On appeal from Superior Court of New Jersey, Law Division, Passaic County.
J.h. Coleman, Brody and Skillman. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
Defendant was tried before a jury for possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(12), (Count One); possession of marijuana with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7, (Count Two); distribution of marijuana, contrary to N.J.S.A. 2C:35-5a(1) and -5b(12), (Count Three); and distribution of marijuana within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7, (Count Four). The jury found defendant guilty on Counts One and Two and not guilty on Counts Three and Four. Defendant was sentenced to a custodial term of three years with one year of parole ineligibility on Count Two. On Count One, defendant was sentenced to a concurrent one-year custodial term. Additionally, statutory penalties were imposed on each count.
On this appeal, defendant contends that:
I THE TRIAL COURT ERRED BY NOT EXERCISING THE DISCRETION ALLOWED IT BY RULE 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION.
II THE TRIAL COURT ERRED BY NOT EXERCISING THE DISCRETION ALLOWED IT BY RULE 3:20-1 TO SET ASIDE THE VERDICT OF THE JURY AND ORDER A NEW TRIAL, AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THEREFORE A MANIFEST DENIAL OF JUSTICE.
Defendant's contention that his motion for an acquittal should have been granted requires us to review the evidence. Two narcotics detectives from the City of Passaic Police Department conducted a narcotic surveillance on August 26, 1987 in the area of Third Street and Mercer Street. Detectives Robert Feliciano and William Paranto set up surveillance in that area by parking an unmarked police vehicle near a dumpster. Detective Feliciano saw a black male wearing a white T-shirt and red sweat pants, later identified as defendant, standing on the corner of Mercer and Third Streets when they arrived at approximately 8:15 p.m.
At about 8:25 p.m. a blue Chevy with two white males came down Third Street and made a "U" turn at Mercer Street and stopped in the area where the black male wearing the white T-shirt and red sweat pants was standing. Feliciano testified that he saw the black male reach into the right side of his sweat pants and remove "what appeared to be a small little baggie and hand it through the window" of the Chevy. The passenger in the Chevy, later identified as Daniel Dabal, appeared to have handed paper money to the black male standing outside the car. The Chevy then drove north on Third Street. The black male then walked south on Third Street to number 113 where he sat on the trunk of a car. Detective Feliciano made his observations from a distance of between 75 feet to 150 feet without the assistance of binoculars.
After the Chevy left the area, Detective Feliciano notified his partner Detective Paranto who remained in the driver's seat of the unmarked police vehicle. They followed the Chevy north on Third Street and stopped it within a few blocks. Detective Feliciano went to the passenger side of the Chevy and demanded that the passenger "Give it up." The passenger took off his sneaker and shook a small plastic baggie of marijuana into the detective's hand. The passenger also had a small package of
easy wider rolling paper. The passenger was arrested and transported to police headquarters ...