On appeal from the Superior Court of New Jersey, Law Division, Camden County, No. I-02-12-4015.
Before Judges Stern, Wecker and Graves.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2004
A jury found defendant, Eustaquio Vasquez, guilty of third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); and third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). Counts one and two were merged with count three. The trial judge granted the State's motion to impose the mandatory extended term for a repeat drug offender under N.J.S.A. 2C:43-6f and sentenced defendant to an extended term of ten years in state prison with a forty-eight month period of parole ineligibility. We affirm defendant's convictions but reduce his sentence as explained below.
Defendant presents the following arguments on appeal:
POINT I THE PROSECUTOR'S SUMMATION WAS IMPROPER AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW)
POINT II THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY TO CONSIDER THE"QUANTITY AND PACKAGING" OF THE DRUGS RECOVERED AND BY INSTRUCTING THE JURY TO CONSIDER THE"GUILT OR INNOCENCE" OF THE DEFENDANT (NOT RAISED BELOW)
(A) IN THE ABSENCE OF ANY EXPERT TESTIMONY OFFERED BY THE STATE, THE TRIAL COURT ERRED IN DIRECTING THE JURY TO CONSIDER THE"QUANTITY AND THE PACKAGING" OF THE DRUGS RECOVERED BY POLICE OFFICER ERTZ
(B) THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY TO CONSIDER THE DEFENDANT'S"GUILT OR INNOCENCE"
POINT III THE TEN (10) YEAR SENTENCE WITH FORTY-EIGHT (48) MONTHS OF PAROLE INELIGIBILITY IMPOSED IS MANIFESTLY EXCESSIVE AND IS AN ABUSE OF THE COURT'S DISCRETION
(A) THE COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM BASE SENTENCE OF TEN (10) YEARS ON DEFENDANT'S CONVICTION FOR POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE WITHIN A SCHOOL ZONE ON COUNT THREE
(B) THE COURT ABUSED ITS DISCRETION IN IMPOSING A FORTY-EIGHT (48) MONTH PERIOD OF PAROLE INELIGIBILITY ON COUNT THREE
(C) THE JUDGMENT OF CONVICTION SHOULD BE AMENDED TO NOT REQUIRE THE DEFENDANT TO SUBMIT A DNA SAMPLE
We have carefully reviewed the record and the briefs, and although we reject defendant's contentions in Points I and II with respect to his conviction, those contentions warrant some discussion. In addition, defendant raises meritorious issues in Point III (A) and (B) that require us to reduce his sentence to the presumptive extended base term of seven years with a mandatory three-year period of parole ineligibility.
The evidence adduced at trial allowed the jury to find the following facts. At approximately 7:10 p.m. on July 22, 2002, Officer Miguel Ruiz of the Camden Police Department was working undercover when he observed defendant talking to an unidentified black male in front of a vacant house. Officer Ruiz saw defendant walk to the rear of the house, remove an object from a plastic bag on the ground, return to the front of the house, and hand the object to the unidentified male, who then left the area. The vacant house was within 1,000 feet of the Landing Square Elementary School.
Officer Ruiz radioed a description of defendant and the location of the plastic bag to his back-up unit. When members of the unit arrived three to five minutes later, defendant was arrested. Officer Ruiz directed Officer Daniel Ertz to seize the plastic bag and the"stash" behind the vacant house. The plastic bag contained fourteen small clear plastic bags, each of which contained a blue paper and white powder later determined by a state laboratory to be heroin. Defendant disputed that he was in possession of the narcotics. He testified that he was near the vacant building only because while riding his bicycle, he had stopped to urinate. He admitted to talking with a black male, but only because the male had asked defendant,"what happened?"
In Point I, defendant argues that the prosecutor's summation was improper in two ways: first, the prosecutor boosted a police officer's credibility; and second, the prosecutor misstated the law. Defendant did not object to either comment, and we therefore address this argument as plain error, that is, error"clearly capable of producing an unjust result." R. 2:10-2.
Defendant contends that the prosecutor's remarks deprived him of a fair trial by causing the jury to believe that to find defendant not guilty necessarily would imply that the police officer had lied. Defendant cites the following portion of the prosecutor's summation:
There's no mistaken ID alleged by the defendant, because he puts himself there. He is simply alleging that Officer Ruiz is lying, that Officer Ruiz did not see what he says happened. He's saying Officer Ruiz is lying. It's not a mistake. Officer Ruiz didn't say, well, I think he might have went to that bag, but maybe he went to that bag, so I'll just put him onto that bag. It's not about that. It's about Officer Ruiz came in here and blatantly lied to you. In order for you to believe the defendant's version, you have to believe that Officer Ruiz, on his own, decided to form this little conspiracy and lie about what he witnessed that day. Why would he do that? What does he have to gain by lying?.... Defense counsel, in his own opening, told you that he doesn't believe that Ruiz came in here and was going to lie. He told you that. He told you that Ruiz has a job to do. Defense ...