On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Carchman and Baxter.
Defendant Anthony Bell appeals from his August 15, 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 third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and 2C:35-5(b)(3) (count three). After merging counts and one and three with count two, the judge sentenced defendant to a four-year term of imprisonment. On appeal, defendant raises the following claims:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO DISCLOSE THE FACT THAT A POLICE EYEWITNESS NEVER LOST SIGHT OF THE DEFENDANT BETWEEN THE TIME OF THE DRUG SALE AND THE TIME OF THE ARREST, THEREBY DEMOLISHING THE DEFENDANT'S MISIDENTIFICATION DEFENSE.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (NOT RAISED BELOW)
III. THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S RULING BARRING THE DEFENSE FROM IMPEACHING THE POLICE ON THE BASIS OF THEIR FAILURE TO ADHERE TO PROPER IDENTIFICATION PROCEDURES.
IV. THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
On November 1, 2006 at approximately 9:30 p.m., Detectives Robert Bernard, Gami Cruz and Paul Shadinger, each with a minimum of thirteen years experience in law enforcement, were conducting an undercover narcotics surveillance operation in the City of Vineland when they were approached by a man on a bicycle. The man, later identified as defendant, asked Bernard if he was "straight," which the detective explained is "a street term" that refers to an individual seeking to purchase CDS. After answering in the affirmative, Bernard told defendant he wanted to purchase $20 worth of crack cocaine.
Defendant then rode approximately 100 yards down the street, which was well lit, toward a vacant building, where he met with two other individuals, and returned to the detectives a few minutes later. Between the time defendant rode away and the time he returned, Bernard never lost sight of him. When defendant returned, he was accompanied by a Hispanic male, later identified as Nelson Perez. Cruz testified that he had known Perez "since [he] was a baby," and notified Bernard accordingly, so that when Perez and defendant approached, Bernard adjusted his position to block Perez's view of Cruz.
After a brief conversation, Bernard handed Perez $20. Perez signaled to defendant, who proceeded to place a quantity of crack cocaine on the hood of the unmarked police vehicle. Perez and defendant then left. During the transaction, defendant was no more than ten feet from the three detectives, who had an unobstructed view of him.
After completing the purchase of CDS, Bernard returned to police headquarters, leaving Cruz and Shadinger behind. Shadinger called dispatch and requested that a uniformed officer be sent to their location. After a few minutes, Officer David Serlick, a uniformed bicycle officer, arrived on the scene. Cruz testified that from the time Detective Bernard left and Patrolman Serlick arrived, he, Cruz, was "keeping constant visual eye contact on the defendant," adding that there was no one in the vicinity who was dressed in a manner similar to defendant. By the time Serlick arrived, Perez had left the area, but defendant had not.
Cruz and Shadinger described defendant and pointed out his current location, instructing Serlick to approach defendant to try to ascertain defendant's identity. While speaking with Serlick, both Cruz and Shadinger "pulled back a little bit" to prevent defendant from seeing them talking to a uniformed police officer; Cruz testified that he could still see "a little bit" of defendant. Cruz explained that the conversation between himself, Shadinger and Serlick lasted no more than thirty seconds. Cruz and Shadinger watched ...