On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1627.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Koblitz.
Defendant Charles Washington appeals from his conviction after a jury trial on Camden County Indictment No. 09-04-1627 of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1) (count one). The court declared a mistrial on count two, third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and count three, third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, as the jury could not reach a verdict on these counts. Both counts were subsequently dismissed by the State at sentencing. Counts four and five, charging third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), and third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, were dismissed by the State prior to trial. Both co-defendants charged in the indictment with defendant entered into plea agreements that required them to plead guilty only to count one, the only count for which defendant was ultimately sentenced. Defendant was sentenced to five years in prison with a two-year period of parole ineligibility as well as the required fines and penalties and was ordered to provide a DNA sample and surrender his driver's license for one year. Defendant raises various trial errors on appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The police executed a search warrant on defendant's residence on September 3, 2008, at approximately 6:00 p.m. Defendant and his two roommates, co-defendants Leighann M. Henry and William L. Byrnes, Jr., were present when the police arrived with a K-9 unit and a SWAT team. The police found eight bags of heroin in the living room closet. Eighty-four bags of heroin packaged in six bundles were found on a computer desk, and a single bag of heroin was found inside a change purse in the upstairs middle bedroom. Defendant and his co-defendants were arrested, and $166 was found in defendant's possession.
Defendant's two co-defendants testified at trial. Henry testified that she rented the upstairs middle bedroom where she stayed with her boyfriend, Byrnes. She said defendant lived in a room in the basement. She testified that she purchased two bags of heroin from defendant for $20 on the day of the arrest. She said she and Byrnes shared one bag and saved the other in the change purse where it was later found by the police. She testified that she saw the owners of the home give defendant drugs to sell and observed people "coming and going," buying drugs from defendant. The owners' three young sons, aged eighteen, nineteen and twenty, stayed in the front bedroom.
Byrnes testified to substantially the same facts related by Henry, although he indicated that he was the one to buy two bags of heroin from defendant and share it with Henry. He said he had been buying drugs from this residence for approximately one year. He indicated the owners of the residence were Curtis and Diane Barnes. On cross-examination, he said that although defendant kept a bed and his clothes in the basement, he "always stayed upstairs in the chair right by the front door." Byrnes indicated that his plea agreement required him to testify at defendant's trial.
Investigator Michael Sutley of the Camden County Prosecutor's Office testified as an expert in drug distribution that drugs are frequently sold from homes and that a quantity of eighty bags of heroin would not be for personal use, as the typical drug user would not buy more than two to four bags for personal use.
Defendant did not testify or present any witnesses on his behalf.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE ISSUANCE AND EXECUTION OF A SEARCH WARRANT FOR MR. WASHINGTON'S PURPORTED RESIDENCE WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY ALLOWING THE STATE TO ELICIT TESTIMONY CONCERNING THE ACTIONS OF THE GRAND JURY (NOT RAISED BELOW)
THE PROSECUTOR ENGAGED IN PROSECUTORIAL MISCONDUCT WHEN SHE SUGGESTED THAT STIPULATED FACTS HAD TO BE ACCEPTED BY THE JURY (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN RULING MR. WASHINGTON'S REMOTE CRIMINAL CONVICTIONS ADMISSIBLE THEREBY PREJUDICING HIS RIGHT TO A FAIR TRIAL POINT V
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL POINT VI
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VII
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER ...