On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-09-1316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 19, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant Darryl Brooks was convicted of several drug offenses. On appeal, he challenges various aspects of his trial, asserting unduly suggestive identification evidence, inappropriate expert testimony, inadmissible evidence of prior crimes, and incorrect jury instructions. He also challenges his sentence as excessive. We affirm the conviction but remand for resentencing.
On September 6, 2007, a Burlington County Grand Jury indicted defendant (2007-09-1316) on charges of third-degree distribution of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count one); third-degree possession of cocaine, a CDS, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of cocaine, a CDS, N.J.S.A. 2C:35-10(a)(1) (count three).
Following a three-day trial, defendant was convicted by a jury of all counts. Defendant was mandatorily extended term eligible as a repeat drug offender, N.J.S.A. 2C:43-6(f), and in March 2009, received an eight-year custodial term with a four-year period of parole ineligibility.*fn1 The court also suspended defendant's driver's license for six months and imposed mandatory fines and penalties.
The following testimony and evidence was presented at trial. Detective Christy Jarvis of the Burlington County Prosecutor's Office Narcotics Task Force testified she met defendant, who introduced himself as "Dante," while working undercover on September 21, 2006. She related the conversation she had with defendant, in which he gave her a telephone number, advised the detective she could reach him, and he would "hook [her] up." Over defendant's objection, the court permitted the detective to testify as to what she understood defendant to have meant by that expression, which was that defendant "would be able to hook [her] up in the future for future CDS purposes[;] [she] could call [defendant] and he would be able to provide [her] with that."
On September 27, 2006, Detective Jarvis placed a call, which was recorded and played for the jury, to the number defendant had provided her, and arranged to purchase drugs from him. At his request, she met him at a CVS store in Mount Laurel. Defendant got into the front seat of the detective's vehicle, where he sold her four bags, .34 grams, of crack cocaine, which he kept in his right shoe, for forty dollars. The interaction was videotaped and shown to the jury. The bags sold to Detective Jarvis were tested to identify the substance they contained, but were not tested for fingerprints or DNA evidence.
Detective Jarvis further testified that about seven minutes after the transaction, Sergeant Scott Wallace, a Maple Shade detective, who was working on her surveillance team that day, showed her one black and white photograph of a man she immediately recognized as "Darryl Brooks . . . the person that had just sold [her] CDS." Sergeant Wallace testified he procured this photograph from an official government database, having known defendant from prior contacts in the community. He also testified he had the opportunity to observe defendant while conducting stationary surveillance approximately 150 feet from Detective Jarvis and defendant during the transaction. After the photo identification, both detectives signed their names, and placed the date and time on the back of the photograph.
Lieutenant Daniel Leon of the Burlington County Prosecutor's Office Narcotics Task Force, who was part of the surveillance team with Sergeant Wallace during defendant's transaction with Detective Jarvis, also testified regarding his observations of defendant on September 21 and 27, 2006. He additionally knew defendant to go by the name "Dante." All three officers identified defendant in court as the man who interacted with Detective Jarvis on September 27, 2006.
Defendant was arrested in January 2007, four months after the transaction. Detective Jarvis testified the delay was common practice for narcotics investigations because of safety concerns for her as an undercover officer and because of the ongoing nature of the undercover operation. Moreover, she and Lieutenant Leon explained that as a result of defendant traveling to the CVS by bicycle, the surveillance team lost him and was unable to follow him upon his departure from the scene.
Defendant did not testify and presented no witnesses on his behalf. Following his conviction, this appeal ensued.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not raised below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED A HIGHLY ...