On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3465.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges A.A. Rodriguez and Grall.
Defendant Terrell Archer was tried to a jury with co-defendant Arlene Hunt on a five-count indictment charging conspiracy to commit and commission of crimes involving possession of a controlled dangerous substance (CDS), heroin, and possession of CDS with intent to distribute. The jurors found defendant guilty of second-degree conspiracy to possess and possess with intent to distribute CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-10a(1); third-degree possession, N.J.S.A. 2C:35-10; third-degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); third-degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
The judge merged four of defendant's convictions with his conviction for possession with intent to distribute within 500 feet of a public housing facility and sentenced him to an eight-year term subject to a four-year term of mandatory parole ineligibility. In addition, the judge imposed the mandatory fines, penalties, assessments and fees and a driver's license suspension. On the same day, the judge revoked defendant's probationary sentence on a separate indictment and sentenced him to two three-year terms for third-degree possession of CDS concurrent with one another and his sentence for the second-degree crime.
On July 13, 2006, Detectives Richard Weber and Philip Turzani of the Newark Police Department, along with two back-up officers, Jimmy McCoy and Javier Rivera, went to the Pennington Court Housing Complex in Newark. Pennington Court is a public housing complex that is within 1000 feet of a school.
The detectives and officers were not in uniform and their badges were concealed. When the detectives entered the courtyard, McCoy and Rivera "shadowed" them, remaining about fifteen to twenty feet behind. Defendant was in the courtyard and waived the detectives toward him. In response, they approached defendant. Defendant said he had "diesel," which the detectives understood to mean heroin. Turzani said, "Let me get two."
Defendant took the detectives inside a building and to the door of an apartment on the first landing. Defendant knocked on the door, and co-defendant Hunt answered and peeked outside. Defendant told Hunt to "hook them up." Hunt had glassine bags of heroine in her hand and she recognized the detectives as police officers. She said so and attempted to shut the door. Detective Turzani rushed after Hunt, tackled her, placed her under arrest and seized twenty-seven glassine bags bound with rubber bands. As McCoy and Rivera were entering the building, defendant was fleeing from it. The detectives signaled to "lock him up" or said "grab him," and McCoy and Rivera did. Defendant had about $200 in bills of small denominations on his person at the time of his arrest.
Defendant raises two issues on appeal:
I. THE TRIAL COURT VIOLATED MR. ARCHER'S RIGHT TO CONFRONTATION BY PREVENTING DEFENSE COUNSEL FROM EFFECTIVELY CROSS-EXAMINING WITNESSES. (U.S. Const. amends. IV AND XIV; N.J. Const. (1947), art. I, ¶ 10).
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND IMPERMISSIBLY DOUBLE COUNTING.
The importance of cross-examination in criminal trials has been discussed with such eloquence and is so well understood that no elaboration is required here. See State v. Castagna, 187 N.J. 293, 309 (2006). With respect to the issue raised on this appeal, it suffices to reiterate that "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974).
Despite the importance of the right asserted by defendant, he overstates the limitations the judge placed on defense counsel's questioning of the police officers who testified against him. Defendant's objections center on the judge's view of the permissibility of defense counsel's questions about matters omitted from the police report prepared by Detective Weber. The judge ruled that questions about facts disclosed in testimony and not included in the report were improper. He reasoned that no one could expect a police report to include ...