On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0885.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Following a bench trial, defendant Keshawn R. Tucker was found guilty of possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count two); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count three); and possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count five). The trial judge merged counts two and three with count five and sentenced defendant to a five-year term of imprisonment. The appropriate fees, fines, assessments, penalties, and driver's license suspension were also imposed.
On November 23, 2007, defendant was apprehended while selling drugs in a public housing complex in Newark. On that day, Officers Celso Vinueza and Luis Rivera of the Newark Police Department had established a mobile surveillance on the street near the mailboxes in the Riverside Villa public housing complex. At about 12:00 p.m., Officer Vinueza saw defendant with another man near the mailbox structure. Vinueza saw a woman approach the second man and hand him money. The unidentified man directed the woman to defendant, who handed an object to the woman. Believing he had witnessed a narcotics transaction, Vinueza notified the two-officer take-down unit. The take-down unit arrived, consisting of Officer Nancy Caballero and another officer, identified themselves, and defendant and the man with him began to run.
The officers apprehended defendant, who fell to the ground. Officer Caballero handcuffed defendant, placed him under arrest, and searched defendant's right coat pocket. This is the pocket from which Officer Vinueza observed defendant take the object he handed to the woman. Officer Vinueza found and seized fifty envelopes of heroin wrapped in five separate bundles in magazine paper and rubber bands, known as a brick.
Defendant testified he realized there was drug dealing occurring when he approached the mail boxes, but he was not involved. He was at the Riverside Villa complex on November 23, 2007, to visit his cousin for Thanksgiving. He testified he saw "a couple of dudes out there. I know -- and I know they was out there doin' something wrong."
According to defendant, when the police came, he did not run from them, but turned and walked away when he heard some people yell that "the police was comin' through the gate." He explained:
I turned around and walked back to my cousin['s] house because there this -- I don't want them to try to blame it on me, but that's what they've been doin' [sic] out there, I see the two police or the lady and the um, the other police officer comin' [sic] out the side of the gate.
Defendant further testified that the police told him to stop, and asked him why he was running. He testified that he said "I'm not runnin' [sic]," and then he was handcuffed and searched. Defendant denied possessing drugs.
On appeal, defendant raises the following arguments:
I. TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF EVIDENCE DENIED DEFENDANT ...