NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 11-01-0041.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
Before Judges Waugh and Accurso.
Defendant Deaven Mims appeals his conviction for fourth-degree distribution of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-5(a)(1), (b)(12) (count one); third- degree distribution of CDS (marijuana) within 1000 feet of school property, N.J.S.A. 2C:35-7, -5(a) (count two); fourth-degree possession of CDS (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(12) (count three); and third-degree possession of CDS (marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, -5(a) (count four), as well as the resulting sentence of two concurrent seven-year terms of incarceration, both subject to three-and-a-half years of parole ineligibility, on counts two and four. We affirm.
We discern the following facts and procedural history from the record on appeal.
On August 3, 2010, Detective Anthony Degiglio of the Paterson Police conducted surveillance at the intersection of North 6th Street and Clinton Street in Paterson. Degiglio was in plain clothes and had parked his unmarked police car approximately a block away from the intersection. He described the intersection as a residential area "well known for narcotics activity." Although Degiglio was the only police officer on the scene, there was a backup team positioned several blocks away. He used binoculars for some of his observations.
Shortly after 1:00 p.m., Degiglio observed Mims sitting in a chair on the sidewalk near the northeast corner of the intersection. Approximately five minutes later, he saw a woman walk up to Mims and hand him money. Mims then walked into an alley-like area between two buildings on North 6th Street and returned after a few seconds. Degiglio then observed Mims hand the woman a small object. Degiglio notified the backup team, but they were unable to locate the woman.
A few minutes later, at approximately 1:25 p.m., Degiglio observed a green Ford Taurus park across the street from Mims. He saw the passenger get out of the car, approach Mims, and hand him money. The passenger was subsequently identified as McKinley Giggetts. Mims handed Giggetts a small object, which Giggetts in turn handed to Arthur Ward, the driver of the Taurus. Degiglio notified the backup team.
Mims, Giggetts, and Ward were arrested and searched. Nothing was found on Giggetts. Ward had a single bag of marijuana, and Mims had three bags of marijuana. Three additional bags of marijuana, and several empty bags similar to those used to hold the seized marijuana, were found during a search of the area behind the house to which Mims had gone during the first transaction.
Mims was indicted for the four offenses listed above. Giggetts and the driver were charged with possession. Giggetts pled guilty in municipal court to the disorderly persons offense of possession of CDS. N.J.S.A. 2C:35-7.1(a).
During the weekend prior to the trial date, Mims was struck by a motor vehicle, causing him to be tossed into the air and land on his back. He was taken to a hospital as a result of the accident. He was diagnosed with a scalp laceration, which required seventeen stitches, and multiple contusions. Following diagnostic tests, including X-rays, there was no evidence of a concussion or trauma-induced back injury.
On the first day of trial, Mims moved for an adjournment of the trial based on his injuries, claiming that his head injury prevented him from participating in his defense. The judge denied the motion, explaining that the medical records submitted in support of the motion established no injuries other than the head laceration and contusions. The judge found no evidence of any injury that would prevent Mims from participating in the trial. When defense counsel asked the judge to reconsider, he responded:
. . . with all due respect, I've read the same report you have here. The disposition summary is scalp lacerations, contusions multiple. That's it. He had stiches put in. He's supposed to go back in a week to have the stitches taken out. He was discharged after three hours in the ER. They were concerned because apparently he complained about back pains. Radiological results are no fractures, degenerative disk disease.
There's nothing further for you to argue with regard to the medical condition [and] I am not adjourning the matter based on that.
The judge agreed to review any additional medical reports, but none were submitted.
Mims also moved for suppression of the evidence on the first day of trial. The judge held a suppression hearing, at which Degiglio testified to the facts related above. Mims' mother testified that she owned the house behind which the drugs were found. The State argued that the drugs seized behind the house were in plain sight and visible from an area outside of the mother's back yard.
The trial judge denied the motion to suppress the drugs. As to the drugs found on Mims, the judge held that Degiglio had a reasonable, articulable suspicion that he had witnessed drug transactions and that the search incident to Mims' arrest was lawful. As to the drugs seized behind the house, the judge accepted the State's argument that State v. Johnson, 171 N.J. 192 (2002), authorized the search of the common area. In so finding, the judge held that
Officer Huntington's entry into that rear of that property into a common area of that property was altogether appropriate, lawful and logical, given [Degiglio's observations of Mims entering the area during the transactions]. The State is absolutely right that the fact that it was a common area made it altogether lawful for the officer to have gone back there, not needing either a search warrant or a consent to search in a common area.
During the trial, Degiglio again testified to the facts outlined above. There was no objection to Degiglio's testimony that he had set up surveillance of the intersection or to his characterization of the location as a high narcotics area. Degiglio also testified that Mims was arrested within two blocks of Public School 17. On cross examination, defense counsel sought to question Degiglio about other investigative methods that he could have used rather than surveillance, but was precluded from doing so when the prosecutor objected.
The officers from the backup team testified about the arrest and search. They did not testify about the alleged drug transactions, which they had not witnessed.
After the State rested, Mims moved for a directed verdict of acquittal. The trial judge found that the testimony provided by the State's witnesses was "very much consistent with a person selling drugs on the street, who after receiving money goes to their stash and retrieves [drugs] and then completes the transaction." Defense counsel also argued that Public School 17 had been closed and turned into a charter school. The judge held that there was sufficient evidence in the record that "it was a functioning [public] school." Consequently, he held that there was, at that time, sufficient evidence that there was a school operating within 1000 feet of the site of the alleged drug transactions. The judge denied the motion in its entirety.
Mims presented three witnesses. His mother testified regarding her belief that Public School 17 was now a charter school,  and that her son was employed by a fencing company at the time of the incident. Barbara O'Byrne, a Public Defender's investigator, testified concerning photographs of the area, which defense counsel subsequently argued undercut Degiglio's testimony that he had a good view from his car to the area where the alleged drug transactions had taken place.
Finally, Giggetts testified about his transaction with Mims. According to Giggetts, he was on his way to the liquor store across from where Mims was arrested, but did not have enough money. When he saw Mims, he asked him for some money. Giggetts testified that, when Mims gave him the money, Mims slapped his hand so hard that he dropped the money. Giggetts also testified that (1) he did not know about Ward's marijuana, (2) he had not given Ward any marijuana, and (3) he did not purchase any marijuana from Mims.
On cross-examination, the prosecutor sought to impeach Giggetts' testimony by questioning him about statements made to the municipal judge when he pled guilty to possessing marijuana on the day of his arrest, as well as statements made to the prosecutor and one of his detectives the week before the trial. Defense counsel objected, but was overruled.
The jury found Mims guilty on all four counts. Mims filed a motion to set aside the verdict, arguing that there was insufficient evidence to support the convictions. He also claimed that he had been denied exculpatory evidence concerning the criminal histories of his son and brother, both of whom lived at his mother's house. He argued that he could have contended that the marijuana behind the house belonged to one of them.
The motions were heard on October 12, 2011, just prior to the sentencing. The judge denied the motion for a new trial. As to the contentions concerning the alleged Brady violation, the judge found "the notion that there was any Brady violation . . . to be absurd." In so finding, the judge rejected defense counsel's argument that the State had a duty to investigate everyone living in the area so that they could provide the defense with detailed criminal histories on them.
The judge then granted the State's motion for an extended-term sentence under N.J.S.A. 2C:43-6(f). He found the following aggravating factors to be present: that the defendant was likely to commit another offense; that he had an extensive prior record, including other school zone drug distribution convictions; and that his prior offenses had been serious. N.J.S.A. 2C:44-1(a)(3), (6). The judge also found a need to deter Mims and others from such offenses. N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors. After required mergers, the judge sentenced Mims to an extended term of seven years with ...