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State of New Jersey v. Wali Smith

March 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALI SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-07-02494.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2010 - Decided Before Judges Carchman and Messano.

Following a jury trial, defendant Wali Smith and his co-defendant Quadree Manning were convicted of second-degree conspiracy to possess heroin and cocaine and to possess heroin and cocaine with the intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of heroin with the intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; second-degree possession of heroin with the intent to distribute within 500-feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of cocaine with the intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with the intent to distribute within 500-feet of a public park, N.J.S.A. 2C:35-7.1. Following appropriate mergers, the judge sentenced defendant to an aggregate sentence of eight-years imprisonment with a four-year period of parole ineligibility. Defendant appeals, and we affirm.

These are the facts adduced at trial. During the evening of May 9, 2007, Officers Carlos Rivera*fn1 , Javier Rivera, and Jimmy Cosgrove, members of the Newark Police Department, Third Precinct Narcotics Enforcement, were on plain clothes patrol in an unmarked car.

At approximately 9:00 p.m., Rivera noticed two men, later identified at trial as defendant and co-defendant Manning, standing near the corner of Broad Street and Tichenor Street, attempting to speak to pedestrians and approaching motorists. He decided to conduct surveillance of the two men, so the patrol car pulled over, and Rivera began observing the men with his binoculars.

Rivera observed an unknown male approach defendant. They spoke briefly, and the male "gave [defendant] what appeared to be paper currency." Defendant then turned to Manning and signaled "one" with his finger. Manning, in turn, jogged across the street, reached into a plastic bag that was placed at the base of a tree and gave the male an small unknown item. The male then walked away towards Broad Street while defendant gave Manning the currency.

At trial, Rivera opined that he believed he had witnessed a drug transaction based on the "hand-to-hand money transfer [and] the possible stash location."

The officers watched the male walk away towards Broad Street where he turned north onto Broad Street. They intended to follow and investigate him; however, their attempt to follow him in their car failed. About five minutes after they had left their surveillance point, a backup unit drove the officers back to the same location.

At that point, Rivera observed defendant near his original position conversing with a Hispanic female and Manning in "pretty much . . . the same location." The officers approached the three people, identified themselves as police officers and detained defendant and Manning. Javier Rivera retrieved the clear plastic bag from the tree. He conducted a field test of the contents of the bag, which consisted of 72 vials of cocaine and 46 bags of heroin labeled "blood money" in red ink, bound by rubber bands. Thereafter, the officers arrested defendant and Manning. Defendant was searched, but neither drugs nor money were found on him.

At trial, Sheriff's Officer Reginald L. Holloway, an expert witness in the field of street level narcotics, testified on behalf of the State and explained that a stash location is used to conceal narcotics and currency from law enforcement officers, competing drug dealers and potential thieves. According to Holloway, it is not uncommon for a person who is distributing narcotics to be found with no money or drugs when using a stash location. After being presented with a hypothetical based on the facts of this case, Holloway opined that the facts describe an "illegal, three-way, hand-to-hand narcotic transaction" and that the subjects intended to distribute the narcotics that were by the tree.

Defendant did not testify or call any witnesses on his behalf.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE DEFENDANT COULD BE CONVICTED OF A LESSER OFFENSE BASED ON HIS OWN CRIMINAL INTENT AND HIS OWN PARTICIPATION IN THE CRIME (NOT RAISED BELOW).

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, AMBIGUOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF PUBLIC PARK DRUG ZONE OFFENSES (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR.

10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE BY ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE COMMISSION OF THE CRIMES (PARTIALLY RAISED BELOW).

A. The trial court improperly admitted evidence of anonymous complaints of drug dealing in the same location where the defendant was alleged to have been dealing drugs.

B. The state proved the public park and school zone offenses by relying on testimonial assertions by absentee witnesses (not raised below).

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY PREJUDICIAL LOCATION PROFILING EVIDENCE (NOT RAISED BELOW).

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION, EVEN ...


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