On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-03-0713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2011
Before Judges Sabatino and Ashrafi.
Defendant Lamar Jackson appeals from convictions resulting from two successive trials that arose out of the same indictment. At the first trial, in October 2009, the jury found defendant guilty of third-degree simple possession of crack cocaine, N.J.S.A. 2C:35-10a(1), but was unable to reach a unanimous verdict on the three other counts in the indictment. At the second trial in November 2009, defendant was convicted on all of the remaining counts, namely second-degree possession with intent to distribute more than a half an ounce of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2); third-degree possession of cocaine with intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with intent to distribute it within 500 feet of a public housing project, public park, or public building, N.J.S.A. 2C:35-7.1. After appropriate mergers, the trial court imposed upon defendant an extended-term sentence of eighteen years, with nine years of parole ineligibility, plus a concurrent ten-year sentence with a six-year parole disqualifier.
On appeal, defendant contends that the manner in which the trial court dealt with a potential juror who had recognized him during jury selection was unfairly prejudicial and that the court improperly allowed the State's narcotics expert to use a crack pipe and plastic baggies for demonstrative purposes during his testimony. Defendant further argues that his sentence was excessive. We affirm.
The State's proofs at both trials*fn1 established that defendant was observed, during police surveillance of an area known for drug transactions, pulling a plastic bag containing a white rocky substance out of his boot and placing it in his waistband. The substance was seized from defendant and later confirmed by testing to be crack cocaine. The pertinent details are as follows.
At around 9:00 a.m. on February 23, 2008, Atlantic City Patrolman Robert Nawrocki was conducting surveillance in the vicinity of the Stanley Holmes Village housing project. According to Officer Nawrocki's trial testimony, the housing project "[has] been known as a high-crime, high-drug area." Officer Nawrocki was "[l]ooking for narcotic sales" that day because, as he put it, there had been "a lot of complaints by citizens" about such sales.
Officer Nawrocki stated that he was about 100 yards away from the surveillance location and was using binoculars that made objects that were that distance away appear as though they were only ten yards away. Nawrocki stated that he observed defendant smoking a marijuana joint with an unidentified male on the porch of the housing unit. The unidentified man then walked inside the building.*fn2
Nawrocki testified that he then observed defendant leave the area, reach down into his boot, "manipulat[e]" his sock, and pull out a clear plastic bag. The bag contained a white rocky substance in the shape of a golf ball. Nawrocki then saw defendant place the bag in his waistband.
Nawrocki, who had been involved in about 500 narcotics cases and completed some 120 hours of narcotics coursework, testified that based on his experience and training, he believed that the defendant's plastic bag contained crack cocaine. He also noted that drug dealers will commonly attempt to conceal narcotics in the area of their waistbands.
After observing defendant's suspicious actions, Nawrocki left his surveillance location, pulled his vehicle up next to defendant, and identified himself to defendant as a police officer. Nawrocki arrested defendant and searched him. Defendant did not resist the arrest. However, when Nawrocki reached for defendant's waistband, he "was twisting and turning trying to keep [the detective] from getting to that area."
Nonetheless, the patrolman was able to recover the plastic bag containing the golf-ball-sized white substance from defendant.*fn3
Nawrocki then took defendant back to the police department and completed the booking process, which involved an additional search of defendant. During this second search of defendant's person, Nawrocki recovered a digital scale and a cell phone. Officer Nawrocki did not recover any pipes, lighters, plastic baggies, or money.
Nawrocki then field-tested the white, rocky substance, and it came up positive for crack cocaine. The substance was then sent out to the State Police laboratory for additional testing. Those test results confirmed that the substance tested positive for crack cocaine and that it weighed 1.08 ounces.*fn4
Nawrocki testified, without objection, that it was his belief that defendant intended to sell the crack cocaine that he possessed because
[t]he quantity, the way it was packaged in a plastic bag is usually known for dipping where you can open the bag and pull out small rocks, sell them for $5.00 or $10.00.
That alleviates any type of baggies you might have to carry on you, easier to get rid of because it's one bag. Also the fact that he had a scale is indicative of sales to weigh it out . . . It's easier to weigh it for the customer so the customer knows they're not getting beat.
The State also presented expert testimony from Detective James Scoppa, Jr., of the Atlantic County Prosecutor's Office. Detective Scoppa is a member of the Prosecutor's Shooting Response Team, which investigates gang, drug, and organized crime-related shootings. He is also a member of the FBI Safe Streets Task Force Unit, which investigates large-scale drug distribution organizations. Scoppa had previously ...