STATE OF NEW JERSEY v. MUHAMMAD COLES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0474-05T40474-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUHAMMAD COLES,

Defendant-Appellant.

________________________________

 

Submitted March 14, 2007 - Decided June 28, 2007

Before Judges Fuentes and Baxter.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-10-3195.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gilbert G. Miller,

Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Sara A. Friedman,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Tried to a jury, defendant Muhammad Coles was convicted of two counts of third-degree possession of crack cocaine and heroin, N.J.S.A. 2C:35-10a(1), and one count of third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5a(1). The court sentenced defendant to an aggregate mandatory extended term of nine years, with four years of parole ineligibility pursuant to N.J.S.A. 2C:43-6f. The court also imposed the statutorily required fines and penalties.

We gather the following facts from the evidence presented at the trial.

Acting on information received from an undisclosed source, the Essex County Sheriff's Department established a surveillance location at an empty lot on Amherst Street in East Orange. From this vantage point approximately 120 feet away, Essex County Deputy Sheriff, Detective Stanley Garnes, observed an African American woman approach defendant and then engage in a brief conversation. Although Garnes was too far away to hear the content of what was said, he observed defendant walk "a couple of feet away" to a nearby tree, retrieve a brown paper bag from the base of the tree, and remove an unknown object or objects from the bag. Defendant placed the bag back at the base of the tree, and walked over to where the woman was still standing. Defendant then handed the woman what was in his hand, in exchange for currency.

Based on his training and experience, Garnes characterized what he had seen as a "hand-to-hand;" that is, a street-level illicit drug transaction. Garnes immediately radioed the four backup officers, and provided them with a physical description of both defendant and the alleged buyer; the direction the buyer had taken after the buy; and the location of the brown bag.

Defendant was subsequently arrested. The police also found the brown bag at the base of the tree. The bag contained forty-one vials of crack cocaine and ten glassine bags of heroin. The cocaine vials had either green or black caps; the heroin bags were stamped with the words "best buy" in red ink. Defendant had $334 on his person, consisting of seven $20 bills, eight $10 dollar bills; eleven $5 bills; and fifty-nine $1 bills.

As part of its case in chief, the State presented the testimony of Detective Reginald Holloway, whom the trial court qualified as an expert witness in the field of street-level drug transactions. Based on the manner the drugs were packaged, the location of the "stash" at the base of the tree, the quantity of the drugs seized, as well as the amount and denomination of the currency found on defendant's person, Holloway opined that the drugs were intended for distribution.

Against this record, defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED IN REFUSING TO REQUIRE THE STATE TO DIVULGE THE LOCATION OF THE SURVEILLANCE, DEPRIVING DEFENDANT OF HIS RIGHT TO CONFRONTATION.

POINT II

DEFENDANT WAS DENIED HIS CONSITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNEL AT TRIAL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO APPLY FOR THE SURVEILLANCE LOCATION ON THE BASIS OF NEED. U.S. CONST., AMEND. VI.

POINT III

THE TRIAL COURT ERRED IN REFUSING TO ORDER THE PROSECUTOR TO PROVIDE DISCOVERY CONCERNING DEFENDANT'S "CONDITION" FOLLOWING HIS ARREST.

POINT IV

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL OR A NEW TRIAL.

POINT V

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm. We are satisfied that defendant's arguments in Points IV and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). With respect to Point I, we are satisfied that the trial court properly denied defendant's pretrial motion seeking to disclose the exact location of the surveillance point. The right to keep this information confidential is a statutory privilege. N.J.R.E. 515. Under State v. Garcia, 131 N.J. 67, 80 (1993), disclosure is warranted only if the trial court finds that "the information sought is relevant and helpful to the defense or essential to a fair determination of the case."

Here, the evidence against defendant was overwhelming and essentially unrelated to the exact location of the surveillance operation. The State's description of the location as being 150 feet from where defendant was standing, gave defense counsel sufficient information to challenge the credibility of the officer, without compromising the public interest served by preserving the privilege. Cf. State v. Zenquis, 131 N.J. 84, 89 (1993) (where the Supreme Court emphasized that the case against defendant "turned almost exclusively on [the surveillance officer's] testimony").

The ineffective assistance of counsel argument raised in Point II cannot be addressed within the four corners of this record. Thus, without expressing any views as to the merit of this argument, we are satisfied that this issue is best raised in the context of a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

Finally, regarding defendant's argument in Point III, we agree with the State, that the discovery sought by defense counsel with respect to defendant's post-arrest physical condition was not relevant to any of the charges upon which defendant was convicted.

 
Affirmed.

The original indictment also charged defendant with third-degree possession of cocaine and heroin with intent to distribute, within 1,000 feet of school property, N.J.S.A. 2C:35-7. The trial court dismissed this charge on the State's pretrial motion.

The record incorrectly states "seven $20 bills and eight $20 bills."

(continued)

(continued)

6

A-0474-05T4

June 28, 2007