On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-02-0124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
Tried in absentia by a jury, defendant Anthony Harris was convicted of third-degree distribution of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7 (count two); third-degree distribution of crack cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count eight); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count nine); third-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5a(1), -5b(3) (count ten); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count eleven). After appropriate mergers, defendant was sentenced to an aggregate eight-year term with three years of parole ineligibility.*fn1 Defendant appeals, and we affirm.
According to the State's proofs, in late April 2007, Beverly Police received several tips that drug transactions were occurring on Third Street, between Broad and Laurel Streets, in the township. As a result, officers from the department teamed up with members of the State Police Street Gang Unit to conduct a "sneak and peek" street operation. A "sneak and peek" operation involves undercover officers surreptitiously surrounding a drug trafficking area in an attempt to observe drug exchanges. Once targets are identified, a "sneak and peek" team typically remains to observe several more transactions in an attempt to identify as many of the accused dealers as possible.
At approximately 3:00 p.m. on May 2, 2007, the investigation team assembled in Beverly, led by State Police Detectives Keith Lawyer and Edward Kits, and Beverly Police Officer Steven Meyers. Detective Lawyer and Officer Meyers were assigned one location and Detective Kitts, another. Other officers maintained a perimeter around the area. At around 3:35 p.m., the team observed two black males, later identified as Steven Fisher and Aaron Johnson, standing at the corner of Third and Broad Streets. Five to ten minutes later, a white female approached Fisher with cash in hand. The two had a quick conversation and Fisher turned around, facing away from the female but towards the undercover officers, and pulled a small plastic bag with green items from his waistband. Thereafter, the female exchanged money for the bag and Fisher walked back to his original location. Detective Lawyer had a clear view of this transaction and believed, based on his experience, that he witnessed a narcotics transaction.
Approximately ten minutes later, Detective Kitts radioed that he saw Johnson flag down a grey minivan that was traveling slowly north on Broad Street. Johnson approached the vehicle's driver, a black female, and, after a short conversation, pointed toward Fisher's location at the corner of Third and Laurel Streets. The team observed Fisher enter the passenger side of the minivan, after which the vehicle drove off and looped around the block. At the end of their loop, Fisher exited the vehicle with cash in hand and returned to the corner of Third and Laurel.
Ten minutes later, Johnson, who was standing at the corner of Broadway and Third, walked over to the corner of Third and Laurel to meet up with Fisher. Thereafter, defendant arrived and was standing at the corner of Third and Broad, which was a block away from where Johnson and Fisher were standing. Shortly thereafter, a silver Hyundai, driven by a black female later identified as Karolyn Goodman, was driving very slowly southbound on Broad Street. Defendant walked down Third Street, passing Detective Lawyer's and Officer Meyers's surveillance point, toward the vehicle, motioned the vehicle over and had a conversation with Goodman. Defendant then walked toward the corner of Third and Laurel and met up with Fisher and Johnson. Goodman turned her vehicle around and headed toward Fisher, Johnson, and defendant. Thereafter, Fisher approached the vehicle and, after a brief conversation with Goodman, opened the passenger door and lifted the seat up, as if reaching for something in the back. Fisher then reached into his waistband and exchanged with the driver an object, later identified as crack cocaine, for cash, which he held in his hand as he exited the vehicle. Fisher returned to the corner, and Goodman drove away.
The investigation team ordered Goodman's arrest shortly after she left the scene and was away from where defendant and the others could view her. Goodman was eventually arrested a few minutes later as she was pulling up to her house. The arresting officer, Detective Brian Smith of the New Jersey State Police, observed a green bag in Goodman's mouth and ordered her to spit it out. A lab analysis revealed that the bag contained crack cocaine.
About eight minutes after Goodman's departure and some forty minutes
since the team first arrived at the scene, Fisher, Johnson, and
defendant walked down Third Street, past the location of Detective
Lawyer and Officer Kitts, toward the corner of Third and Broad.
Thereafter, another individual, later identified as John Myers,
approached the group and flashed a peace sign. Myers passed the group
and crossed Broad Street
to wait at the northwest corner of Broad and Third. While Myers was
walking away, Fisher reached into his waist band and removed another
bag of crack cocaine, while defendant and Johnson looked around for
police. Thereafter, Fisher, Johnson, and defendant walked toward
Myers, where Fisher and Myers engaged in a hand-to-hand transaction,
while defendant and Johnson remained on either side of them. After the
exchange was completed, Fisher, Johnson, and defendant returned to the
corner of Broad and
Third, while Myers walked toward a building on
310 Broad Street, picked up a green cigarette box from the ground, and
put a bag into the cigarette box, which he then placed under the steps
of 310 Broad. A later search of the cigarette box uncovered thirteen
bags of crack cocaine. Fisher, Johnson, defendant and Myers were
arrested. No drugs or cash were recovered from defendant.
On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL JUDGE MISAPPLIED THE LAW IN FAILING TO HOLD A HEARING REGARDING THE ADMISSIBILITY OF SURVEILLANCE LOCATION EVIDENCE AS THE LACK OF OBSERVATIONS WARRANTED THE ADMISSIBILITY OF SURVEILLANCE LOCATIONS EVIDENCE.
II. THE TRIAL JUDGE MISAPPLIED THE LAW BY DENYING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT, NOT PERMITTING DEFENDANT TO RETAIN NEW COUNSEL AND HOLDING THE TRIAL WITH THE DEFENDANT IN ABSENTIA.
III. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO FILE A MOTION FOR A NEW TRIAL PRIOR TO ...