STATE OF NEW JERSEY v. ADRIAN KING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6952-03T46952-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIAN KING,

Defendant-Appellant.

____________________________________________________________

 

Submitted March 28, 3006 - Decided April 12, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Somerset County, 02-01-67-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Virginia M. Lincoln, Designated

Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (Jamin Cooper, Assistant

Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant, Adrian King, guilty of first degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1)(Count 1); and third degree possession of heroin, N.J.S.A. 2C:35-10a(1)(Count 2). The trial judge merged the second count into the first and sentenced defendant to imprisonment for fifteen years with five years of parole ineligibility.

The events preceding King's arrest unfolded on January 8, 2001, when Miguel Moran was arrested in Montgomery Township with a large quantity of heroin. Moran agreed to assist the police by calling his supplier, King, in New York, and arranging for King to bring a large quantity of heroin to Somerset County. He made a series of calls to King. The police listened in and recorded the calls with Moran's consent, and, they said, with authorization from the Prosecutor. King agreed to bring 200 grams of heroin to Moran at the Quality Inn Hotel in Franklin County. They agreed on a price of $17,000, and further agreed that King would bring the heroin to room 107.

Around 6:15 p.m. on January 8, a car with New York plates arrived at the hotel. King, who fit the description given by Moran, and another man, Gulim Karimi, got out of the car and entered the hotel. The driver parked the car. King and Karimi went to room 107, knocked, and were let in by an undercover officer wearing an audio transmitting device that recorded the transaction and transmitted the sound to the adjacent room occupied by additional law enforcement officers. Moran was also present. King and Karimi acknowledged they were there to sell heroin, and King asked the detective if he was going to sample it. The officers in the adjacent room came in, "arrested" everybody, and found that Karimi was in possession of a large quantity of packaged heroin. At police headquarters, after receiving his Miranda warnings, King said that he thought the "stuff" was in a car behind him.

On appeal, King offers the following arguments:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION (Not Raised Below).

POINT II

THE TRIAL COURT ERRED IN FAILING TO EXCLUDE THE EVIDENCE OF THE TELEPHONE CONVERSATIONS AS THE STATE FAILED TO PROVE THE POLICE HAD PROPER AUTHORIZATION.

POINT III

THE LABORATORY CERTIFICATE SHOULD HAVE BEEN EXCLUDED BECAUSE THE STATE DID NOT ESTABLISH A CHAIN OF CUSTODY FOR THE ALLEGED NARCOTICS (Not Raised Below).

POINT IV

THE TRIAL COURT IMPROPERLY CONSIDERED AN AGGRAVATING FACTOR IN IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND IMPROPERLY REFUSED TO CONSIDER SENTENCING THE DEFENDANT ONE DEGREE LOWER.

After carefully considering the record and briefs, we are satisfied all of King's arguments, including those set forth in his supplemental pro se brief, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.

King's arguments with respect to the alleged inadequacy of his attorney concern matters that may well have involved tactical and strategic considerations. Therefore, in accordance with our general policy, we will not entertain those arguments at this time, leaving them instead for a post-conviction hearing, should defendant pursue that course. State v. Preciose, 129 N.J. 451, 460-62 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)("[D]efendant must develop a record at a hearing at which counsel can explain the reasons for her conduct and inaction and at which time the judge can rule upon the claims including the issue of prejudice.").

King did not move before trial to suppress the tapes of the telephone conversations on any ground, let alone on the ground that the interception was not authorized by the County Prosecutor. During trial, however, he did object to their admission because the State did not have an authorization signed by the County Prosecutor. The judge overruled the objection because the State's evidence indicated that the authorization had been oral in this case and had come from the County Prosecutor through an Assistant Prosecutor. The statute does not require written authorization, and authorization may be provided by either the County Prosecutor or his designee. N.J.S.A. 2A:156A-4. Absent a timely motion to suppress, we will not interfere with the judge's discretionary admission of the evidence on this record. Moreover, even if the evidence had been admitted improperly, we perceive no prejudice to King since the other evidence of his guilt is quite overwhelming.

Although King did not object to admission of the laboratory certificate, he argues on appeal that the judge erred in admitting it because there was a break in the chain of custody. This argument is based on the fact that eleven days passed between the time the drugs were placed in a temporary locker and the time they were placed in the evidence vault at the Prosecutor's office. We perceive no break in the chain of evidence. Furthermore, the issue in this case was never whether the material seized was heroin, but whether King possessed the heroin. The thrust of King's argument appears to be that his counsel mishandled this issue in the trial court. If so, he may raise that matter as part of his application for post-conviction relief. However, given the evidence in this case, it is difficult to imagine how King will be able to persuade a judge that any deficiency in his representation caused him prejudice.

King received the presumptive sentence for his convictions, and he has failed to show in any respect that the judge erred in so disposing of the case.

 
Affirmed.

(continued)

(continued)

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A-6952-03T4

April 12, 2006