On appeal from the Superior Court, Law Division, Passaic County.
Before Judges Villanueva, Wefing and Bilder. The opinion of the court was delivered by Bilder, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by BILDER, J.A.D. (retired and temporarily assigned on recall).
Following a jury trial, defendant Almonte Jackson was found guilty of possession of cocaine, N.J.S.A. 2C:35-10a(1), possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3), and possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The simple possession and distribution convictions were merged into that for possession with intent to distribute within 1000 feet of school property for which defendant was sentenced to a custodial term of 5 years with a minimum of 3 years. Appropriate fines, penalties, and driver's license suspension were also imposed.
About 2:30 a.m. on October 10, 1991, while on routine patrol, members of the Paterson Narcotics squad saw a male, later identified as defendant, hand an object to a female. Because it looked like a drug transaction to the two detectives, they pulled their unmarked car across the curb where the two were standing to investigate; the woman walked one way and the man turned as if to walk away in the other direction. The officers stopped the defendant and in his left hand found a piece of brown paper containing 9 pieces of crack cocaine.*fn1 In his right hand was $8 in cash. The incident took place within 1000 feet of School #6.
In his brief on appeal defendant makes the following contentions:
POINT I BECAUSE TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN CONTRAVENTION OF HIS CONSTITUTIONAL RIGHTS, ENTITLING HIM TO A REMAND FOR A SUPPRESSION HEARING. (Not Raised Below).
POINT II THE TRIAL COURT ERRED IN PERMITTING DETECTIVE HOWE TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS SINCE HOWE DID NOT MEET THE QUALIFICATIONS REQUIRED OF AN EXPERT AND INTERPRETATION OF THE FACTS IN THE CASE DID NOT REQUIRE SPECIALIZED EXPERTISE ON NARCOTICS TRAFFICKING. (Partially Raised Below).
POINT III DEFENDANT'S RIGHT TO DUE PROCESS OF THE LAW WAS DENIED BECAUSE OF THE OVERWHELMING PREJUDICIAL EFFECT OF PERMITTING THE ARRESTING OFFICER, DETECTIVE HOWE, TO TESTIFY AS BOTH A FACT WITNESS AND AS AN EXPERT ON THE ISSUE OF INTENT TO DISTRIBUTE COCAINE.
POINT IV THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS TWO AND THREE MUST BE VACATED. (Not Raised Below).
POINT V THE RULING THAT THE TESTIMONY OF DEFENDANT COULD BE IMPEACHED WITH HIS PRIOR CRIMINAL CONVICTIONS FOR THEFT OFFENSES COMMITTED IN 1978, 1980 AND 1982, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT VI THE CUSTODIAL TERM IMPOSED FOR THIS OFFENSE WAS UNSUPPORTED BY THE STATUTORY AGGRAVATING AND MITIGATING FACTORS FOUND, AND SEVERAL APPLICABLE MITIGATING FACTORS WERE NOT CONSIDERED. THIS TERM SHOULD BE MODIFIED ON APPEAL.
Defendant contends the seizure of the drugs was the product of an illegal search and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Because no motion was made to suppress the seizure, defendant raises the issue in the context of ineffective assistance of counsel - the failure to move to suppress amounted to ineffective representation such as deprived him of his sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, ...