On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012 -
Before Judges Carchman and Nugent.
A Hudson County grand jury charged defendant Derrick Nelson Gaston with third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35--5a(1) and -5b(3) (count two); and third-degree possession of a CDS within 1000 feet of school property, N.J.S.A. 2C:35--7a (count three). Following his unsuccessful attempt to suppress the drugs seized from him by the arresting officers, defendant proceeded to trial and a jury convicted him of all three offenses.
At sentencing, the court merged defendant's convictions on counts one and two with his conviction on count three, and sentenced defendant to an extended prison term of seven years with forty-two months of parole ineligibility, defendant having been convicted previously of possession of a CDS within 1000 feet of school property. The court also imposed appropriate fines and penalties.
Defendant appeals from the October 2, 2009 judgment of conviction, raising the following points:
THE TRIAL COURT ERRED BY ALLOWING THE POLICE OFFICER WHO CONDUCTED THE SURVEILLANCE AT ISSUE TO TESTIFY THAT HE BELIEVED THAT HE HAD WITNESSED MR. GASTON ENGAGE IN A NARCOTICS TRANSACTION
THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO OPINE ABOUT THE EVIDENCE IN THIS CASE (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN DENYING MR. GASTON'S SUPPRESSION MOTION
PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED MR. GASTON OF A FAIR TRIAL (PARTIALLY RAISED BELOW)
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL ON THE CHARGES OF POSSESSION WITH INTENT TO DISTRIBUTE AND POSSESSION WITH INTENT TO DISTRIBUTE WITHIN 1,000 FEET OF SCHOOL PROPERTY
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A SANDS-BRUNSON HEARING CONCERNING THE ADMISSABILITY OF MR. GASTON'S PRIOR CONVICTION AND FAILED TO ADVISE MR. GASTON THAT SHOULD HE TESTIFY HIS PRIOR CONVICTION WOULD BE ADMISSIBLE AGAINST HIM (NOT RAISED BELOW)
THE JURY'S GUILTY VERDICT ON COUNTS TWO AND THREE OF THE INDICTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. GASTON (NOT RAISED BELOW)
We agree with the trial court that the police did not violate defendant's constitutional rights when they seized heroin while searching him incident to his lawful arrest. We also conclude that neither the alleged trial errors nor the prosecutor's closing remarks deprived defendant of a fair trial or warrant reversing his conviction, which was supported by substantial credible evidence. Lastly, we conclude the trial court did not abuse its sentencing discretion. For those reasons we affirm defendant's conviction and sentence.
The State adduced the following facts at the hearing on defendant's suppression motion. On the morning of April 3, 2008, at approximately eight o'clock, Jersey City police officers Eddie Nieves and Philip Shenagle were working a "plainclothes" detail and driving an unmarked car when they responded to a call about a male selling drugs at the intersection of Bidwell Avenue and Martin Luther King Drive. Nieves drove to the intersection where he and his partner parked and exited the vehicle. Their badges were visibly displayed hanging from their necks. The officers watched as "a couple of people standing on the corner . . . walked away." Nieves "checked the area for any kind of drug stash," but finding none, left the area. While on patrol about an hour later, Nieves drove past the same intersection and saw one of the individuals he had seen earlier. Nieves identified that individual as defendant.
The intersection of Bidwell Avenue and Martin Luther King Drive was well-known to Nieves as a drug area. The police had been receiving complaints about narcotics transactions and other illegal activity at that location for nearly fourteen years. Nieves himself had conducted surveillances of the intersection and had made numerous narcotics-related arrests before the day he arrested defendant. For those reasons, after seeing defendant loitering at that intersection a second time, Nieves returned to police headquarters and switched the police vehicle with his personal car, which had tinted windows; he then returned to the intersection where he set up surveillance. After approximately twenty minutes, Nieves witnessed defendant make what the officer believed to be a narcotics sale.
As Nieves watched, another person approached and spoke with defendant, walked with defendant approximately thirty feet west on Bidwell Avenue, stopped, and handed defendant money. Defendant counted and pocketed the money, reached into his "hoodie" pocket, pulled out a small white object, and handed it to the other person, who then walked away. Defendant also walked away. Based upon his fifteen years of experience as a police officer, which included a week of narcotics training, working on the Jersey City narcotics squad for six months, and working plainclothes on a regular basis, Nieves believed he had witnessed a narcotics sale.
Nieves radioed a description of the buyer to a "perimeter unit." When the officers in that unit, Clarence Dabny and Charles Taveras, were unable to locate the buyer, Nieves gave them defendant's description. Dabny and Taveras stopped defendant on Martin Luther King Drive and arrested him. After arresting defendant, the officers searched him and found fifty-four bags of heroin and $39 in the pocket of his hoodie.
At trial, Nieves was one of five witnesses who testified for the State. The others were Officers Dabny and Taveras; Linda Hogar, a forensic chemist, who tested randomly some of the fifty-four glassine bags seized from defendant and concluded they contained heroin; and Sergeant Wally Wolfe, who testified ...