Judges Coburn, Axelrad and Bilder.
The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall).
Following a jury trial defendant Joel Williams was found guilty of conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, (Count 1); possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count 2); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count 3); and possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count 4). Counts 1, 2, and 3 were merged into count 4, possession of cocaine with intent to distribute within 1000 feet of school property, for which he was sentenced to a custodial term of four years with a minimum of three years. Appropriate fines, penalties, and driver's license suspension were imposed.
The convictions arose from a purchase of cocaine made in the course of a "buy- bust" operation by undercover investigators of the Camden County Prosecutor's office. Immediately upon the completion of the purchase, back-up officers arrived and arrested the men involved in the sale. The direct testimony of the investigators, corroborated by recovery of the marked money used for the purchase and the recovery of cocaine in the sellers' "stash", if believed by the jury, was sufficient to prove defendant's guilt beyond a reasonable doubt.
On appeal defendant makes the following contentions:
THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
THE POLICE OFFICER'S TESTIMONY THAT THE DEFENDANTS WERE WORKING "TOGETHER" EXCEEDED THE BOUNDS OF PROPER LAY OPINION TESTIMONY AND EMBRACED THE ULTIMATE ISSUE OF DEFENDANT'S GUILT OR INNOCENCE ON THE CONSPIRACY CHARGE
THE COURT ABUSED ITS DISCRETION IN SUBSTITUTING JUROR NUMBER TWO ABSENT COMPELLING CIRCUMSTANCES ONCE DELIBERATIONS HAD COMMENCED, THUS VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY (NOT RAISED BELOW)
THE SENTENCE WAS MANIFESTLY EXCESSIVE IN THAT DEFENDANT SHOULD HAVE RECEIVED THE MINIMUM PERIOD OF IMPRISONMENT FOR A THIRD DEGREE OFFENSE UNDER THE SCHOOL ZONE LAW
The principal issue on this appeal is the propriety of removing a juror during the course of deliberations and replacing him with an alternate. To understand the issue in context requires knowledge of the details of the State's version of the events that transpired at the time of the alleged drug transaction.
According to the investigators, they drove to a street corner and saw three men, later identified as defendant Williams and co-defendants Monroe McCloud and Noah Xavier *fn1, standing there, apparently engaged in a conversation. One of the investigators, Kee, made eye contact with McCloud and began to get out of the car. McCloud approached and told the driver to move away from the corner so as not to be so obvious. The car was moved and Kee began to walk toward Williams and Xavier. Xavier ran to an abandoned house. Williams told Kee where to stand and wait for Xavier. After a momentary delay Xavier came out of the house and waved for Kee to come in with him. After Kee was in the house and the door was closed, Xavier asked what he ...