door and took the bag from him. Lopez-Aval returned to the van and left the area with defendant.
At about 6:40 p.m., Pena-Gonzalez left the house, walked to a gray Acura in the driveway, and motioned with his hand. As he did, the occupant of the Acura opened the trunk. Pena-Gonzalez placed what looked like the same shopping bag he had received from Lopez-Aval into the trunk. Pena-Gonzalez then entered the passenger side and the car left the area.
A few minutes later, marked patrol units stopped the Acura. Sergeant O'Brien arrived and identified the driver as Denton Black and the passenger as Pena-Gonzalez. Black consented to a search of the vehicle. Sergeant O'Brien searched the trunk, where he found the same bag he had seen earlier and detected a strong smell of cocaine emanating from the bag. He opened the bag and found cocaine in a sandwich bag that was inside another plastic bag. Pena-Gonzalez was arrested.
Pena-Gonzalez told the police that he had arranged with defendant to have 400 grams of cocaine delivered and would pay defendant after it was sold. A lab report confirmed that the bag seized from the gray Acura contained three hundred ninety-one grams of cocaine.
The police went to defendant's home and asked for consent to search his home, storage facility and vehicles. He consented to all searches. The searches turned up no drugs, drug paraphernalia, suspicious amounts of currency or any other objects that would suggest drug trafficking.
The parties entered into a stipulation at trial as to the following: that at the time of the offense, Lopez-Aval was a juvenile and defendant was an adult, and that the cocaine had a street value of $12,000.
Defendant testified at trial. He stated that Lopez-Aval worked for his cleaning company, J&M Cleaning. He also stated that Pena-Gonzalez contacted him by phone looking for work and that he eventually hired him for some snow removal. Defendant denied any knowledge as to the cocaine seized. He explained that he went to Pena-Gonzalez's house on November 27 to get a copy of insurance papers for Pena-Gonzalez's truck for ...