On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Fasciale.
Following a jury trial, defendant was convicted of second-degree conspiracy to violate narcotics law, N.J.S.A. 2C:5-2 (count one); two counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts two and five); third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5a(1), -5b(3) (count six); second-degree possession of CDS with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1a (count seven); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1), b(3) (count eight); and second-degree distribution of CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count nine).*fn1
The trial judge sentenced defendant to an eight-year term of imprisonment with four years of parole ineligibility on count one, to a concurrent four years on counts two, five, six and eight, and to a concurrent eight years with four years of parole ineligibility on counts seven and nine. The judge also imposed the appropriate assessments, penalties, and fees.
On appeal, defendant raises the following contentions:
POINT I THE TRIAL COURT ERRED IN FAILING TO TAKE ANY ACTION TO REMEDY THE PREJUDICE TO THE DEFENDANT WHICH RESULTED FROM THE STATE'S FAILURE TO TIMELY PROVIDE DISCOVERY TO THE DEFENSE POINTIITHE TRIAL COURT ERRED IN DENYING TRIAL COUNSEL'S REQUEST FOR A BRIEF ADJOURNMENT OF THE COMMENCEMENT OF THE TRIAL POINT IIITHE TRIAL COURT ERRED BY PERMITTING THE STATE'S POLICE WITNESS TO TESTIFY THAT HE WAS CONDUCTING SURVEILLANCE PURSUANT TO A TIP POINT IVTHE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTALPOINT VPROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED MR. WARREN OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VITHE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE ON A JURY PANEL THAT HAD REACHED AN ADVANCED STAGE OF DELIBERATIONS (NOT RAISED BELOW) POINT VIICUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VIIITHE TRIAL COURT ERRED BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE (NOT RAISED BELOW)
I.We derive the following facts from the evidence presented at trial. According to Officer/Detective Freddie Townes of the City of East Orange Police Department,*fn2 the police received a "tip" or complaint from citizens about narcotics activity occurring at a parking lot located at 17th Street and Fourth Avenue in East Orange, which was within 500 feet of a public library. On January 17, 2006, at approximately 2:00 p.m., Officer Townes conducted a narcotics surveillance in a parked, unmarked police vehicle across the street from the parking lot. Officer Townes saw four or five African-American males in front of the parking lot, and Al-Amin Means talking to defendant. A red Saturn traveling on Fourth Avenue turned onto 17th Street and stopped at the entrance to the parking lot. Means approached the passenger side of the vehicle and engaged in a brief conversation with the passenger, later identified as Stacey Zakrzewski. Zakrzewski handed paper currency to Means, who then walked over to defendant and handed defendant the money. Defendant placed the money in his pocket, looked up and down 17th Street, and then removed a clear plastic bag containing white objects from his right jacket pocket.
Defendant took the items from the bag and gave them to Means. Means then gave the items to Zakrzewski, who then placed them in her own plastic bag.
Believing he had just witnessed a narcotics transaction, Officer Townes radioed a description of the suspects, the car and license plate to backup units. When backup units arrived, the officer saw defendant take the plastic bag from his pocket and place it inside a hole in the top of a fence pole with a missing fence cap. The officer radioed the backup detectives to retrieve the plastic bag from the fence. In the presence of Detective Kevin Green, Detective Jackson recovered the plastic bag from the hole. The police also recovered ten glassine envelopes containing heroin stamped "King Kong," "Baseball," "Anaconda" and "Fire" from Zakrzewski. The same stamps appeared on the narcotics in the plastic bag Detective Jackson recovered from the fence. The police also found $388 on Means and $267 on defendant.
II.Defendant's counsel requested a copy of the State's narcotics laboratory report more than three months prior to the start of trial. The State, however, did not produce the report until a week before trial, claiming that was when the State received the report. Defendant moved to bar the State's expert chemist from authenticating the narcotics based on the State's failure to timely serve the report. Defendant also moved to bar the admission of the plastic bag containing the narcotics into evidence because defense counsel did not receive the evidence until the morning of the second day of trial.*fn3
The judge denied the motion to bar the expert from testifying, concluding that given defense counsel's ability and expertise, and his ability to cross-examine the expert, defendant was not prejudiced by the State's failure to timely provide the report. The judge did not rule on defendant's motion to bar the plastic bag, but admitted the narcotics into evidence over defense counsel's objection. Defendant contends in Point I that the judge should have granted his motions or, alternatively, granted a brief continuance to permit defense counsel to review the report and examine the drugs.
Rule 3:13-3(b) requires the prosecutor to make discovery available within fourteen days of the return or unsealing of the indictment. Rule 3:13-3(c)(1) and (5) require the prosecutor to permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):(1) books, tangible objects, papers, or documents obtained from or belonging to the defendant;. . . .(5) books, papers, documents, or copies thereof, or tangible ...