On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3317.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Defendant Ismael Binbow appeals from his conviction following a jury trial on all charges set forth in a nine-count indictment, which included several offenses of drug possession with intent to distribute, eluding, and resisting arrest. He also appeals from the sentence imposed for the commission of those offenses. Defendant presents these arguments for our consideration on appeal:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE STATE'S FAILURE TO REVEAL THAT LIEUTENANT MINOVICH AND SERGEANT COSTA WERE THE SUBJECT OF AN INVESTIGATION BY THE ESSEX COUNTY PROSECUTOR'S OFFICE INTO WHETHER OR NOT THEY HAD BEATEN A PRISONER TO DEATH IN AN UNRELATED MATTER; ALTERNATIVELY THE TRIAL COURT SHOULD HAVE CONDUCTED AN INQUIRY INTO THE CIRCUMSTANCES OF ANY SUCH INVESTIGATION. POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE STATE ELICITED TESTIMONY FROM DETECTIVE MINOVICH SUGGESTING THAT THE DEFENDANTS HAD PREVIOUSLY BEEN THE SUBJECT OF POLICE INVESTIGATION.
THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO OFFER FACTS NOT IN EVIDENCE IRRELEVANT TO THE ISSUES IN THE TRIAL OF THIS MATTER; TO OFFER ANY OPINION ON THE ULTIMATE ISSUE OF DEFENDANT'S GUILT AND TO BASE HIS OPINION ON FACTS NOT IN EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO EXPLAIN TO THE JURY IN ITS FLIGHT CHARGE THAT IT WAS LIMITED TO OFFENSES WHICH OCCURRED PRIOR TO DEFENDANT'S ALLEGED FLIGHT AND NOT TO THE CHARGES OF ELUDING AND RESISTING ARREST (NOT RAISED BELOW).
DEFENDANT'S SENTENCE IS EXCESSIVE AND THE COURT FAILED TO ARTICULATE ITS REASONS FOR IMPOSING A PAROLE DISQUALIFIER CLOSE TO THE MAXIMUM DEFENDANT WAS EXPOSED TO ON COUNT SIX AND THE MAXIMUM SENTENCE AND PAROLE DISQUALIFIER ON COUNT NINE.
Additionally, in a pro se supplemental submission, defendant reiterates:
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AND THE TRIAL COURT'S REFUSAL TO CONDUCT AN IN-CAMERA INSPECTION OF TESTIFYING OFFICER'S FILES WHERE DEFENDANT ADVANCE[D A] FACTUAL PREDICATE[,] WAS AN ABUSE OF DISCRETION.
THE PREJUDICIAL TESTIMONY OF LT. MINOVICH [DENIED] DEFENDANT A "FAIR TRIAL" AND THE TRIAL COURTS "FAILURE" TO PROVIDE A CURATIVE INSTRUCTION REGARDING SAID TESTIMONY WAS "ERROR."
We have considered each of these contentions in light of the record and the applicable law. We affirm.
I.On June 14, 2007, defendant and co-defendant Ricky Williams were arrested by Lieutenant Neal Minovich, the commander of the Newark Police Department Narcotic Enforcement Team (the team), and Sergeant Costa, another member of the team, who observed the two participate in a hand-to-hand narcotics transaction. At the time of their observation, Lieutenant Minovich and Sergeant Costa were on routine patrol, wearing plain clothes and driving an unmarked white Ford Explorer. They were followed by two plain clothes team members, Officers Kevin Matthew and Jobani Dumangyne,*fn1 who were driving an unmarked blue Ford Crown Victoria. As the officers turned onto West Alpine Street where it intersects with Milford Avenue in Newark, they saw a man, later identified as co-defendant Williams, standing at the driver's side door of a green Chevy Lumina. Defendant, who was observed sitting in the driver's seat of the Lumina, handed a package to Williams of what the officers believed to be a block of heroin. Williams, spotting the officers approaching, handed the package back to defendant through the driver's side window and began walking away from defendant's car.
The officers stopped their vehicles; however, before they exited, defendant put his car in gear and began traveling "at a high rate of speed in reverse[,]" headed the wrong way down Milford Avenue. Sergeant Costa ordered Officer Matthew to arrest Williams while the other officers chased after defendant in their two vehicles.
After losing sight of defendant's vehicle briefly, Lieutenant Minovich spotted Officer Dumangyne in close pursuit of defendant's car through Hayes Circle, using his lights and siren. Traveling in excess of fifty miles per hour, Lieutenant Minovich pursued defendant as he drove onto Clinton Avenue and collided with an oncoming van in an attempt to turn left onto Quitman Street. Defendant jumped from his vehicle holding the package and ran north on Quitman Street. Officer Dumangyne pursued defendant in his vehicle while Lieutenant Minovich chased him on foot. Next, defendant turned around and began running south on Quitman Street toward Lieutenant Minovich. Defendant then threw the package over a chain link fence into a vacant lot. Lieutenant Minovich captured and arrested defendant and Officer Dumangyne retrieved the package.
The discarded package was confirmed to contain 751 glassine envelopes of heroin, including one "sampler pack," which was taped to the outside of the block. The envelopes were bundled in packs of ten, called a "deck," which were then packed into bricks of five decks. Each deck was stamped in red ink with the words "Bad Apple." In total, the block contained fifteen bricks.*fn2 At the time of arrest, defendant possessed $928: one $100 bill, three $50 bills, five $20 bills, thirty-one $10 bills, forty-three $5 bills, one $2 bill, and fifty-one $1 bills; Williams possessed $618: one $20 bill, twenty-six $10 bills, sixty-seven $5 bills, and three $1 bills.
Following trial, the jury convicted defendant of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one)*fn3 ; second-degree possession of more than one-half ounce and less than five ounces of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with the intent to distribute within one-thousand feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within five-hundred feet of a public park, N.J.S.A. 2C:35-7.1 (count four); second-degree distribution of more than one-half ounce and less than five ounces of heroin, N.J.S.A. 2C:35-5(b)(2) (count five); second-degree distribution of heroin within one-thousand feet of school property, N.J.S.A. 2C:35-7 (count six); third-degree d istribution of heroin within five-hundred feet of ...