On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-05-00736.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically on June 13, 2012 --
Before Judges A. A. Rodriguez and Reisner.
Following a jury trial, defendant, Azariah Greene, was convicted of three counts of fourth-degree distribution of marijuana, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(12); and three counts of third-degree possession of CDS, with the intent to distribute same within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 and -5a. Defendant moved for a new trial. The trial judge denied the motion and sentenced defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f). After merging all convictions into the distribution conviction, the judge imposed a seven-year term of imprisonment, with a three-and-one-half-year period of parole ineligibility.
These are the proofs presented by the State at trial. Paterson Police Department Detective Brian Morgan, of the Narcotics Division, testified that, following up on a tip from a "concerned citizen," on November 16, 2007, at 7:27 p.m., he established a visual surveillance of a house on Governor Street in Paterson. The tip indicated that a "black male, described as approximately 5'9" tall, thin build, and a dreadlock hairstyle worn in two pig tails," was selling drugs from the Governor Street house's porch. Morgan was in an unmarked police vehicle and used binoculars to see the porch. He parked the vehicle on the other side of the street from the surveyed residence where he could "get a clear view of the house."
Morgan saw a young man, later identified as defendant, in the porch area "walking in and out" of the hallway area of the house. Morgan described defendant as having "two pigtails on the top of his head" and "wearing a green-like sweatshirt with gray in it." At 7:41 p.m., Morgan saw another individual, later identified as Ismael Quinones, pull up in "a purple Civic" and join defendant. Quinones "walked up onto the porch where he was met by [defendant]" and handed defendant money. In exchange, Quinones received an unidentified object. Based on his experience, Morgan concluded that a hand-to-hand drug transaction had occurred.
Morgan called in a description of the Civic. Other police officers stopped the Civic and Quinones was arrested by Detective Anthony DeGiglio. A bag of marijuana was found on the floor of the Civic. The bag weighed 1.08 grams.
Morgan continued the surveillance. Shortly after 8:00 p.m., he saw a second man, later identified as John Graziano, walk up to the porch. A similar hand-to-hand transaction occurred between defendant and Graziano. Morgan called in a description of Graziano, who was arrested shortly thereafter. A bag of marijuana, weighing 1.35 grams, was found in his possession.
Morgan continued the surveillance for another hour. No one else approached the porch. At that point, Morgan decided to arrest defendant.
Detective DeGiglio and Sergeant Otaro went to the front of the house. Other officers saw defendant running towards the back of the house. Morgan also went to the back of the house and heard a commotion inside. Morgan saw defendant in the kitchen, "kicked in the back door" and entered the house. Defendant threw an unidentified object into the kitchen garbage can and ran to the front of the house. There he was confronted by DeGiglio. Defendant was arrested. The object discarded in the kitchen garbage can turned out to be a bag, holding twenty-two smaller zip-lock bags. It was later determined by the State Police lab that the smaller bags each contained approximately 1.35 grams of marijuana.
The house's other occupants were defendant's two brothers, Joshua Greene, age nineteen, Michael Greene, age twenty-three, and defendant's girlfriend, Yanicka LaBranche. They were not arrested.
On defendant's person, Morgan found currency totaling $258. Defendant consented to a search of his room, where an additional $1,100 in currency was found.
Defendant presented LaBranche, who testified as an alibi witness. According to her, defendant remained in the house with her at a time when the police said defendant walked out to the porch to make drug sales. She and defendant were waiting for the arrival of Chinese food. The police entered the house almost immediately after the food arrived. She was adamant the police had misidentified defendant as the individual seen on the porch because defendant had never left her side. Nor did she see defendant discard a bag of marijuana into the kitchen garbage can.
On cross-examination LaBranche conceded she did not tell the police or the Prosecutor her version of events. However, she testified that she informed ...