STATE OF NEW JERSEY v. TASHANDO R. LUSTER

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5444-07T4



STATE OF NEW JERSEY,

         Plaintiff-Respondent,

    v.

TASHANDO R. LUSTER,

         Defendant-Appellant.

________________________________________________________________

         Submitted March 16, 2010 - Decided April 30, 2010

         Before Judges Carchman and Ashrafi.

         On appeal from the Superior Court of New
         Jersey, Law Division, Hunterdon County,
         Indictment No. 06-03-0119.

         Yvonne Smith Segars, Public Defender,
         attorney for appellant (Lon Taylor,
         Assistant Deputy Public Defender, of
         counsel and on the brief).

         J. Patrick Barnes, Hunterdon County
         Prosecutor, attorney for respondent
         (Bennett A. Barlyn, Assistant Prosecutor,
         of counsel and on the brief).

PER CURIAM

    Following a jury trial, defendant Tashando Luster was found

guilty of three counts of second-degree distribution of a

controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1)

and N.J.S.A. 2C:35-5(b)(2), as well as one count of first-degree

distribution of a controlled dangerous substance (cocaine),

N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(1).      After

appropriate mergers, the trial judge sentenced defendant to a

mandatory extended term of imprisonment, N.J.S.A. 2C:43-7c and

N.J.S.A. 2C:43-6f, of twenty-years with an eight-year period of

parole ineligibility together with mandated fines and penalties.

Defendant appeals, and we affirm.

    The thrust of defendant's defense was entrapment.         On

appeal, defendant asserts that the admission of a prior drug

conviction to establish predisposition constituted reversible

error.   With a focus on that issue, we review the testimony

adduced at trial.

    During the fall of 2005, an informant, Michael

Featherstone, related to detectives assigned to the Somerset

County Drug Task Force that he met an individual while in

custody at the Somerset County Jail who could procure

significant amounts of cocaine.       A meeting was arranged between

the individual, later identified as defendant, and undercover

Hunterdon County Detective Mark Wilson of the Narcotics Task

Force.   Detective Wilson presented himself as a laborer and

longstanding friend of Featherstone who was interested in

purchasing an ounce of cocaine.




                                                               A-5444-07T4
                                  2

    The meeting occurred on October 9, 2005 at approximately

11:30 a.m. in a parking lot.   After speaking with Featherstone,

Detective Wilson arrived at the designated location with

identifiable currency that had been supplied and photocopied by

the Task Force.   The detective was also armed with a handgun and

equipped with a concealed wireless microphone and transmitter to

record and broadcast any conversations.    Defendant was driven to

the scene by Featherstone and arrived several minutes later.

    After being waved over to the vehicle by Featherstone,

Detective Wilson approached the car and entered the driver's

side rear door.   During a brief conversation with the detective,

defendant stated that he was a good judge of character and could

see that the officer was "cool."    Defendant, who was sitting in

the front passenger seat, then told Detective Wilson that the

cocaine was located in the center console.    After discussing an

acceptable price, defendant opened the center console lid and

removed a white paper towel.   The towel contained what appeared

to be both rock and powder cocaine.    At that point, defendant

exclaimed that the "shit is real good."    Detective Wilson

briefly inspected the cocaine and placed it in his pocket.

Defendant then stated that he could procure 18 ounces of cocaine

the following day and also asked the detective if he was

interested in purchasing heroin, ecstasy or marijuana.




                                                              A-5444-07T4
                                3

Detective Wilson gave defendant $900, which defendant refused to

count in the detective's presence, claiming that to do so would

be impolite.   He then placed the cash in his right pants pocket.

Before parting company, defendant and Detective Wilson exchanged

cell phone numbers.   Defendant again stated that he could be

called at any time if the detective wished to purchase large

amounts of cocaine.   Defendant and Detective Wilson shook hands,

and defendant exited the vehicle.

    As Featherstone and Detective Wilson drove away, defendant

called the detective by cell phone and complained that he had

been paid less than the agreed-upon amount of $1,000.   As a

result, Featherstone and Detective Wilson drove back to the

parking lot and located defendant near a pizzeria.   Detective

Wilson exited the vehicle, hugged the defendant good-naturedly

and handed him the outstanding $100.   Defendant assured the

detective that "everything is cool" before the detective

reentered Featherstone's car.   They drove to another location

where the two met with other back-up officers assigned to the

Task Force.

    At that time, Detective Wilson field-tested the suspected

cocaine, packaged it and turned the drugs over to his superiors.

The State Police subsequently analyzed the drugs, which weighed

approximately 27.60 grams.   Also following the first




                                                           A-5444-07T4
                                4

transaction, Detective Wilson received a photograph of defendant

from Somerset County authorities, thereby confirming the

identity of the person from whom he had purchased cocaine.

     On October 14, 2007, Detective Wilson telephoned the

defendant to arrange another purchase of drugs.   Defendant

inquired as to the quantity, and defendant agreed to sell the

detective three ounces of cocaine for $2,375 at the location of

the previous transaction.1

     Detective Wilson drove to the Kings Plaza parking lot in an

undercover vehicle and observed defendant standing alone.

Defendant approached the detective's car, entered it, engaged in

some friendly banter and then instructed him to park adjacent to

a blue vehicle parked in the center of the lot.   Defendant

exited the detective's car and walked toward the driver's side

of the blue car.   A young African-American male sat in the

driver's seat of the blue car.   Defendant reached inside the

open-driver's side window with his back turned to the detective.

He reentered the detective's car with three bags containing

white powder and rocks, which the detective believed to be

           In exchange for the drugs, Detective Wilson paid
cocaine.

defendant $2,700 in cash and $30 for "traveling expenses."


1
  A recording of the telephone conversation between defendant and
Detective Wilson was played for the jury at trial.



                                                            A-5444-07T4
                                 5

Defendant again inquired whether the detective intended to

purchase drugs from him in the future.   Detective Wilson

expressed his intent to contact defendant and that he had

"people lined up" who were willing to buy cocaine.

    Thereafter, Detective Wilson drove to a predetermined

location to meet with members of the backup team.     As with the

prior transaction, he debriefed his colleagues, packaged the

drugs and turned them over to a superior.     When analyzed by

personnel from the New Jersey State Police laboratory, the drugs

from the second transaction weighed approximately 2.9 ounces.

    Detective Wilson next met with defendant on November 4,

2005.   A third transaction involving the sale of three ounces of

cocaine for $2,750 occurred at the same location at

approximately 4:23 p.m.   When the sale was concluded, Detective

Wilson asked to purchase five ounces of cocaine.     Defendant

responded that he would have to "do the math" and then contact

the detective.   It appeared to the detective that defendant was

quite eager to conduct the next transaction, as evidenced by the

defendant's request that the detective provide him with a

specific date for the anticipated purchase.    Defendant added

that he could sell the detective whatever drugs he wanted.       In

response, Detective Wilson explained given the number of

clientele, he could at most handle five ounces of cocaine.




                                                            A-5444-07T4
                                6

    On November 17, 2005, Detective Wilson called defendant to

arrange the fourth and final purchase of cocaine.

Notwithstanding several delays, Detective Wilson arranged to

purchase five ounces of cocaine from defendant for $4,350.     On

December 7, 2005, defendant and Detective Wilson met at

approximately 1:00 p.m.   On this occasion, defendant was

accompanied by a female later identified as Lakrushon Lynch, who

drove a black Kia.   At the conclusion of this transaction,

Detective Wilson uttered the code phrase "shit looks good[,]"

which alerted a SWAT team as well as backup officers with the

Task Force positioned nearby to move in and arrest defendant.

The five ounces of cocaine defendant sold to the detective were

turned over to another detective for field testing.     Laboratory

testing confirmed that the powder was indeed cocaine.

    In January 2006, Lieutenant Katherine Shive of the

Hunterdon County Prosecutor's Office received a letter from

Lakrushon Lynch's defense attorney, Peter Abatemarco, that was

purportedly written by defendant.   Dated January 19, 2006, the

letter stated in part, "If you really thought that I would try

to put my business off on you to escape my punishment, it really

does hurt me because that's some lame shit for anyone to do.        I

can handle mine, please believe me."   Defendant also wrote: "Oh

yeah, my defense is 2C:2-12 (not saying it was yours)."




                                                            A-5444-07T4
                                7

    In his opening, defense counsel indicated that the defense

was entrapment, and defendant would testify.    At trial, against

counsel's advice, defendant elected not to testify.     However, to

establish entrapment, counsel offered additional witnesses.

Assistant Prosecutor Dawn Solari of the Hunterdon County

Prosecutor's Office testified regarding the disposition of

several charges against Featherstone in 2005.    Specifically, she

testified that Featherstone had been charged with second-degree

aggravated assault, third-degree possession of a weapon (a

paintball gun) for an unlawful purpose and fourth-degree

endangering.   Assistant Prosecutor Solari acknowledged that

Featherstone's status as a confidential informer was a

consideration in the State's offer to dismiss the more serious

counts of the indictment and to recommend a split sentence in

exchange for his guilty plea to fourth-degree endangering.

    Featherstone indicated that he first met defendant, who he

knew as "S," while the two were incarcerated together at the

Somerset County Jail.   Featherstone also acknowledged having

been convicted on previous occasions for issuing bad checks and

possession of drugs with the intent to distribute.     On cross-

examination, Featherstone claimed that, based on his

conversations with defendant while in the Somerset County Jail,

he concluded that defendant was willing to sell drugs to buyers




                                                            A-5444-07T4
                                8

in the Hunterdon County area.   Defendant also proffered the

testimony of Sharon O'Brien, his federal parole officer, who

disclosed that defendant was on federal parole following his

conviction for the federal crime of possession of a firearm by a

convicted felon.

    During the defendant's case, and over defendant's

objection, the State presented defendant's 1994 third-degree

drug charge to establish defendant's predisposition and rebut

the entrapment defense.   The judge then instructed the jury:

            The State has introduced evidence to
         demonstrate, if believed, that the defendant
         was not an innocent person who would not
         have committed the offense were it not for
         the inducements of the law enforcement
         officer and the informant and the agent.
         That in fact he was predisposed to commit
         the crime.

            Therefore, for this purpose and only for
         this purpose, the Court has permitted the
         State to introduce for your consideration,
         evidence of the defendant's previous
         conviction in 1994 of possession of a
         controlled dangerous substance with intent
         to distribute, third degree.

            Whether such evidence, along with other
         facts and surrounding circumstances, shows a
         predisposition on the part of the defendant
         to commit the offense is for you to
         determine. If you find that the defendant
         has been predisposed to commit the offense,
         even without the law enforcement officer
         and/or informant or agent's participation or
         inducement, then the defendant's
         participation was not the direct result of
         the officer's activity and the defense of


                                                          A-5444-07T4
                                9

         entrapment has not been proven and it is
         unavailable to him.

Ultimately, the jury convicted defendant.     Defendant now asserts

that the prior conviction was improperly admitted as there was

no proof of entrapment nor similarity between the proffered

prior offense and the offenses that were the subject of the

trial.

    Entrapment may be raised as a defense and requires a

showing that a person was induced or encouraged to commit an

offense by a law enforcement officer or person cooperating

with such officer, such as an informant, "[e]mploying methods

of persuasion or inducement which create a substantial risk

that such an offense will be committed by persons other than

those who are ready to commit it."     N.J.S.A. 2C:2-12a(2).

The burden is on defendant to establish entrapment by a

preponderance of the evidence.   N.J.S.A. 2C:2-12b; see State

v. Florez, 
134 N.J. 570, 583 (1994).

    The State may, in a unique exception to the prohibition

on propensity evidence provided in N.J.R.E. 404(b), introduce

evidence of other crimes committed by the defendant to

demonstrate that a defendant was predisposed toward committing

the crime in question and rebut the entrapment defense.    See

State v. Davis, 
390 N.J. Super. 573, 597 (App. Div.) ("When a

defendant seeks to establish entrapment, the State may rebut


                                                               A-5444-07T4
                                 10

that proof with evidence of predisposition of which similar

bad acts are probative."), certif. denied, 
192 N.J. 599

(2007).   The inherent danger in admitting other-crimes

evidence, however, is that "a jury, aware of other-crimes

evidence, may convict a defendant not on the evidence of the

specific crime at issue but because of the perception that the

defendant is a 'bad' person in general."   Not all evidence of

other crimes is admissible to rebut an entrapment defense;

"courts have tried to ensure that the probative worth of such

evidence when used to show predisposition will outweigh its

prejudicial effect by requiring that the prior convictions be

for crimes similar to the crime for which the defendant is

being prosecuted."   Gibbons, supra, 
105 N.J. at 77.

Therefore, there must be sufficient "similarity between the

'objects, methods, and particular mental states' as well as

the 'factual nexus between the crimes' so as not to mislead

the jury to focus on a defendant's general bad character."

State v. Cofield, 
127 N.J. 328, 334 (1992) (citing Gibbons,

supra, 
105 N.J. at 85).

    In addition, predisposition evidence ordinarily is

presented as rebuttal to actual evidence of entrapment.   As

observed by the United States Supreme Court, "if the

defendant seeks acquittal by reason of entrapment he cannot




                                                            A-5444-07T4
                                11

complain of an appropriate and searching inquiry into his

own conduct and predisposition as bearing upon that issue."

Sorrells v. United States, 
287 U.S. 435, 451, 
53 S. Ct. 210, 216, 
77 L. Ed. 413, 422 (1932).   In addition, we have

"previously found no error in presenting 404(b) evidence in

the State's case-in-chief when the defense of entrapment

                                           Davis, supra, 390
had been raised in defendant's opening."

N.J. Super. at 597 (citing State v. White, 
86 N.J. Super.
 410, 421 (App. Div. 1965); see also State v. Dolce, 
41 N.J.
 422, 434 (1964) (observing that whether the State may

introduce propensity evidence before the defendant "has

succeeded in getting some proof into the record in support

of his asserted claim of entrapment (in the opening, for

example), is questionable").

    Throughout the trial, defendant argued entrapment.     During

his opening, when he believed defendant was going to testify,

counsel asserted that defendant would claim entrapment.     After

defendant presented witnesses to establish the entrapment

defense, the State proffered defendant's prior drug charge.

Defendant followed through in his closing that the defense was

entrapment, and defendant was acquitted of one of the charged

offenses.   Defendant cannot now disclaim the defense on appeal

after it has proven unsuccessful, and the State was entitled to




                                                            A-5444-07T4
                                12

rebut defendant's entrapment by proffering defendant's prior

conviction of a similar offense.      Gibbons, supra, 
105 N.J. at
 76.

      We recognize, as do both parties, that entrapment is a

defense fraught with risks; it requires a concession that the

underlying criminal act has been committed.      Moreover, where

there is an understanding that defendant will testify and that

fact is made known to the jury, if defendant exercises his

constitutional right not to testify, that too diminishes the

viability of the defense.   Nevertheless, defendant pressed

forward with the theory, to no avail.      We are reluctant to allow

defendant to now disavow the viability of the defense and its

attendant risks.   That is what happened here, and we find no

basis for overturning the verdict.

      In its responding brief, the State raises the specter of

ineffective assistance of counsel.      That issue is not before us

on appeal, and any questions as to the propriety of counsel's

conduct or the strategies employed must await further review in

a different forum.    See R. 3-22.    We take no position on the

issue at this time.

      Affirmed.




                                                             A-5444-07T4
                                 13