NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 29, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-01448.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).
Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges Alvarez and Carroll.
Defendant Naski Jones appeals his January 22, 2010 judgment of conviction (JOC) for possession with intent to distribute cocaine and related charges. He argues that improper opinion testimony given by a police officer, that he observed a narcotics transaction in a "high narcotics" area, mandates reversal of his conviction, and furthermore that the trial court erred in failing to replace a sleeping juror. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In May 2009, defendant and co-defendant Cashmere Bush were charged under Indictment No. 08-05-01448 with second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count three); third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four); and second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, park, or building, N.J.S.A. 2C:35-7.1 (count five). Following a September 2009 jury trial, defendant was found guilty of all counts, and on January 22, 2010, he was sentenced to an aggregate term of nine years imprisonment with three years of parole ineligibility.
We glean the following facts from the trial record. Around 8 p.m. on January 29, 2008, Sergeant Sean Powell of the Newark Police Department was on a clandestine narcotics patrol in an unmarked mini-van near 18th Street and Clinton Avenue, accompanied by Detective Youletta Rainey and Sergeant Whitaker. Powell knew this to be a "high narcotics area" since he had previously made numerous arrests for drugs and weapons there.
Around 11 p.m., Powell observed a male, later identified as Bush, and an unidentified female engage in a brief conversation. The woman handed Bush what appeared to be currency. Bush then walked to a house on 18th Street, knocked on the door and another male, later identified as defendant, answered. Powell then observed defendant go back inside the house, return, and hand Bush "an object." Bush then gave the object to the female, who walked away. She was not apprehended. Powell testified at trial that he believed he witnessed a narcotics transaction.
Powell observed Bush again return to the house, knock on the door, and engage in another exchange with defendant. Powell exited his surveillance vehicle along with Whitaker and Rainey, and they approached the home in their plain clothes, wearing police badges. When they identified themselves as police officers, Bush dropped three vials of cocaine on the porch and attempted to run into the house. Bush was arrested, and an additional ninety-five vials of cocaine were seized from him. As this occurred, defendant looked to the porch from behind the door. Powell asked defendant to come out from behind the door, but he refused, resulting in Powell pursuing him into the hallway of the three-family residence, where defendant dropped a large plastic bag containing 125 vials of cocaine onto the floor. Defendant was arrested, and transported with Bush to police headquarters for processing. The police found $115 on defendant's person and $25 on Bush. A total of 6.8 grams of cocaine was recovered from both defendants.
The officers then obtained consent to search the first floor apartment from the occupants, Keyonda White and Britany Long. White told police that defendant had been in the apartment. No other drugs were found during the search.
At trial, the circumstances surrounding defendant's arrest, and the subsequent search of the residence, were sharply disputed. The State called Powell and Rainey as witnesses, and both testified to their extensive training and experience while employed by the Newark Police Department as narcotics detectives. Powell had received police academy training, Drug Enforcement Agency (DEA) training, and "HIDTA" training, which he explained involves "high intensive drugs, " and training in undercover buys and arrests. Both detectives testified that they had observed hundreds of narcotics transactions in their careers, and made hundreds of arrests in narcotics cases.
Powell explained the events leading to defendant's arrest as follows:
[Prosecutor]: Could you explain and point to the jury where Mr. Bush was when he knocked on the door to get whatever item he was getting and you arrested him?
[Powell]: He would knock on the door,
standing right here on the porch, and knock on the door and [then] wait both times -as we arrived at the house Mr. Bush is actually walking down the stairs – I think like three or four stairs he was actually walking down the step[s]. We walked up, and [we] identified ourselves, ...