On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
Defendant Andres Torres and co-defendant Craig Lea were charged with second-degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2; third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); second-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(b)(2); third-degree possession with intent to distribute a CDS in a school zone, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within 500 feet of West Side Park, a public park, and West Side Village, a public housing facility, N.J.S.A. 2C:35-7.1. Defendant, but not Lea, was also charged with fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). Defendant was tried alone.
The first jury to consider the case found defendant guilty of resisting but was unable to reach a verdict on the drug charges. Defendant's re-trial on the drug charges commenced two months later, and the second jury found defendant guilty of all crimes charged. The court sentenced defendant to an eight-year term of imprisonment with a four-year period of parole ineligibility for possession of CDS within a public housing zone, merged his convictions for the other drug offenses with that conviction, and sentenced him to a concurrent term of eighteen months for resisting.*fn1 The court also imposed the appropriate fines, fees, penalties and assessments.
On appeal defendant argues:
I. 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. TORRES ENGAGE IN A NARCOTICS TRANSACTION. (NOT RAISED BELOW).
II. THE ADMITTANCE INTO EVIDENCE OF MR. TORRES'S REMOTE CRIMINAL CONVICTIONS CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED MR. TORRES'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
III. THE PROSECUTOR'S CROSS-EXAMINATION OF MR. TORRES AND COMMENTS IN SUMMATION CONCERNING MR. TORRES'S POST-ARREST SILENCE VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION AND DEPRIVED HIM OF A FAIR TRIAL. (NOT RAISED BELOW).
IV. IMPROPER COMMENTS OF THE PROSECUTOR IN OPENING AND CLOSING ARGUMENT DEPRIVED MR. TORRES OF A FAIR TRIAL.
V. THE TRIAL COURT ERRED IN FAILING TO GRANT MR. TORRES'S MOTION FOR A NEW TRIAL BECAUSE STATEMENTS MADE BY A NON-TESTIFYING POLICE WITNESS WERE IMPROPERLY ADMITTED BY THE TRIAL COURT AND DIRECTLY IMPLICATED MR. TORRES IN THE OFFENSES CHARGED IN THE INSTANT INDICTMENT.
VI. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. ...