On appeal from Superior Court of new Jersey, Law Division, Camden County, Indictment No. 07-12-4049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Defendant Danny Reyes was charged, under Camden County Indictment Number 07-12-4049, with third-degree possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of a controlled dangerous substance in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of a controlled dangerous substance within 1000 feet of a school in violation of N.J.S.A. 2C:37-7 (count three); second-degree distribution, dispensing or possessing with intent to distribute a controlled dangerous substance within 500 feet of real property comprising a public housing facility, a public park, or a public building in violation of N.J.S.A. 2C:35-5a, and contrary to N.J.S.A. 2C:35-7.1 (count four); third-degree conspiracy to possess a controlled dangerous substance with the intent to distribute in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1)(b)(3) (count five); and fourth-degree resisting arrest in violation of N.J.S.A. 2C:29-2(a)(2) (count six). Tried by a jury, defendant was found guilty of all charges.
On December 8, 2008, the trial judge merged counts one, two, three and five into count four--the second-degree offense. Defendant was sentenced to ten years of imprisonment with five years of parole ineligibility, as well as other appropriate fines and penalties. Regarding the conviction under count six, which did not merge with count four, the trial judge sentenced defendant to eighteen months of imprisonment to run concurrent with the sentence on count four. Defendant appeals. We affirm.
The relevant facts based on the testimony may be summarized as follows. On September 28, 2007, at approximately 7:00 a.m., the High Intensity Drug Trafficking Area (HIDTA) Narcotics Group conducted a buy/bust operation in the area of Seventh and York Streets in Camden. Officer Shannon Smith of the Camden Police Department was assigned, as an undercover operative, to purchase illegal narcotics from drug dealers at the location mentioned. United States currency bills were provided to facilitate the buys. The serial numbers on the bills were recorded by photocopying with a view to recovering the bills after the sale by using backup units and making arrests.
Officer Smith testified that he had previously purchased illegal narcotics in this area as an undercover officer approximately fifteen times and had participated in approximately fifty drug arrests.
Officer Smith waited less than two minutes before he was approached by an individual later identified as Jose Ortiz. Ortiz asked Officer Smith what he was looking for and Officer Smith replied, "two bags of dope meaning heroin." Ortiz then walked halfway down the block and spoke to another person who was later identified as defendant.
Defendant approached Officer Smith on his bicycle and inquired as to what he wanted. Officer Smith answered, "two bags of dope." Defendant inquired if Officer Smith was "21 Jump Street," that is, police. Officer Smith said he was not. Defendant then opened a small change purse containing heroin and handed Officer Smith two bags of heroin in exchange for two of the photocopied ten dollar bills. Officer Smith put the two bags in his pocket and returned to his vehicle while his partner, Investigator Warwick, provided descriptions of defendant and Ortiz to the backup teams.
Officer Smith testified that after leaving the area, he circled the block and confirmed that the backup units arrested the correct individuals, Ortiz and defendant. Officer Smith further stated that he met with his sergeant at a predetermined location and turned the evidence over to him. Officer Smith testified that the location of the drug transaction was within 1000 feet of Pine Point School and within 500 feet of Pine Point Park.
On cross-examination of Officer Smith, it was brought out that no fingerprints were recovered from the two bags of heroin purchased from defendant. On redirect, Officer Smith testified that he was standing no more than six inches to a foot from defendant at the time he made the buy and had no doubt that defendant was the individual who had sold him the heroin. The drugs were not fingerprinted because, as he put it, "[defendant] gave them directly to me."
Detective Sean Miller of the Camden Police Department was a member of the backup teams and made the arrest of defendant. After receiving descriptions of the individuals involved in the sale, Detective Miller observed defendant on a bicycle, and Ortiz, standing by the corner store. Detective Miller announced he was police when he exited his vehicle. Initially, defendant fled on his bicycle, which he eventually abandoned, but continued to flee on foot. He was apprehended by Detective Miller who never lost sight of defendant throughout the pursuit. A search incident to arrest of defendant led to the recovery of the recorded ten dollar bills that Officer Smith had used to purchase the two bags of heroin from defendant, as well as an additional fourteen ...