On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-00888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Cuff, Lihotz and Waugh.
Defendant Iken O. Bailey appeals from a January 29, 2010 final judgment of conviction entered following a jury trial on several charges of possession and distribution of a controlled dangerous substance (CDS). On appeal, defendant argues:
IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL. POINT II
IT WAS ERROR TO ADMIT THE CDS INTO EVIDENCE BECAUSE IT WAS IRRELEVANT, NOT PROBATIVE IN THE ABSENCE OF ANY LINK TO DEFENDANT AND HIGHLY PREJUDICIAL [NOT RAISED BELOW].
IT WAS ERROR NOT TO HAVE GRANTED A MISTRIAL AFTER A SELECTED JUROR MADE A PREJUDICIAL REMARK OVERHEARD BY THE OTHER MEMBERS OF THE PANEL.
DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
THE JURY'S VERDICT SHOULD HAVE BEEN SET ASIDE WHEN ONE JUROR UPON POLLING SAID SHE DISAGREED WITH THE VERDICT.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
Following our review of the arguments presented, in light of the record and the applicable law, we affirm.
The State presented these facts at trial. On December 22, 2008, Newark Police Detectives Jeffrey Bouie and Mark Garrett were on a routine patrol with Sergeant William Connolly near Brookdale Avenue and Abinger Place in Newark, a "place known for narcotics activity." As the officers approached the intersection, they observed defendant and co-defendant Murray Gillian standing on the corner, outside a bodega. When the two spotted the patrol, they quickly entered the store; then, as the officers drove away from the area, defendant and Gillian emerged from the store and resumed standing outside, notwithstanding the "frigid" twenty degree weather.
The officers parked their patrol car, circled back, and Detective Bouie and Sergeant Connolly set up surveillance on the second floor of a vacant building across the street from the bodega, approximately seventy feet away. From their location inside the building, they observed an unidentified black male approach defendant and Gillian. After a brief conversation between the three men, Gillian crossed the street to an alley, walked to a chain link fence, crouched to reach an object from the bottom of the fence, from which he removed a smaller object. Gillian returned the larger object to its place by the fence, returned to the corner, and gave the small object to defendant, who then handed it to the unidentified man in exchange for "U.S. currency." The unidentified male walked away. Based on his experience and training, Detective Bouie testified he believed he had "witnessed a narcotic transaction."
Approximately two minutes later, a black Honda stopped by the front door of the bodega. Defendant instructed the driver, who was headed westbound on Abinger, to pull up a few feet and he approached the passenger side of the vehicle. Detective Bouie saw defendant hand the occupants a small object in exchange for money. At this point, Detective Bouie and Sergeant Connolly left their surveillance location, met Detective Garrett, who was with the patrol vehicle, and drove toward the bodega. As the officers approached for a second time, defendant and Gillian "ran into the bodega." Detectives Bouie and Garrett entered the store and apprehended defendant and Gillian, placing them under arrest. Sergeant Connolly walked to the chain link fence and recovered the object, which was later determined to contain seventeen decks of heroin and thirty baggies of cocaine.
Defendant and Gillian were charged under Indictment No. 2009-3-00888 with the third-degree charges of conspiracy to manufacture, distribute, or dispense CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (count one); possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count two); distribution or possession of CDS (cocaine), N.J.S.A. 2C:35-5a(1) (count three); conspiracy to manufacture, distribute or dispense CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (count four); possession of CDS (heroin), N.J.S.A. 2C:35-10a(1) (count five); distribution or possession of CDS (heroin), N.J.S.A. 2C:35-5a(1) (count six).
Defendant's pre-trial motion to suppress the narcotics evidence was denied and, following defendant's motion for release of the surveillance location, the State agreed to do so.
The four-day trial against defendant and Gillian commenced on December 3, 2009. Defendant moved for acquittal at the close of the State's case. The court denied the request. Following deliberations, the jury announced it had reached a verdict. However, when the individual jurors were polled, one juror stated she disagreed with the guilty verdict. The court instructed the jury to resume deliberations. The jury returned with a unanimous verdict, convicting defendant of all counts.
The trial judge merged counts one and two into count three and imposed a five-year custodial sentence on count three, with a two-and-one-half year period of parole ineligibility. Similarly, counts four and five were merged with count six and the judge imposed a concurrent five-year custodial sentence on count six, with a two-and-one-half year period of parole ineligibility. The court also imposed the applicable fines and fees and suspended defendant's driver's license. This appeal ensued.
Defendant presents several claims of trial error and challenges his sentence as excessive. We will ...