On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-2970.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant Juan Sanes was found guilty after a bench trial of possessing a controlled dangerous substance (CDS), third degree, N.J.S.A. 2C:35-10a(1), count one; doing so with the intent to distribute, third degree, N.J.S.A. 2C:35-5a(1), -5b(3), count two; doing so within 1000 feet of a school, third degree, N.J.S.A. 2C:35-7, count three; conspiracy to distribute CDS, third degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3), count four; and employing a juvenile in a drug distribution scheme, second degree, N.J.S.A. 2C:35-6, count five. After accounting for merger and denying a motion for an extended term as a persistent offender, a different judge sentenced defendant to ten years, with a five-year minimum period of parole ineligibility on the conviction for employing a juvenile, concurrent to a five-year term and a three-year period of parole ineligibility on the school zone offense. We affirm as to counts one through four, and reverse as to count five, employing a juvenile in a drug distribution scheme.
Defendant's conviction arose out of a narcotics surveillance operation on the morning of June 7, 2007 in the 700 block of North 8th Street in Camden, a high crime area within 1,000 feet of an operating elementary school. Camden County Prosecutor's Office Investigators Jeff Dunlap and Randall MacNair were primarily responsible for the operation.
At about 8:00 a.m., MacNair entered an abandoned two-family row-home at 718 North 8th Street and climbed to the second story front window of 716. The city block is bounded on the north by State Street, on the south by Vine Street, on the west by 8th street, and on the east by Raymond Street. The house, situated in the middle of the block on 8th street, is bordered by an alley on the upper side and another alley on the lower side - both running east to west. The upper alley runs through the block, east-west, between 8th and Raymond Streets, and the lower alley also runs east-west from 8th street, but terminates at the rear of a Raymond Street house. Another alley runs north-south from Vine Street to the rear of a State Street house intersecting with the lower and upper alleys.
Once on the second floor of number 716, MacNair unbolted the front window facing 8th Street and lowered so he could see through it and the boards that covered it. MacNair observed J.A., then seventeen years old. He appeared to be an Hispanic male wearing a white hat, black t-shirt, and blue jean shorts loitering on the block. MacNair radioed that information to Dunlap, who had set up surveillance in a dilapidated garage to the rear of an 800-block State Street house. When peering out through gaps in doors, Dunlap could view the center of the block, the rear of number 718 to his right, as well as portions of the two east-west and the north-south alleys.
MacNair saw defendant drive a gray pick-up truck on 8th Street, and park a few houses down from number 718 and on the same side of the street as MacNair. Defendant exited his truck and talked with J.A. for a few minutes. He returned to his truck and left. Although he did not hear the conversation, MacNair told Dunlap that he suspected J.A. and defendant planned to distribute drugs.
Soon thereafter, Dunlap observed defendant park his truck on Vine Street and walk north towards State Street (directly toward the garage) using the north-south alley. As he walked toward Dunlap, defendant was on his cell phone instructing the listener to "come to the back." Defendant was carrying a black bag. The listener was apparently J.A., who almost immediately arrived to meet defendant, who was then near the garage.
Defendant handed the bag to J.A. and J.A. turned to run away. After a few strides, defendant stopped J.A., and J.A. returned the bag to defendant. Defendant gave J.A. one or more items from the bag. Defendant then buried the bag in a hole he dug near a fence line in the center of the block. J.A. placed the items he received under an exposed slab of concrete at the rear of number 718.
MacNair then saw J.A. and defendant emerge from the alley and stand around 8th Street. MacNair saw a white male approach them. J.A. gestured to the white male to enter the upper alley and defendant warned the man to not "come back to the same alleyway you get it in." The white male and J.A. entered the alley approaching Dunlap's location. Defendant remained on 8th Street, serving as a lookout. J.A., joined by the white male, went to the concrete slab and handed the white male an object that was under the slab in exchange for paper money. Dunlap observed the white male depart toward Raymond Street.
MacNair saw J.A. return to 8th Street. MacNair heard defendant "raising his voice" towards J.A. instructing him not to "take the buyers down [the] same alleyway, use different ones. Don't come back the alleyway you . . . went in."
Then, a black male arrived, and Dunlap observed J.A. and the black male engage in a similar transaction. Defendant remained on 8th Street while J.A. escorted the male to the alleyway. The black male departed toward Raymond Street. Dunlop next saw J.A. return to the concrete slab and retrieve the items he placed there and transferred them to the rear of 716 8th Street in a hole near its plywood-boarded rear door.
MacNair and Dunlap testified that they observed two or three more suspected drug transactions in which J.A. engaged the buyers, while defendant remained in the vicinity on the 700 block of 8th Street. Dunlap then ordered defendant's and J.A.'s arrest. Afterwards, Dunlap retrieved the buried black bag, and found sixteen bags of heroin. Nothing was found under the concrete slab, but an additional nine bags of heroin were found near the rear door of 716 8th Street.
The defense presented a diametrically opposed version of events that morning. Defendant, who was on parole, testified that he left his home at approximately 8:15 a.m., shortly after his parole-imposed curfew ended, to pick up his daughter from her mother's house and take her to daycare. While at his daughter's home, her mother asked defendant to pick up her sister and the sister's daughter and drive them to school. They lived in the 700 block of North 8th Street. When he arrived to pick up the children, he parked his pick-up truck on Vine Street and walked to the house. He encountered J.A., whom he described as an acquaintance whom he had not seen in four or five years. They chatted briefly. Defendant waited a short time for the children to come out of the house and at that point he and the children returned to his pick-up truck. As defendant drove to the school, police stopped and arrested him.
Defendant denied that he had possessed the black bag, entered the alley, or was otherwise involved in the possession or distribution of drugs that morning. Defendant insisted that despite his testimony that he previously lived at 710 North 8th Street for many years, he never walked the alleys on the block and only stayed in his backyard.
J.A. admitted that he possessed and sold heroin that morning. He also admitted that he and defendant met that morning, but claimed they only exchanged pleasantries and talked about family. He denied that defendant was his heroin supplier, or was involved in J.A.'s drug-related activities. He denied that the heroin seized by the police and introduced in evidence was the same heroin that J.A. had possessed.
The trial judge conducted a view of the garage and the second floor window where Dunlap and McNair conducted their surveillance. In his decision, he stated he was convinced that Dunlap and McNair were able to see and hear what they claimed at trial. He credited the officers and discredited J.A. and defendant. In short, there was sufficient credible evidence to support the court's finding of guilt, beyond a reasonable doubt, as to: count one, possessing a controlled dangerous substance (CDS), third degree, N.J.S.A. 2C:35-10a(1); count two, doing so with the intent to distribute, third degree, N.J.S.A. 2C:35-5a(1), -5b(3); count three, doing so within 1000 feet of a school, third degree, N.J.S.A. 2C:35-7; and count four, conspiracy to distribute CDS, third degree, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3).
Defendant raises the following points on appeal:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF CDS POSSESSION WITH INTENT TO DISTRIBUTE, THUS, THE VERDICT OF GUILTY WAS AGAINST THE WEIGHT OF THE EVIDENCE.
A. The Testimony Relied On By The Trial Judge Was Vague And Contradictory, Requiring Reversal As A Matter Of Law.
B. The State Failed To Establish That The Defendant Employed J.A., A Juvenile, In A Drug Distribution Scheme.
THE DEFENDANT DID NOT EFFECTIVELY WAIVE HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL (NOT RAISED BELOW).
THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT ...