On appeal from the Superior Court of New Jersey, Law Division, Union County, 98-12-1824-I.
Before Judges Wecker, Lisa and Fuentes.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2002
We find it appropriate to address the separate appeals of co-defendants Shawn L. Spivey and Niki Harrison in one opinion. We affirm both defendants' convictions.
A Union County grand jury returned a ten-count indictment charging both Spivey and Harrison on the first seven counts as follows: third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a controlled dangerous substance (cocaine in a quantity of half an ounce or more) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2) (count two); second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three); fourth-degree possession of a controlled dangerous substance (marijuana in a quantity over fifty grams), N.J.S.A. 2C:35-10(a)(3) (count four); third- degree possession of a controlled dangerous substance (marijuana in a quantity of one ounce or more) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11) (count five); third- degree possession of a controlled dangerous substance (marijuana in a quantity of one ounce or more) with intent to distribute, within 500 feet of a public park, N.J.S.A. 2C:35-7.l (count six); and second-degree possession of a firearm while in the course of committing or attempting to commit a narcotics offense, N.J.S.A. 2C:39-4.1 (count seven).
In addition, Spivey alone was charged on counts eight, nine and ten: second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count eight); third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5) (count nine); and fourth- degree resisting arrest, N.J.S.A. 2C:29-2(a). Count eight was dismissed at trial. The jury found Spivey guilty on all of the remaining counts. The same jury found Harrison guilty on counts one, three and seven.
Harrison was sentenced to concurrent five-year terms on two counts of possession with intent to distribute and a consecutive five-year term for possession of a firearm while in the course of committing the drug offenses.
Spivey received concurrent mandatory extended terms of eighteen years on counts three and six, see N.J.S.A. 2C:43- 7a(3), each with a nine-year period of parole ineligibility; a mandatory consecutive nine-year term on count seven, see N.J.S.A. 2C:39-4.1, with four years of parole ineligibility; and a five-year term on count nine with two years of parole ineligibility. Defendant's sentence on count seven was imposed consecutive to his sentences on counts three and six, and his sentence on count nine was consecutive to count seven as well as counts three and six. Thus defendant's aggregate sentence was thirty-two years with fifteen years of parole ineligibility.
On her appeal, Harrison presents these arguments:
POINT I THE JURY'S FINDING THAT DEFENDANT HAD CONSTRUCTIVE POSSESSION OF CO-3 DEFENDANT'S CONTROLLED DANGEROUS SUBSTANCES AND FIREARMS WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II THE JURY'S FINDING THAT DEFENDANT HAD INTENT TO DISTRIBUTE CO- DEFENDANT'S CONTROLLED DANGEROUS SUBSTANCE WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III THE TRIAL COURT ERRED IN NOT ALLOWING CROSS EXAMINATION ABOUT THE PROBABLE CAUSE FOR THE SEARCH WARRANT.
Our review of the record and the briefs satisfies us that all of Harrison's arguments are without merit, and we ...