On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-0169.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Following a jury trial, defendant Guilio Mesadieu was convicted of various drug possession and distribution charges based on the State's evidence that police officers observed him engaged in hand-to-hand sales of controlled dangerous substances. Defendant appeals his conviction and the sentence imposed by the trial court, arguing:
THE MOTION COURT ERRED IN DENYING MR. MESADIEU'S SUPPRESSION MOTION BECAUSE POLICE LACKED PROBABLE CAUSE TO ARREST MR. MESADIEU.
THE MOTION COURT ERRED IN RULING THAT THE DEFENSE WAS NOT ENTITLED TO DISCOVER VITAL INFORMATION CONCERNING THE SURVEILLANCE POINT AND IN PRECLUDING THE DEFENSE FROM CROSS-EXAMINING THE STATE'S WITNESS AS TO SAME.
THE TRIAL COURT ERRED IN ALLOWING EXPERT TESTIMONY THAT WAS NOT NECESSARY OR HELPFUL TO THE JURY AND WAS UNDULY PREJUDICIAL TO MR. MESADIEU.
THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF TESTIMONY WHICH CREATED THE INFERENCE THAT MR. MESADIEU HAD PRIOR CRIMINAL CONTACT WITH THE POLICE (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION [OF] TESTIMONY THAT OFFICER DEABREU'S DUTIES WERE TO RESPOND TO NARCOTICS COMPLAINTS (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL BASED ON THE PROSECUTOR'S IMPROPER REFERENCE TO THE FACT THAT MR. MESADIEU WAS REPRESENTED BY THE OFFICE OF THE PUBLIC DEFENDER.
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON CROSS-RACIAL IDENTIFICATION (NOT RAISED BELOW).
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
We have reviewed and considered the arguments presented by the parties in light of the record and applicable law and we affirm.
These facts are taken from the trial record. On November 29, 2006 at approximately 6 p.m., Elizabeth Police Officers Helder Deabreu and Roger Alves were conducting covert surveillance at the corner of Salem Avenue where it meets Pingry Place (the intersection). From their undisclosed location one-hundred yards from the intersection, the officers, who were dressed in plain clothes, used binoculars to enhance visualization, which was also aided by clear weather conditions, existing daylight, and illumination from fixtures on surrounding businesses and parks.
When Officer Deabreu commenced surveillance, he observed two men standing on the street at the intersection who later were identified as defendant and Dwayne Steide.*fn1 The two were approached by a third unidentified male, who handed defendant money. Defendant then walked twenty feet to the front driver's side tire of a grey SUV parked on Pingry Place and retrieved a small, light brown paper bag from which he took a small, clear object. Defendant returned the bag to the ground next to the driver's side tire, walked back to the intersection where the unidentified male and Steide remained, and handed the unidentified male the small, clear object. The unidentified male walked away and defendant and Steide remained at the intersection.
A few minutes later, the officers observed a second unidentified male approach the two at the intersection and hand defendant money. Defendant then walked back toward the same grey SUV, picked up the light brown paper bag, removed a small object, returned the bag to the ground and walked back to the intersection, where the second unidentified male and Steide were standing. Defendant handed the second unidentified male the small object, who accepted it and left the area.
Next, defendant and Steide were approached by a "younger male" who engaged the men in conversation and left. Defendant and Steide "crossed Pingry Place, went to the rear of the laundromat that's at the corner of Pingry and Salem, and [defendant] walked down Pingry to the grey SUV." Upon reaching the SUV, defendant "picked up the light-colored bag and crossed the street from Pingry to the rear lot of the laundromat" where he got into the backseat of a green Ford automobile with Steide at the wheel.
Officer Deabreu called for assistance. Four officers in two police cars arrived on the scene almost immediately and conducted a motor vehicle stop. Officer Brian Turner approached the vehicle driven by Steide. He saw defendant sitting in the backseat holding a brown paper bag. As Officer Turner got closer, defendant placed the bag onto his lap and attempted to cover it with a magazine. He ordered the two men to exit from the vehicle. As defendant stepped out of the Ford, the brown paper bag fell to the ground at his feet, opening to reveal eleven "smaller little plastic bags full of a white powdery substance," determined to be cocaine. Officer Deabreu identified the bag as the same as the one he watched defendant retrieve from under the SUV.
Defendant and Steide were placed under arrest. The search incident to arrest recovered $224 from defendant, made up of seven $20 bills, five $10 bills, five $5 bills, and nine $1 bills.
On March 1, 2007, a Union County grand jury issued Indictment No-07-03-0169-I charging defendant with the third-degree offenses of possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and the second-degree offense of possession of cocaine with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).
During the trial, which commenced on May 20, 2008, Officers Deabreu and Turner testified. Over defendant's objection, the State presented expert testimony from Magaly Meoqui, a detective for the Union County Prosecutor's Office, who discussed the details of police narcotics surveillance and street drug distribution.
Three defense witnesses testified. Scotty Abelard stated that on November 29, 2006, starting at between 4 p.m. and 5 p.m., defendant was in his barbershop, located about one-half block from the intersection, for about two hours. Also, Rosaberthe Mesadieu, defendant's sister, explained she had given her brother $200 on the afternoon of November 29, 2006, to go shopping for his upcoming twenty-fifth birthday. Finally, Edward Addison, a defense investigation expert, measured the distances between the street lights leading up to the intersection to challenge the officer's assurances of clear visibility. The jury found defendant guilty of all counts.
On August 15, 2008, the trial judge denied defendant's motion for a new trial, concluding the jury's verdict was not against the weight of the evidence, and granted the State's motion to impose an extended term sentence. After merging counts one and two into count three, the court sentenced defendant to seven years imprisonment on count three, with a forty-two month period of parole ineligibility and a concurrent seven year term on count four. The court also imposed the required fines and penalties. Defendant filed a timely appeal.
Defendant raises various challenges to the court's denial of pre-trial motions, evidentiary admissions, jury instructions and the denial of the request for a mistrial. He generally challenges the sufficiency of the evidence and argues the cumulative errors warrant a new trial. Finally, defendant attacks his sentence as excessive. In our review we will combine related issues.
Prior to trial, a judge other than the trial judge conducted a suppression hearing denying defendant's challenge that the police lacked probable cause for defendant's arrest. The motion judge determined the seizure was lawful because it was incident to arrest and the drugs were in plain ...