On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-09-0983.
Before Judges Pressler, Ciancia and Parker.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2003
This appeal addresses the trial court's duty to instruct the jury on the State's obligation to prove identification even when such a charge was not requested. On the facts presented, the absence of such an instruction constitutes plain error.
Following a jury trial, defendant Joseph Davis 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); possession of cocaine within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7; distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(3); and distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7.
For purposes of sentencing, all the convictions merged into the third-degree offense of distributing cocaine within 1000 feet of school property.*fn1 Defendant was extended-term eligible by virtue of his criminal record. N.J.S.A. 2C:43-6f. He was sentenced to an eight-year term of imprisonment with four years of parole ineligibility. Appropriate fees and penalties were also imposed.
On appeal defendant contends:
WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION, THE TRIAL COURT ERRED BY FAILING TO PROVIDE THE JURY WITH AN INSTRUCTION ON IDENTIFICATION. THE TRIAL COURT COMPOUNDED THE POTENTIAL FOR PREJUDICE BY FAILING TO CAUTION THE JURY CONCERNING POLICE POSSESSION OF DEFENDANT'S PHOTO, INCLUDING TESTIMONY THAT POLICE KNEW DEFENDANT PRIOR TO HIS PRESENT ARREST. THESE ERRORS COMBINED TO DENY DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const., Amends. VI and XIV; N.J. Const. (1947), Art. I, pars. 1, 10. (Not Raised Below)
THE DEFENDANT'S MANDATORY EXTENDED TERM SENTENCE OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY FOR DISTRIBUTION OF A MINUSCULE AMOUNT OF COCAINE WITHIN 1,000 FEET OF A SCHOOL, IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN ACCORDANCE WITH THE CODE OF CRIMINAL JUSTICE.
We find merit in defendant's contention that the trial court's failure to instruct the jury on identification constituted plain error. R. 2:10-2. Because that error requires a reversal of defendant's judgment of conviction, we do not address the other issues raised.
For present purposes the facts may be summarized as follows. Defendant allegedly sold drugs to a federal undercover officer of the Drug Enforcement Agency (DEA). Prior to that occasion the officer had never met the defendant. Backup officers attempted to arrest the drug seller, but he fled on foot. About twenty-five minutes after the sale the DEA officer was shown a single photograph by a local detective which he identified as depicting the ...