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State of New Jersey v. Richard A. Scott

March 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD A. SCOTT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2792.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010 -- Decided Before Judges R. B. Coleman and J. N. Harris.

Defendant Richard A. Scott appeals from a final judgment of conviction of drug and weapons related offenses and resisting arrest. Defendant essentially maintains he is an innocent person who happened to be in the wrong place at the wrong time and that he found himself present during a "sting operation" concerning a drug transaction of which he was not a part. The jury found otherwise and we affirm.

In March 2007, Detective Bryan Minkel of the New Jersey State Police Drug Trafficking South Unit was contacted by an Officer Myers of the Philadelphia Police Department, Narcotics Unit. Meyers advised Minkel that one of his confidential informants had negotiated a deal to purchase seven ounces of crack cocaine from a source in Camden, but that the Camden source would not come to Philadelphia to complete the transaction. Myers asked Minkel to renegotiate the deal to be completed in New Jersey. Accordingly, Detective Minkel's team spoke with the confidential source and acquired information concerning the individuals involved in the proposed drug transaction.

Based on information from the source, Minkel and his team conducted an intelligence data bank check to determine the names of the identified sellers, Pierre Minor and Michael Harris. Minkel contacted Detective Sergeant Don Ciaccio, a twenty-one year veteran of the New Jersey State Police, to pose as a member of an organized crime syndicate. After planning the proposed deal with Minkel and his team, Ciaccio called Minor and arranged for the deal to take place in a parking lot adjacent to Campbell's Field in Camden at noon on March 22, 2007, at which time Ciaccio would pay $5,950 for seven ounces of cocaine.

Minkel and other surveillance officers stationed themselves around the drop site perimeter. The undercover operations team maintained contact with Ciaccio using an on-body recording device and transmitter. Minor and Harris arrived at the site in a black Dodge Intrepid and approached Ciaccio and the confidential source. They stated they only had six ounces of cocaine for sale, and Harris explained he did not bring the drugs with him for fear of being robbed. After Ciaccio assured the pair he had the money, Harris made a phone call. Upon completing the call, Harris advised that he would be back in ten minutes with the cocaine.

Harris drove off in the Intrepid while Minor remained behind with Ciaccio and the confidential source. In approximately ten minutes, the Intrepid returned to the parking lot with defendant in the front-passenger seat. A second vehicle, a black Dodge Magnum driven by co-defendant Lawrence Clements, followed the Intrepid into the parking lot. After the Intrepid stopped, defendant got out and visually scanned the parking lot. Harris also exited the vehicle, spoke briefly with defendant and then approached Ciaccio and Minor. Ciaccio suggested to Harris that the two get into Ciaccio's vehicle to complete the sale. Harris and Ciaccio entered the vehicle while Minor and the confidential source remained outside. Harris handed over a black bag containing six ounces of crack cocaine broken into quarter-ounce portions. At this point, Ciaccio gave a predetermined signal alerting the surveillance officers to move in and arrest Harris and Minor.

Minkel testified that defendant, on seeing the police units, jumped into the passenger side of the Magnum and attempted to flee the parking lot, which was surrounded by the police. Cornered, defendant and Clements exited the Magnum and fled on foot. State Troopers involved in the sting pursued as defendant ran into a construction site. During the foot pursuit, Trooper Christopher Demaise observed defendant throw a weapon into the backyard of a row home adjacent to the construction site. Demaise and a Camden police officer apprehended defendant after he jumped into a foundation hole within the construction site. Clements was also apprehended. The weapon, a Barretta 380 semiautomatic pistol, was recovered by State Troopers.

A Camden County grand jury returned indictment number 07-08-2792 charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree distribution and/or possession with intent to distribute CDS, N.J.S.A. 2C:35-5(b)(1) (count two); second-degree conspiracy/possession with intent to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(1) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b) (count six); second-degree weapons possession during CDS offenses, N.J.S.A. 2C:39-4.1(a) (count seven); and second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight).

Following the trial on May 13, 14 and 15, 2008, the jury found defendant guilty on all counts. At the sentencing hearing, the court merged counts one and three with count two and count eight into count seven. The court sentenced defendant on count two to a custodial term of twenty years with eight years of parole ineligibility. On counts five and six, the court imposed terms, concurrent with count two, of eighteen months and five years, respectively. On count seven, the court sentenced defendant to a custodial term of ten years, with a five year parole disqualifier, to be served consecutive to count two. In the aggregate, defendant received a thirty-year sentence with thirteen years of parole ineligibility. Requisite fines and penalties were also imposed.

In this appeal, defendant raises the following points of argument:

POINT I: THE TRIAL JUDGE SHOULD NOT HAVE SUA SPONTE TURNED A MERE LACK OF DEFENSE OBJECTION TO ADMISSION OF THE LAB REPORT INTO A FULL-BLOWN STIPULATION THAT, IF CALLED TO TESTIFY, THE FORENSIC SCIENTIST WOULD HAVE TESTIFIED TO CERTAIN "UNDISPUTED" FACTS THAT THE PARTIES "AGREE ARE TRUE." POINT II: THE PROSECUTOR'S SUMMATION IMPROPERLY ATTEMPTED TO "EXPLAIN" WHY THE STATE HAD NOT TAKEN ...


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