STATE OF NEW JERSEY v. JAMES TURNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1610-07T41610-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES TURNER,

Defendant-Appellant.

_________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

06-06-1882.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Thomas Menchin, Designated Counsel,

of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (LeeAnn Cunningham, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Turner was tried before a jury and convicted of third degree conspiracy to violate narcotics laws, N.J.S.A. 2C:5-2, third degree possession of heroin, N.J.S.A. 2C:35-10a(1), third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, third degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7. The same jury convicted co-defendant Robert McNair. The court sentenced defendant to an extended term sentence of seven years with a three-year period of parole ineligibility under N.J.S.A. 2C:43-6(f).

We gather the following facts from the evidence presented at trial. On March 22, 2006, Essex County Sheriff's Bureau of Narcotics Detective Mahmoud Tamimi was conducting surveillance on Stuyvesant and Chancellor Avenues in Irvington when he saw a man, subsequently identified as Anthony Tambascia, approach two other men standing on the street. Detective Tamimi saw Tambsacia give what appeared to him to be paper currency to one of the men; Tambascia then returned to his original location. At the direction of the man who received the cash, the other man walked to where Tambascia was standing and handed Tambascia several items.

Based on his training and experience, Detective Tamimi concluded that he had witnessed a narcotics transaction and, therefore, called for backup. Additional officers responded to his call and all three suspects were arrested. Sergeant Vladimir Tavares of the Irvington Police Department was one of the responding officers. He approached Tambascia, who was standing next to a white Mustang that had its passenger side door open. As Sergeant Tavares approached, Tambascia threw several items into the car and closed the door. Looking through the car window, Sergeant Tavares saw two "decks" of heroin on the seat.

Defendant was identified as one of the two men who were involved in the apparent narcotics transaction with Tambascia. Defendant was standing by the rear of the white Mustang when State Police Officer Eric Hahn arrested him. When Officer Hahn searched defendant, he discovered three bundles of heroin on his person. Both the heroin bundles in defendant's possession and the heroin discovered on the seat of the car were labeled with the words "Born Dead" in red ink.

Irvington Police Officer Elijah James also responded to Detective Tamimi's call. Officer James arrested co-defendant McNair, who Detective Tamimi identified as being the third man he observed participating in the illicit narcotics transaction. Officer James seized the $168.00 in cash that he discovered on McNair's person.

Against this record, defendant now raises the following arguments on appeal:

POINT I

TESTIMONY OF A STATE'S WITNESS WHO WAS NEVER QUALIFIED AS AN EXPERT AND WHO OFFERED HIS OPINION ON THE ULTIMATE ISSUE FOR THE JURY TO DECIDE, CONSTITUTED PLAIN ERROR. (Not Raised Below)

POINT II

DEFENDANT'S PRIOR CONVICTIONS WERE TOO REMOTE TO HAVE BEEN PERMITTED TO BE CONSIDERED BY THE JURY.

POINT III

BECAUSE THE ARREST OF DEFENDANT WAS WITHOUT PROBABLE CAUSE, THE HEROIN SEIZED MUST BE SUPPRESSED.

POINT IV

THE SENTENCE WAS EXCESSIVE.

We are satisfied that none of defendant's arguments warrant reversal of his conviction or require interference with the sentence imposed by the court. We nevertheless make the following brief comments.

As to argument Point I, the police officer witness called by the State was qualified, based on his training and experience, to form an opinion as to the illicit nature of the activity he witnessed. Furthermore, because defendant did not object to this witness's testimony at trial, we can only reverse under the plain error standard; this requires us to find that the error committed by the court was clearly capable of producing an unjust result. R. 2:10-2. Here, we discern no error, let alone plain error. Defendant's reliance on State v. Baskerville, 324 N.J. Super. 245, 254-56 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), is misplaced because the witness here was testifying as a fact-witness, not as an expert under N.J.R.E. 702.

We discern no abuse of discretion in the trial court's decision to permit the State to use, for impeachment purposes, defendant's six prior criminal convictions. State v. Sands, 76 N.J. 127, 144 (1978). The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

We affirmed co-defendant Robert McNair's conviction and sentence in response to his direct appeal.

(continued)

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A-1610-07T4

July 9, 2010