STATE OF NEW JERSEY v. GREGORY TIMBERLAKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2589-04T42589-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY TIMBERLAKE,

Defendant-Appellant.

_____________________________

 

Submitted March 1, 2006 - Decided July 14, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Atlantic

County, Indictment No. 03-12-2375.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C.

Kazer, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for respondent

(John Henry Flammer, III, Assistant

County Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant Gregory Timberlake was tried before a jury and convicted of third-degree possession of heroin, in violation of N.J.S.A. 2C:35-10a; third-degree distribution of heroin, in violation of N.J.S.A. 2C:35-5a(1); and second-degree distribution of heroin within a public housing complex, in violation of N.J.S.A. 2C:35-7.1. After merging the two third-degree convictions with the second-degree distribution within a public housing complex, the court sentenced defendant to a term of ten years, with five years of parole ineligibility. The court also imposed the mandatory fines and penalties.

We summarize the following salient facts from the evidence presented at trial. Defendant sold sixteen bags of heroin for $220 to Joseph Shumsky, a drug user who was working as a police informant. The illicit drug transaction took place in defendant's apartment, located at 1520 Caspian Place in the Stanley Homes Village public housing complex in Atlantic City. Shumsky had been in defendant's apartment on at least sixty prior occasions.

As part of his arrangement with law enforcement, Shumsky agreed to wear a "body wire," an electronic audio transmitter that permitted the police to monitor and record Shumsky's conversation with defendant. The police paid Shumsky $100 to complete the transaction, and gave him $280 to buy thirteen-bag bundles of a particular heroin known by the street name of "Philadelphia." Shumsky was searched before departing to ensure he was not carrying any contraband.

At around 9:00 p.m. on the date of the transaction, Investigator James Scoppa, Jr. drove Shumsky to the vicinity of defendant's apartment in an undercover police car. Scoppa dropped Shumsky off approximately 150 yards from the housing complex, and Shumsky walked the rest of the way. Although Scoppa lost sight of Shumsky when he walked inside, he was able to monitor him through the audio transmitter.

Shumsky entered defendant's apartment through a rear door. He was let inside by "Missy," defendant's girlfriend. After engaging in a brief conversation with Missy, Shumsky met with defendant who told him that he only had "New York" heroin. Shumsky purchased sixteen bags of this heroin for $220. Throughout the time Shumsky was inside the apartment defendant, Missy and a third individual, identified as Greg, were all present and spoke with defendant.

The entire transaction lasted approximately fifteen minutes. At around 9:22 p.m., Scoppa observed defendant walk out of the housing complex and back to the unmarked police car. Shumsky told Scoppa what had occurred, including that he was only able to buy sixteen bags of "New York" heroin, which is sold in slightly larger packaging. Later that same night Shumsky also gave a recorded account of the events that transpired in defendant's apartment.

A laboratory analysis conducted by the State Police confirmed that the sixteen bags Shumsky purchased from defendant contained a total of .44 grams of heroin. Defendant was also known to the police by the name of "Gregory Gibson." A motor vehicle search revealed that an individual with this name resided at 1520 Caspian Place. Shumsky also selected defendant's photograph from a police photographic array as the individual who had sold him the heroin. The police paid Shumsky an additional fifty dollars to make this out-of-court identification. At the time he purchased the heroin, Shumsky did not have any pending criminal charges. He was not paid for his court appearance.

Against these facts, defendant now raises the following arguments.

POINT ONE

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE THE MODEL JURY CHARGE ON POLICE PHOTOGRAPHS. (Not Raised Below)

POINT TWO

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE THE JURY AN AMELIORATING INSTRUCTION CONCERNING INVESTIGATOR SCOPPA'S TESTIMONY THAT HE KNEW THE DEFENDANT BY "ANOTHER NAME." (Not Raised Below)

POINT THREE

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT IN ASSESSING THE CREDIBILITY OF JOSEPH SHUMSKY IT MUST TAKE INTO CONSIDERATION THE PAID CONFIDENTIAL INFORMANT AGREEMENT THAT MR. SHUMSKY ENTERED INTO WITH THE PROSECUTOR'S OFFICE. (Not Raised Below)

POINT FOUR

THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW. (Not Raised Below)

POINT FIVE

IMPOSITION OF THE TEN (10) YEAR BASE CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION ON COUNT THREE FOR SECOND DEGREE DISTRIBUTION OF HEROIN WITHIN A PUBLIC HOUSING ZONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

A

IMPOSITION OF A BASE SENTENCE IN EXCESS OF THE THEN EXISTING PRESUMPTIVE SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

B

IMPOSITION OF A SENTENCE IN EXCESS OF THE THEN EXISTING PRESUMPTIVE SENTENCE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

Defendant's arguments attacking his conviction lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In the interest of clarity, we note that all of these arguments are raised for the first time on appeal, and are therefore reviewed under the plain error standard. R. 2:10-2.

With respect to the sentence imposed by the court, the trial court found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1a, and no mitigating factors, N.J.S.A. 2C:44-1b. Because the court imposed a sentence above the seven-year presumptive term in effect at the time, we are compelled to remand the matter for a new sentencing hearing for the court to apply the guidelines articulated by the Supreme Court in State v. Natale, 184 N.J. 458, 481-82 (2005).

Defendant's conviction is affirmed. The matter is remanded for re-sentencing. We do not retain jurisdiction.

 

Shumsky identified the voices of these three individuals when the audio recording of the transaction was played to the jury at trial.

(continued)

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A-2589-04T4

July 14, 2006