On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Graves.
Following a jury trial, defendant Eman Hassenbey was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); second-degree possession of cocaine and heroin with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1); and second-degree distribution of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1.*fn1 After appropriate mergers, the judge sentenced defendant to an aggregate sentence of eight-years imprisonment with a three-year period of parole ineligibility. Defendant appeals, and we affirm.
These are the facts adduced at trial. On the afternoon of September 15, 2007, Detective Daniel Statin of the Plainfield Police Department was conducting surveillance at Elmwood Gardens, a public housing complex. At approximately 2:00 p.m., he observed a female, later identified as Monique Harris, approaching various individuals in the area. Statin also saw defendant sitting on a nearby bench. Statin's reconnaissance revealed a pattern: Harris would briefly speak with different individuals, then remove and distribute a small item secreted within her bra, collecting currency in exchange. The purchaser would depart and Harris would hand defendant her receipts.
Statin suspected that Harris was dealing drugs for defendant, and observed the duo depart in a Mazda. Statin advised a back-up officer, Detective Michael Black, to intercept the vehicle. Black stopped the Mazda and arrested both occupants. Harris turned over "a quantity of drugs" and the police recovered $14 from Harris and two stacks of money from defendant totaling $420.
At a separate hearing, Harris pled guilty and indicated that she was selling drugs with defendant. Later, at defendant's trial, Harris confirmed that she was dealing drugs, and had pled guilty to possession and distribution of controlled substances. However, Harris also recanted, indicating that she had lied under oath at her plea hearing, and defendant was not involved.
At the close of trial, several exhibits were admitted as evidence, including a lab report, which detailed the substances recovered when defendant was arrested. The report was admitted into evidence, and the jurors were given the report to aid them in their deliberations. Apparently unbeknownst to the parties and the court, the report was double-sided, and the reverse side indicated that several new, unused plastic baggies were also found on defendant's person.
After commencing their deliberations, the jury returned with the following question: "Numerous new and unused plastic bags. Can we consider this in our deliberations? How come not . . . presented or discussed as evidence?" Recognizing the error, the trial judge conferred with counsel. Defense counsel suggested that a corrected version of the exhibit could be substituted. Both the prosecutor and judge agreed, and the exhibit was substituted with the following instructions:
That additional item that was attached to the lab report should not have been included because there was no testimony about it and therefore, you cannot consider that aspect of it. We're going to resubmit the lab report to you in the way it should have been. So you will only consider what is currently on the lab report. And the lab report is submitted to you as an aid to assist you in making your determination as to whether the items that were marked as S-5 are cocaine or heroin.
At sentencing, defendant moved for a new trial based upon the substitution. The trial court denied the motion. This appeal followed.
On appeal, defendant raises the ...