On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-0788.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
Before Judges Yannotti, Harris, and Hoffman.
Defendant Michael Daniels appeals from a January 17, 2012 judgment of conviction memorializing five crimes: second-degree conspiracy to possess heroin with the intent to distribute, N.J.S.A. 2C:5-2; 2C:35-10(a)(1); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); 2C:35-5(b)(3); third-degree possession of heroin with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and second-degree possession of heroin with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. After merger, Daniels was sentenced to seven years with a three-and-one-half-year parole disqualifier. We affirm.
We garner the facts from the record of the jury trial. Based upon information obtained from third-parties, several Newark police officers engaged in a plan to investigate suspicious activity at a multi-family apartment building on Brunswick Street. The building is located within 500 feet of a public park and within 1000 feet of a school. On September 17, 2009, Detective Lydell James was deployed to that neighborhood where, from an unmarked police vehicle, he observed numerous individuals hurriedly walk into and out of the apartment building.*fn1
Eventually, as part of their police investigation, James and two other detectives -- all in plain clothing -- entered the unlocked apartment building and ascended a stairwell to the third floor. There they encountered Daniels and two other individuals between the third and fourth floors. James testified that as soon as he saw Daniels, he observed "a glassine envelope in his hand," which contained heroin. After the envelope was seized, James observed that it was stamped with a "teal green" image of a machine gun and the word "Vengeance."
Also present was co-defendant Karriem Sanchez, who was observed sitting on a windowsill "actually counting money." Later, Sanchez was found in possession of $235 in cash, plus forty-nine glassine envelopes of heroin that, according to James, each had "a teal green logo with machine gun and . . . the word Vengeance on it."
The third individual, Charles Dunlap was found in possession of a single ten-dollar bill clutched in his hand. The trial testimony was as follows:
[THE PROSECUTOR]: All right. How much money did he have in his hand? [JAMES]: A $10 bill. [THE PROSECUTOR]: Okay. Now, you said he was holding it in his hand. Given your training and experience with respect to investigations into illegal narcotics activity, did that create any suspicions in your mind? [DEFENSE COUNSEL]: Objection.
[THE COURT]: Objection overruled. I'll permit the question. The Officer can certainly respond to that question based on the experience, training and etcetera that he's already testified to.
[THE PROSECUTOR]: Based on what you observed, that is Mr. Dunlap holding the $10 bill, and your training and experience, did seeing that create any suspicions in your mind? [JAMES]: Yes it did. [THE PROSECUTOR]: What was that? [JAMES]: That a narcotics transaction was occurring.
As part of the continuing investigation, the involved police officers suspected that drug trafficking activity was occurring in apartment 3A, located at the foot of the stairwell where Daniels was found. Among the things that alerted the police to apartment 3A was Detective Peter Chirico's observations of an individual in that apartment throwing "several bricks -- glassine envelopes, because they were wrapped -- out the window." After gaining entry to the apartment, the police found two persons inside and they seized additional heroin. An examination of the "several bricks," revealed that each was comprised of fifty envelopes containing heroin, and each envelope was stamped with the word Vengeance on it.
At trial, Daniels moved for a mistrial based upon James's expression that "a narcotics transaction was occurring" in the stairwell. The trial judge denied the motion, but agreed that "the essence of [State v. McLean, 205 N.J. 438 (2011)] . . . is that a fact witness is not permitted to give the type of testimony or opinion provided by Detective James as a response to the prosecutor's question." Accordingly, the judge addressed the gaffe by preparing a ...