On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-02-0266.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Rashon M. Baker appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10a(1), and third-degree distribution of CDS, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3). After the judge denied defendant's motions for a judgment of acquittal or a new trial, the judge granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The judge then merged the possession conviction into the distribution conviction and sentenced defendant to an extended nine-year term with four years of parole ineligibility to run consecutively to another sentence defendant was already serving. The judge also imposed various penalties and fines, ordered defendant to provide a DNA sample, and suspended his license for six months. We now affirm.
In September 2006, Rutgers University Police Officer Swanetta Pitt and New Brunswick Police Officer Joshua Alexander were assigned to the Narcotics Task Force of the Middlesex County Prosecutor's Office. On September 22, 2006, Pitt and Alexander participated in an undercover, prearranged controlled drug purchase at the Spain Inn in Piscataway. Two other detectives from the Prosecutor's Office and three from the Piscataway Police Department acted as back-ups and monitored the situation. At approximately 3:45 p.m., an individual, who was not a police officer, drove Pitt and Alexander to the Spain Inn in an unmarked vehicle. Pitt was seated in the front passenger seat, and Alexander was seated in the rear passenger seat. Both officers were dressed in plain clothes, and neither was armed; however, the back-up officers were armed.
The target of their investigation, later identified as defendant, "[a]pproached the vehicle, opened the rear door on the driver's side, entered the vehicle, introduced hi[m]self, [and] spoke to the persons inside the vehicle." Neither officer gestured for defendant to enter the vehicle. Pitt angled her body to view defendant as he was talking to Alexander.
Once defendant was inside the vehicle, "[he] just basically went right down to business." He and Alexander negotiated the price of an "eight ball" of cocaine, and defendant ultimately accepted $180, although he "usually charge[d] [$]200." Pitt saw defendant give Alexander "a clear plastic bag with a white powder substance." After Alexander paid for the drugs, he asked "the target" for his telephone number, which he provided so Alexander "could contact him in the future for any future buys."
Once the transaction was completed, defendant exited the vehicle, and the officers drove first to a Task Force meeting in Piscataway, where they showed the group the evidence, and then to the Task Force office. Defendant was not arrested at the scene. A drug field test and a subsequent full analysis by the State Police Laboratory later confirmed that the white substance was 2.83 grams of cocaine.
Pitt and Alexander were the State's only witnesses at trial. When recounting the events of September 22, Pitt mainly referred to defendant as "the target." She testified that "the target that we were going to make a contact with approached the vehicle." Defendant remained in the vehicle for "[t]wo minutes at the most," and the only time she engaged him in conversation was to return his greeting. Following the purchase, she and Alexander identified defendant from a photograph "maybe two hours at the max, an hour to two hours at the max" later. She stated: "Alexander, he looked at the photo, I looked at the photo and agreed that was the person that we met with."
On cross, defense counsel asked Pitt, "You call the individual the target, correct?" Pitt replied affirmatively, and defense counsel then asked, "And that's how you knew him at that point, the target?" Pitt replied, "Yes." Defense counsel never objected to her use of the term "target" at any time during trial.
Alexander testified that the drug buy took place in the daylight. Because Alexander was seated next to defendant in the back seat of the vehicle, they were "really close to each other," and their "shoulders were pretty much touching." Alexander explained that his "focus was totally on him. And . . . I had back[-]up officers to basically keep an eye on me so I could keep my attention on him." The purchase took "not more than even four minutes" because the parties typically want to avoid getting caught by the police. He explained that a first meeting with a dealer "usually takes a little bit longer because . . . the dealer might be a little apprehensive" and it is necessary to "gain their confidence." After the individual exited the vehicle, Alexander watched him put the money in his pocket and cross the street.
Alexander stated that he later identified defendant after viewing a single photograph on September 28, 2006. He "knew it was him right away." He also identified defendant in court. The prosecutor showed Alexander the photograph used for the identification while he was on the stand. Alexander confirmed that he had "initialed that it was the gentleman who actually sold [him] the narcotics on the 22nd." Defense counsel never objected to the use of the photograph at trial and never sought a Wade*fn1 hearing regarding Alexander's identification of defendant.
On cross-examination, defense counsel asked, "So prior to the meet there was some idea about what you were going to purchase when you got there?" Alexander responded: "We knew he was selling cocaine. And pretty much they said that he usually deals in . . . [a] larger quantity. So they gave me about $200[ and] said . . . see what you could do." Alexander stated that he was sitting sideways while watching defendant "because you got to look at a person to talk to them basically," and defendant was sitting facing him. "I'm pretty sure he was sizing me up just like I was sizing him up. . . . God forbid, something happens. . . . [G]ot to know what I'm up against basically."
Defense counsel asked about the in-court identification, and Alexander stated that he recognized defendant "over a year later" even after conducting numerous other narcotics transactions. "The only difference is he looks like he lost a little bit of weight." Defense counsel asked about the single-photograph identification made six days after the purchase, and Alexander explained that the identification took place in "the office" with "people around." He did not recall if anyone else looked at the photograph with him. He had not met defendant prior to the purchase and did not have his full name on September 22.
The officers did not arrest defendant on September 22 because they had anticipated making future purchases from him. Alexander spoke with defendant by phone, and defendant "trusted" him after their first "good meeting." However, they ultimately did not make any subsequent purchases because defendant wanted to meet in Plainfield, which is in a different county. Alexander further explained that arrests after a first purchase "would serve no purpose" because it would "blow out [their] undercover." The aim of the investigation is to meet with a dealer a couple of times "to get a little bit ...