On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0293.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Carchman and Fisher.
In this appeal, defendant argues, among other things, that he was erroneously convicted of various drug and weapons offenses based on his contentions that: (1) the trial judge failed to give adequate jury instructions regarding identification evidence; and (2) there was insufficient evidence to support, and the judge erroneously instructed the jury about, his alleged unlawful purpose in possessing a weapon. We find no merit in these or defendant's other arguments and affirm.
The record developed during the course of a fifteen-day trial revealed that at approximately 6:30 p.m., on November 29, 2004, Officer Raymond Weber commenced surveillance of an apartment complex at 320 Duncan Avenue, Jersey City, as a result of numerous complaints of drug dealing at that location. Officer Weber parked his surveillance van twenty to twenty-five feet east of the front door of 320 Duncan. Seven other officers acted as perimeter units.
Officer Weber testified about his observations of two individuals standing in front of 320 Duncan. One of these individuals, later identified as defendant, was standing on the top of the front steps, wearing a black jacket and a yellow tee shirt; the other, Raheem Tramel, was standing on the sidewalk, wearing a camouflage jacket and baseball cap.
Officer Weber observed a third individual, Ronald Tadulla, walk toward the premises. Before Tadulla reached the front steps, Tramel walked toward him and they conversed as they walked together toward the front steps of 320 Duncan. When they arrived at the steps, Tramel gestured to defendant, who approached. Tadulla removed money from his pocket and gave it to defendant, who then removed a large, clear sandwich bag from his left coat pocket, and took from the bag some objects, which he handed to Tadulla. Defendant and Tramel returned to where they had previously been standing and Tadulla walked quickly away.
Officer Weber informed the perimeter units that he thought he had observed a narcotics transaction and gave them a description of Tadulla's clothing and the direction in which he was walking. Two officers exited their vehicle and approached Tadulla on foot. Upon observing Tadulla reach into his pocket, one of the officers -- concerned that Tadulla might be reaching for a weapon -- grabbed him. Tadulla resisted, striking one officer and biting another before being arrested. Tadulla was searched and two glassine bags containing heroin were seized.
A few minutes later, Officer Weber watched another drug transaction. This time, a man later identified as Benny Counsel exited a vehicle parked in front of the surveillance van and conversed with Tramel. Tramel then motioned to defendant, who walked down from the steps and approached Counsel. Officer Weber observed as Counsel handed money to defendant, who removed a clear sandwich bag from his coat pocket and took some objects from the bag, which he handed to Counsel, who then re-entered his vehicle and drove away. Officer Weber informed the perimeter units, providing the license plate number and the make and color of the vehicle, as well as a description of Counsel. One of the units activated its lights and sirens and stopped the vehicle; Counsel opened a window, discarded what were referred to in testimony as two "jars" of cocaine and drove away. Officers from one perimeter unit secured the discarded items; officers from another stopped Counsel's vehicle and arrested him.
Following Counsel's arrest, Officer Weber directed the perimeter units to 320 Duncan to apprehend defendant and Tramel, both of whom he described to the other officers. Moments later, at approximately 7:15 p.m., Detective James Wilde and another officer arrived in an unmarked vehicle, saw the two men Officer Weber had described standing in front of 320 Duncan, and exited their vehicle. Seeing the officers, defendant and Tramel ran into the house and shut the door. The officers pursued them into the building and apprehended Tramel.
Officer Joseph Stelze, who had also responded to Officer Weber's radio transmission, arrived at approximately the same time and ran to the rear of the building to "avoid anybody running out the back or up into the stairwells." He was joined by Officer John Traynor. Upon entering the rear of the building, Officer Stelze "collided" with an individual he recognized as fitting the description of defendant provided by Officer Weber. He "put [defendant] in a bear hug and took him to the ground" and, with Officer Traynor's assistance, handcuffed defendant and patted him down, finding a .32 caliber revolver in defendant's right front pants pocket.
Before being searched at police headquarters, defendant told Officer Stelze he was in possession of narcotics; the officer obtained from defendant a clear sandwich bag containing seventeen jars of cocaine and twelve glassine bags of heroin.
Most of the police officers involved in the investigation and apprehension of defendant and Tramel testified, providing detailed versions of the events briefly outlined above. Defendant called witnesses and also testified on his own behalf, asserting that at the times Officer Weber observed the transactions in front of 320 Duncan, defendant was in a nearby bodega purchasing lottery tickets.
The jury found defendant guilty of: two counts of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (counts one and eight); two counts of possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and nine); two counts of possession of CDS with the intent to distribute while within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts three and ten); two counts of possession of CDS with the intent to distribute while within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (counts four and eleven); two counts of dispensing or distributing CDS, N.J.S.A. 2C:35-5a(1) and 35-5b(3) (counts five and twelve); two counts of dispensing or distributing CDS while within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts six and thirteen); two counts of dispensing or distributing CDS while within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (counts seven and fourteen); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count fifteen); one count of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count sixteen); two counts of possession of a firearm while in the course of committing, attempting to commit, or conspiring to commit a CDS offense, N.J.S.A. 2C:39-4.1a (counts seventeen and eighteen); and two counts of conspiracy to distribute CDS, N.J.S.A. 2C:5-2 (counts twenty and twenty-one).
The trial judge found defendant to be a persistent offender and eligible for an extended prison term. For sentencing purposes, the judge merged many of the CDS convictions: counts one, two and three merged with count four; counts five, six and twenty with count seven; counts eight, nine and ten with count eleven; and counts twelve, thirteen and twenty-one with count fourteen. The judge then sentenced defendant to a fifteen-year prison term with a seven-year period of parole ineligibility on count seven, as well as five-year concurrent prison terms on counts four, eleven and fourteen.
On count seventeen -- possession of a firearm while in the course of committing a CDS offense -- the judge imposed a ten-year prison term subject to a five-year period of parole ineligibility; the judge directed that this term run consecutive to the term imposed on count seven. For the other weapons offense, the judge imposed terms, ordered to run concurrently with the term imposed on count seventeen; specifically: a five-year prison term on count fifteen; a ten-year prison term on count sixteen; and a ten-year prison term subject to a five-year period of parole ineligibility on count eighteen. In short, the judge imposed an aggregate prison term of twenty-five years with a twelve-year period of parole ineligibility on all these CDS and weapons convictions.
Defendant appealed, presenting the following arguments for our consideration:
I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF ...