On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Shebell, Long and Landau.
The opinion of the court was delivered by
Defendant, Manny Tarver, on October 24, 1990, was indicted on the following charges: third degree possession of a controlled dangerous substance, namely cocaine, N.J.S.A. 2C:35-10a(1) (count one); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3) (count two); third degree possession of a controlled dangerous substance, namely cocaine, with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-6 (count four). There were several pretrial motions, including the State's motion to dismiss count four, charging defendant with employing a person seventeen years of age or younger in a drug distribution scheme, which the Judge dismissed. In September 1991, defendant was tried to a jury. The jury found defendant guilty on the three remaining counts.
Defendant was sentenced on October 21, 1991. The Judge merged counts one and two into count three, committed defendant to the custody of the Department of Corrections for five years, with a mandatory period of parole ineligibility of three years.
A motion for new trial was heard on November 4, 1991. Defendant asserted that the court's charge on whether the property was being used for school purposes was in error. Defendant further argued that there was insufficient evidence to sustain the conviction of possession of a controlled dangerous substance within 1000 feet of a school zone. The Judge denied defendant's motion.
Defendant appeals to this court asserting the following legal arguments in his brief on appeal:
POINT I: THE STATE PRODUCED INSUFFICIENT EVIDENCE FOR A JURY TO CONCLUDE THAT THE PURPORTED "SCHOOL PROPERTY" HEREIN WAS "USED FOR SCHOOL PURPOSES" WITHIN THE MEANING OF N.J.S.A. 2C:35-7.
POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS CHARGE TO THE JURY AS TO THE REQUISITE LAW AND FACTS CONCERNING N.J.S.A. 2C:35-7, IN THAT IT EFFECTIVELY RELIEVED THE STATE OF ITS BURDEN OF PROOF ON THIS COUNT OF THE INDICTMENT.
POINT III: THE TRIAL JUDGE COMMITTED PLAIN ERROR IN PERMITTING THE POLICE OFFICER TO TESTIFY THAT HIS SUSPICIONS CONCERNING DEFENDANT'S ALLEGED GUILT WAS [SIC] THE RESULT OF INFORMATION HE RECEIVED WHICH CONSTITUTED DOUBLE HEARSAY CONTRARY TO EVIDENCE RULE 63 AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION. .
POINT IV: DEFENDANT'S SENTENCE REFLECTING A MANDATORY PAROLE DISQUALIFIER IMPOSED PURSUANT TO N.J.S.A. 2C:35-12 MUST BE VACATED IN THE ABSENCE OF THE PROSECUTOR HAVING STATED ON THE RECORD HIS REASONS FOR NOT WAIVING THE MANDATORY MINIMUM TERM. .
POINT V: THIS COURT SHOULD EXERCISE ITS POWER OF ORIGINAL SENTENCING JURISDICTION, R. 2:10-5, AND SENTENCE DEFENDANT TO NO MORE THAN A PRESUMPTIVE FOUR YEAR TERM.
The facts adduced at trial are as follows. On December 28, 1989, at approximately 9 p.m., Officer Grabowski of the Newark Police Department received a telephone call at the West District headquarters from an unidentified individual that informed him of drug activities at a certain location. The informant gave a description of two black males who were on the corner of Melrose and 18th Avenue selling narcotics. The informant also described the clothes that the two were wearing.
Grabowski responded to this area with Officer William Funk, a veteran of the Newark police force for seven years. They parked their unmarked vehicle on Melrose Avenue about one hundred feet from the corner of 18th Avenue. Officer Funk estimated that there was forty or fifty feet between where they were parked and the two individuals on the corner. No people were walking on Melrose Avenue. Lighting was from a Chinese restaurant on the corner, that was open and had outside lights.
The officers observed two individuals who matched the description given on the telephone. According to Funk, they were in his view for one half-hour. While still in their parked vehicle, the officers saw an unidentified male, wearing a beige parka, approach one of the individuals who was later identified as defendant, Manny Tarver. A conversation between defendant and the unidentified male took place, after which defendant "motioned" his companion, later arrested with defendant, to go across the street. After being directed by defendant, the companion ran across the street, reached under a parked green Datsun and retrieved a small black object. He took something out of the object and ran back to defendant.
At the time, Officer Funk could not identify what was in the black container. He testified that the companion was acting "furtive" and "secretive." Officer Funk's suspicion that this individual had gotten some drugs from under the Datsun was based on the following:
Well, by the description we were given of the two suspects on the corner, the corner which is a known narcotics lookout, the complaints from the citizens and the church on the corner, and from when he went under the back tire of the car that was parked for no apparent reason other than to retrieve something.
After retrieving the container, the companion handed the item to defendant, who, in turn, handed it to the unidentified male. According to Officer Funk, he saw the unidentified male give what "appeared to be" money to defendant and his companion.
The officers then drove to where these three individuals were, at which time, defendant and his companion started to walk away. Officer Grabowski stopped defendant and his companion, while Funk went to the vehicle, where he had seen the companion go during the alleged drug transaction, and retrieved the black container. He opened it, and found "eight orange cap vials of suspected cocaine."
The defendant and his companion were placed under arrest and read their rights. The officers handcuffed the two and put them in the police vehicle. The officers then drove easterly on 18th Avenue, looking in store windows in a futile effort to apprehend the unidentified male who had allegedly purchased the drugs. Defendant and his companion were then transported to the West District headquarters. Defendant's companion was identified as Sean Abraham, a juvenile. Defendant had seventy-three dollars in his possession and Sean Abraham had twenty dollars.
At trial, Officer Funk identified a map of the area, entitled "Thousand Feet Drug Free Zone Map Newark, New Jersey," and marked the spot where defendant's alleged drug sale took place. The Officer testified that Essex County Vocational School or Irvington Tech was within 1,000 feet of the drug sale. However, on cross-examination of Officer Funk, the following was revealed:
DEFENSE COUNSEL: You don't know what occupied that building as of December 28th, 1989?
OFFICER FUNK: According to the map?
DEFENSE COUNSEL: No, I'm asking you in accordance with your own personal knowledge?
DEFENSE COUNSEL: Now, your report, does it not say, it describes it as a vocational school.
Look at your report, sir, the second page. It describes it as the Essex County Vocational School.
Now, you can't tell me one way or another as of December 28th, 1989 whether that building was in fact an adult ...