On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2011 -- Before Judges Ashrafi and Newman.
Defendant David Spencer appeals his conviction by a jury and sentence on all seven counts of an indictment arising from the sale of heroin. We affirm.
The facts were developed at a pretrial suppression hearing and at trial. On August 17, 2005, Paterson Police detective Marvin Sykes was conducting surveillance of a high drug distribution area at Hamilton and Summer Streets. He had information that defendant would be arriving there after 11:00 a.m. from the Triangle Village housing development to deliver heroin to an unknown buyer. Sykes observed a man, later identified as Chad Alston, waiting alone near the street for about fifteen minutes. Defendant arrived driving a minivan with a pit bull dog in the passenger seat. The minivan stopped and Alston got into the back seat. The minivan drove off but stopped again about two blocks away. After three or four minutes at that location, Alston stepped out of the van holding a green towel that Sykes had not seen earlier. The minivan drove off.
Sykes called to a support team of police to stop and question Alston. As Detective Washington Griffin and other police officers approached Alston on the street, items dropped to the ground from the towel Alston was carrying. The police recovered and identified the items as two "bricks" of suspected heroin. At the trial, Sykes described a "brick" as ten bundles, each bundle consisting of five glassine bags of heroin, fastened with rubber bands and wrapped in magazine paper. In total, thepolice recovered 100 glassine bags of suspected heroin from Alston. Laboratory testing at a later time confirmed the contents of one of the glassine bags as .05 grams of heroin, which Sykes testified would sell on the street for ten dollars.
Upon seeing the bricks of heroin on the ground, the police arrested Alston, and Sykes notified other detectives that heroin had been recovered. Detectives then approached defendant after he parked the minivan at Triangle Village. They searched defendant's person and found $2,571 in cash and an empty sandwich bag in his pocket. Defendant was also arrested.
A grand jury returned a seven-count indictment against defendant charging: third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7; second-degree possession of heroin with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and 5b(3); third-degree distribution of heroin in a school zone, N.J.S.A. 2C:35-7; and second-degree distribution of heroin near a public facility, N.J.S.A. 2C:35-7.1. Alston was also named in the first four counts of the same indictment charging possession offenses.
Pretrial, the court denied defendant's motions to suppress evidence recovered at the scene of the arrests, but the court suppressed as irrelevant to the charges other evidence the police had recovered by means of a consent search of a residence. The court also denied defendant's motion to bar opinion testimony at trial by Detective Sykes as an expert in drug dealing activities and practices. Following the court's pretrial rulings, co-defendant Alston pleaded guilty pursuant to a plea agreement that required his cooperation with the prosecution.
Detectives Sykes and Griffin were the only witnesses at defendant's trial. Other evidence was presented through stipulation and documents. The jury convicted defendant of all seven charges of the indictment.
At sentencing, the court merged all counts of the indictment into count seven, charging second-degree distribution of heroin near a public facility. On the merged counts, the court sentenced defendant to nine years in prison with three years to be served before eligibility for parole. The sentence was to run consecutively to a sentence defendant was already serving. Statutorily required money penalties were also imposed.
On appeal, defendant argues:
DETECTIVE SYKES'S EXPERT TESTIMONY PREJUDICED MR. SPENCER AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. POINT II
THE TRIAL COURT ERRED BY REFUSING TO GIVE AN ADVERSE INFERENCE CHARGE AFTER THE STATE FAILED TO CALL CHAD ...