On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-12-0659.
Before Judges Kestin, Cuff and Axelrad.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 29, 2003
Following a jury trial, defendant was convicted of third degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count One); and second degree distribution of CDS within 500 feet of a public housing facility, contrary to N.J.S.A. 2C:35-7.1 (Count Two). Defendant was sentenced to a flat seven-year term on Count Two, and a four-year term on Count One, which the trial judge then merged with Count Two. The appropriate fines, fees, assessments, penalties, and suspension of driving privileges were also imposed.
On appeal, defendant raises the following issue:
THE DEFENDANT'S CONVICTION ON COUNT TWO IS CONSTITUTIONALLY DEFICIENT AND MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, AN ELEMENT OF THIS OFFENSE, THAT DEFENDANT DISTRIBUTED THE CDS"WITHIN 500 FEET OF A PUBLIC HOUSING FACILITY WHICH IS OWNED BY OR LEASED TO A HOUSING AUTHORITY ACCORDING TO THE'LOCAL REDEVELOPMENT AND HOUSING LAW,' P.L. 1992, c. 79 (C. 40A:12A-1 et seq.)...." (N.J.S.A. 2C:35-7.1; EMPHASIS ADDED). THEREFORE, THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR IN NOT GRANTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 10.
Our review of the record reveals that the State produced proof, sufficient in quality and quantity, for the jury to find that defendant distributed cocaine within 500 feet of a public housing facility. Therefore, we affirm.
Defendant does not challenge the finding that she distributed cocaine; we concentrate on the evidence produced by the State to establish that the site of the distribution was proximate to a public housing facility. The trial record reveals that on September 6, 2001, defendant resided at 192-94 Victor Street, an apartment building in Franklin Township, Somerset County. Cynthia Crum, a confidential informant, stood in front of the building. She was accompanied by Special Agent Gregory Hilton of the Drug Enforcement Administration. Crum waved to defendant and asked her to come downstairs.
When defendant appeared, Crum turned to Agent Hilton and asked,"three for fifty?" When defendant asked Hilton what he needed, he responded"three," which meant three bags of cocaine. Defendant took out a set of keys and entered a vehicle which was parked directly in front of the building. Defendant leaned over the center console and pulled out a clear, plastic sandwich bag which contained several smaller bags of a white powdery substance. Defendant left the vehicle and proceeded to the doorway of her apartment where she exchanged the bags containing cocaine for $50.
Officer Michael Price of the Franklin Township Police Department testified that the transaction occurred in an area within 500 feet of the Parkside Public Housing Facility, a public housing facility. The officer also identified a map, which depicted the area surrounding the Parkside Public Housing Facility.
DeWayne Cruse, the Executive Director of the Franklin Township Housing Authority, testified that the Parkside Public Housing Facility is a low income housing facility owned by the United States Department of Housing and Urban Development. The facility also receives funding from the State of New Jersey. He stated that he was responsible for the management of"a hundred units of public housing, 60 family[, forty] elderly, [and] 115 units of section eight housing." The section eight housing is"scattered site public housing."
Using the map, he stated that the Parkside Public Housing Facility is located"[u]p and down Parkside Street and on Mark and Victor Street[s]." Forty units of housing for the elderly are located on Victor, Mark and Pershing Streets. Other units of public housing are located on Parkside and Fuller Streets. The building in which defendant resided was not part of the Parkside Public Housing Facility but was within 500 feet of it.
At the conclusion of the State's case, defendant moved for a judgment of acquittal. She argued that the description of the Parkside complex fit neither the description of public housing contained in N.J.S.A. 40A:12A-1 nor that in N.J.S.A. 2C:35-7.1.
Defendant contended that the map may indicate no more than an area designated for public housing for various segments of the population and different financial models, whereas N.J.S.A. 2C:35-7.1 contemplates a building or series of structures owned by or leased to a local public housing authority and occupied by persons of low income. The motion was denied. On appeal, defendant argues that the prosecutor failed to submit proof that the housing was owned by or leased to a local housing authority in accordance with law. Stated differently, defendant contends that the State failed to prove that the housing owned or managed by the Franklin Township Housing Authority fits the statutory definition of public housing. She asserts that the trial judge should have granted her motion for a new trial and that her conviction should be reversed.
Defendant was charged under N.J.S.A. 2C:35-7.1, the drug free public housing zone statute. Section 7.1 states in pertinent part:
a. Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except ...