On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-05-443.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Byron K. Jones Jr. appeals from his conviction in a non-jury trial on drug distribution charges and a sentence of seven years imprisonment. We affirm.
A Gloucester County grand jury indicted defendant on six third-degree charges: (counts one and four) possession of cocaine, N.J.S.A. 2C:35-10a(1); (counts two and five) possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3); and (counts three and six) distribution of cocaine, N.J.S.A. 2C:35-5b(3). Counts one through three arose from an undercover purchase of cocaine from defendant on November 3, 2006. Counts four through six arose from the purchase of cocaine from defendant by the same undercover detective at the same location six days later, November 9, 2006.
Defendant expressly waived in open court his constitutional right to be tried by a jury. His bench trial was held before Judge Walter Marshall Jr. in April 2010. The State presented the testimony of four law enforcement witnesses - the undercover detective, a second detective in charge of the investigation, an evidence custodian, and an expert from the State Police laboratory to identify the items purchased as cocaine. The defense did not present any witnesses.
The undercover detective testified that on November 3, 2006, he and a confidential informant went to a fast food restaurant, where the confidential informant introduced him to defendant. The detective then purchased one-quarter ounce of cocaine from defendant, receiving the drugs and paying $250 to defendant under a table. The detective also testified that he obtained defendant's telephone number at that time for future transactions. Following the November 3 purchase, the detective in charge of the investigation showed the undercover detective a single photograph, which depicted defendant, and the undercover detective identified the photograph as the person from whom he had just purchased the cocaine.
The undercover detective testified that he contacted defendant directly on November 9, 2006, at the telephone number he had received, and he asked for another quarter ounce of cocaine. The detective then met defendant alone at the same fast food restaurant and purchased the quarter ounce, again for $250. No confidential informant was involved or present for the second purchase. After the transaction, the undercover detective again identified the same photograph as the person from whom he had purchased the cocaine.
The detective testified that he wore a concealed microphone during the two transactions so that other detectives could monitor the events from a location nearby to ensure his safety and the safety of the public. He testified that the November 3 transaction was not recorded because the detectives did not want to jeopardize the informant's safety by recording his voice.
During cross-examination of the undercover detective, defense counsel discovered a DVD recording in the detective's file that was marked "not for discovery" and had not been turned over to the defense before the trial. The assistant prosecutor who was trying the case was not aware of the DVD recording. The court ruled that the defense was entitled to discovery of the DVD, which was a recording of the November 3 transaction. The recording revealed that two confidential informants had actually been present during the first transaction and one of them had initially received the cocaine before it was returned to defendant and then given to the undercover detective. The court ordered that a transcript of the recording be promptly prepared, and the defense was given an opportunity to review the recording and transcript and subsequently to cross-examine the undercover detective about the discrepancies in his testimony and the contents of the recording.
Upon completion of all testimony and the arguments of counsel, Judge Marshall dismissed counts one through three of the indictment pertaining to the November 3 transaction. The judge found that the State had violated defendant's due process rights by failing to disclose the recording before the trial. Reviewing the evidence pertaining to counts four through six, the judge concluded beyond a reasonable doubt that defendant had engaged in the November 9 transaction and therefore was guilty of the charges brought in those counts.
At the sentencing hearing on September 20, 2010, the judge referenced defendant's three prior convictions on drug distribution charges and sentenced him to an extended term of seven years imprisonment with three years of parole ineligibility, consecutive to a sentence defendant was then serving for conviction on another drug offense.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO A JURY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES ...