On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-11-2616.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011 -
Before Judges Carchman and Baxter.
Defendant Charles Parham appeals from his October 17, 2008 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree distribution of CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). After merging count one with counts two and three, the judge imposed concurrent six-year terms of imprisonment, subject to a three-year term of parole ineligibility, on counts two and three.
On appeal, defendant raises the following claims:
I. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE BASED UPON THE UNLAWFUL PAT-DOWN OF SANTIAGO.
II. BECAUSE THE FACT THAT THE INCIDENT TOOK PLACE IN A "HIGH NARCOTICS AREA" WAS IRRELEVANT TO ANY ISSUES IN THE CASE, AS WELL AS HIGHLY PREJUDICIAL TO DEFENDANT, THE COURT'S RULING PERMITTING ITS REPEATED INTRODUCTION BY THE STATE REQUIRES REVERSAL.
On July 22, 2007, at approximately 11:00 p.m., two Freehold police officers, Christopher Colaner and Christopher Otlowski, were patrolling in an unmarked police vehicle in the area of Avenue A and Avenue C, an area known to both of them as a location where illegal narcotic sales were frequent. Both officers were highly-experienced in the detection of narcotics transactions, as Colaner had fifteen years of experience with the Freehold Police Department, and Otlowski had eleven.
Near the intersection of Avenue A and Avenue C, they observed two males, Helacio Tolentino and Fortino Santiago, approach defendant, who was standing on the sidewalk in front of a residence on Avenue A. From his surveillance position inside the unmarked vehicle, Officer Colaner observed Tolentino hand defendant what appeared to be paper currency and, in exchange, defendant dropped a small unknown item into Santiago's open hand. Based upon his training and experience, Officer Colaner believed he had witnessed a drug transaction.
While walking away from defendant, Tolentino and Santiago passed the officers' unmarked vehicle. Officer Colaner observed Santiago "open his hand and hold up a small clear plastic bag containing a white substance, . . . as if he was visually inspecting it." Seconds later, Officers Colaner and Otlowski exited their vehicle and approached the two men.
After identifying himself as a police officer, Colaner directed the two to stop and show their hands. Santiago remained in a defensive position with his arms crossed, shaking his head and stating that he did not understand English. Because of Santiago's failure to comply with Officer Colaner's order, Colaner approached Santiago and "pushed on [Santiago's] arms," at which time Santiago complied and dropped his hands to his side. While doing so, Santiago dropped a clear plastic bag to the ...