On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-12-1115.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
Defendant Donald Jackson appeals from the judgment of conviction and sentence that followed a jury verdict finding him guilty of third-degree distribution of cocaine in violation of N.J.S.A. 2C:35-5(b)(3). At sentencing, after the State moved for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f), the judge granted the motion and imposed a sentence of ten years imprisonment, with a five year period of parole ineligibility, along with the appropriate financial penalties.
We discern the following facts from the trial record.
On July 17, 2008, at approximately 3:15 p.m., Detective James Gillespie made an undercover purchase of crack cocaine from defendant in the parking lot of a Coastal Mart, near the intersection of Irving and Pearl Streets, in Bridgeton. Detective Gillespie worked for the Salem County Prosecutor's Office and, at the time, was assisting the Bridgeton City Police Department in an undercover capacity, along with other members of the "Guns, Gangs and Narcotics Task Force."
Detective Gillespie, driving an unmarked vehicle, entered the Coastal Mart parking lot and parked next to a maroon minivan. Gillespie got out of his car and the driver of the van called him over. Gillespie approached the passenger side of the van and spoke with the two males in the van about buying drugs. Defendant was in the front passenger seat of the van and sold Gillespie loose crack cocaine wrapped in paper for twenty dollars. Gillespie also purchased a quantity of heroin from the driver.
After Gillespie completed the undercover purchase, Detective Rick Pierce, a back-up officer, approached and saw the minivan exit the parking lot. Pierce testified that he "got a very good look at the driver," later identified as Dontre Crawford, but he did not get a good look at the passenger. Gillespie turned over the substances he had purchased to Pierce. Pierce secured the suspected cocaine Gillespie had purchased from defendant and placed it into an evidence bag, which Gillespie signed and dated. The bag was then sealed, marked with the case number and placed in the Bridgeton Police Department evidence locker.
Gillespie also provided Pierce with a description of the passenger of the vehicle. He indicated that the passenger was "a light to medium skinned black male, approximately forty years old," and was approximately six feet tall and weighed 250 pounds. He added that the passenger was dressed in blue jeans and a white t-shirt.
On July 19, 2008, Bridgeton Detective Jeffrey Bordley stopped the minivan. Defendant was driving the minivan and matched Gillespie's earlier description of the passenger who had sold him crack cocaine. Bordley compiled a photo array, which he showed to Gillespie on July 31, 2008. The photo array consisted of six photographs, which were shown to Gillespie one at a time. Gillespie identified the individual in the third photograph, defendant, as the individual who sold him the cocaine on July 17. He also identified defendant before the jury.
A State Police forensic scientist testified that she examined the substance Gillespie bought from defendant and confirmed it to be cocaine. On December 15, 2009, the jury returned its verdict, finding defendant guilty of distribution of cocaine in violation of N.J.S.A. 2C:35-5(b)(3).
Defendant raises the following arguments on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ART.] 1, [PAR.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF IDENTIFICATION EVIDENCE.
A. THE IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE AND DID NOT COMPLY WITH THE LAW.
B. THE TRIAL COURT ADMITTED HIGHLY MISLEADING IDENTIFICATION EVIDENCE THAT COULD ONLY CONFUSE JURORS AS THEY ASSESS THE IDENTIFICATION ISSUE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ART.] 1, [PAR.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION ...