On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-07-02697.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez and Miniman.
Following a jury trial, defendant Ralph Sowell was convicted of third
degree conspiracy to violate narcotics laws pursuant to N.J.S.A.
2C:5-2; third degree possession of heroin pursuant to N.J.S.A.
2C:35-10a; and third degree possession with intent to distribute
heroin pursuant to N.J.S.A. 2C:35-5a(1) and -5b(3).*fn1
Judge Thomas R. Vena imposed a ten-year term with a five-year
parole disqualifier. We affirm.
Defendant, an inmate at Northern State Prison, received a visit from Bonita Pitt on January 10, 2004. Department of Corrections (DOC) Sergeant Salvatore D'Amico testified that he monitored the inmate visitation session through a security camera system. He saw what he believed to be a drug transaction occurring between defendant and Pitt. D'Amico asked fellow officers to seize defendant and a potato chip bag that had been discarded. D'Amico continued to monitor the live video feed. He saw DOC Lieutenant Blevins seize defendant, and DOC Sergeant Eric Thompson recover the potato chip bag. D'Amico went to the location where defendant was detained and emptied the chip bag onto a desk. D'Amico found thirty decks of heroin nested inside two balloons from the chip bag.
D'Amico testified that he observed Pitt and defendant on the live video feed sitting on the backs of their chairs and then leaning forward. He saw Pitt reach into her front left pocket, take an item out and place it in defendant's hand. D'Amico testified that defendant placed the item into a bag of potato chips as he leaned back.
At trial, the State played the video of the interaction between defendant and Pitt, as well as the seizure of defendant and the bag of potato chips. D'Amico described the events as the tape played for the jury. On cross-examination, D'Amico acknowledged that Pitt appeared to be kissing defendant on the cheek at the time that the exchange took place. According to D'Amico, Pitt took an item from her pocket and leaned into defendant. D'Amico described Pitt's behavior prior to leaning into defendant as "trying to [surveil] the area to see if anybody was watching."
Investigator Leonard Randolph testified that he took a statement from Pitt after giving her Miranda*fn2 warnings. According to Randolph, Pitt "stated that the contents of the balloons was heroin, and that [an] individual by the name of Kevin agreed to pay her $100 to bring the balloons into the jail." Randolph corroborated Pitt's story by finding an entry on the visitor card for an individual named Kevin.
DOC Investigator Manuel Alfonso qualified as an expert "in the field of narcotics investigations within the Northern State Prison." Alfonso was asked the following hypothetical questions:
Q: Okay. Officer, I'm going to provide you with a hypothetical and I would ask that you assume that the facts are true for purposes of this hypothetical. Okay.
[Assume that a]n officer observes subject A sitting across from subject B. Subject B reaches into a pocket. Subject A has a bag of potato chips in their hand. Both subject A and subject B lean forward. Subject A has the bag of chips wide open. Subject B leans forward and drops the item that's in the hand into the bag of chips. Both subjects then lean back into their original positions. Subject A looks inside the bag and continues - and continues in - in his or her original position. Can you render an opinion?
Q: Okay. And what is that opinion?
A: That an exchange of narcotics took place.
Q: And what is the basis of that opinion?
A: Well, I base that on the facts that you've given. Mostly the covert act of kissing, and then moving the hand at the same time in order to draw attention away from the hand. The placement of the bag in - in between the legs, and the hand dropping something ...