On appeal from Superior Court of New Jersey, Law Division, Passaic County, Ind. No. 03-04-0304.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Fuentes and Graves.
In a three-count indictment, defendant Morgan Scott and co-defendant Shariffe Parks were charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three). Defendant and co-defendant were also charged with possession of marijuana in a motor vehicle, a disorderly persons offense. On January 12, 2004, the jury found defendant and co-defendant guilty on all counts.
At sentencing, the court merged counts one and two into count three, and imposed a five-year state prison term with three years of parole ineligibility. The trial judge also found defendant guilty of the marijuana possession charge, and defendant received a concurrent ninety-day jail term. Appropriate monetary sanctions and suspension of driving privileges were also imposed.
On appeal, defendant makes the following arguments:
THE DEFENDANT[']S MOTION FOR A JUDGMENT OF [ACQUITTAL] SHOULD HAVE BEEN GRANTED AS THE EVIDENCE DID NOT SUPPORT THE VERDICT.
THE COURT ERRED IN ALLOWING TESTIMONY THAT THE DEFENDANT MADE STATEMENTS ABOUT HIS GUILT AND GAVE THE OFFICERS A COMBATIVE ATTITUDE AFTER BEING ARRESTED.
A. THE COURT ERRED IN FAILING TO CONDUCT A PRELIMINARY HEARING PURSUANT TO RULE 104(c) WHICH IS REQUIRED TO DETERMINE THE ADMISSIBILITY OF AN ALLEGED PRIOR STATEMENT MADE BY A CRIMINAL DEFENDANT.
B. THE COURT ERRED IN FAILING TO
CONDUCT A PRELIMINARY HEARING PURSUANT TO RULE 404 TO DETERMINE IF EVIDENCE OF THE DEFENDANT[']S CHARACTER WOULD BE ADMISSIBLE. (NOT RAISED BELOW)
COMMENTS MADE BY THE PROSECUTOR DURING OPENING STATEMENTS AND CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT[']S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM. (NOT RAISED BELOW)
THE TRIAL COURT ERRONEOUSLY [FAILED] TO GRANT A MISTRIAL AFTER IMPROPER EVIDENCE ABOUT THE DEFENDANT'S OTHER OUTSTANDING WARRANTS WAS PRESENTED TO THE JURY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A [G]ROSSLY DISPROPORTIONATE MAXIMUM TERM.
After reviewing the record and the applicable law in light of the contentions advanced on appeal, we have determined that this matter must be remanded to the trial court for additional proceedings consistent with this opinion.
At approximately 12:20 a.m. on October 28, 2002, Officer Felix Arroyo and Sergeant Stanley Rodriguez of the Paterson Police Department, while on patrol in an unmarked police car in the area of Tenth Avenue and East 30th Street, observed a white Jeep Cherokee being driven with its headlights off and swerving from side to side over the double-yellow line. The officers activated their lights and sirens near East 30th Street and Tenth Avenue and followed the Jeep until Tenth Avenue and 33rd Street, at which point the Jeep pulled over and stopped in a Dunkin' Donuts parking lot.
Arroyo, the driver of the unmarked police vehicle, approached the driver's side of the Jeep, and Rodriguez approached the passenger's side. When the driver of the Jeep, co-defendant Shariffe Parks, rolled down his window, Arroyo detected a strong odor of raw marijuana. Arroyo asked Parks for his driver's license, registration card, and insurance card. After Parks stated that he did not have a driver's license, Arroyo asked him to step out of the vehicle. Arroyo subsequently learned that Parks's mother was the registered owner of the Jeep Cherokee.
While Arroyo was speaking with the driver of the Jeep, his partner, Sergeant Rodriguez, "was illuminating the inside of the car with his flashlight." Arroyo testified that as Parks exited the vehicle, his partner said something to him, and Arroyo "then observed in plain view a large plastic bag" that he believed contained CDS. Subsequent testing revealed that the "large plastic bag" on the floor of the Jeep contained nine clear bags of crack cocaine, twenty-one blue bags of crack cocaine, twenty-nine green bags of crack cocaine, and one plastic bag of marijuana.
Parks and defendant Morgan Scott, who was a passenger in the front seat of the Jeep, were both arrested for possession of a controlled dangerous substance, and they were transported to police headquarters. During processing, it was learned that Parks, age 28, and defendant, age 43, were both residents of Paterson. Parks stated that he resided at 317 East 26th Street, and Scott stated that he resided at 379 East 29th Street. The police seized the sum of $299 in cash from Parks, but neither Parks nor defendant had any contraband on their person.
Arroyo told the jury that the bag containing the crack cocaine and marijuana was located in front of the driver's seat. During his direct testimony, Arroyo was asked to prepare "a very basic diagram as to where you saw this bag of drugs in the car." After doing so, he testified as follows:
Q: All right. And why don't you put a DR for driver's side of the car.
Q: Okay. And that dot that you drew on the diagram, what does that signify?
A: Where the bag was, laying on the ground.
Q: Okay. So do you want to -- were there seats in the car?
A: Yeah, this would be the driver's seat, and this is the passenger seat.
Q: Okay. So how far from the driver's seat was the bag of drugs on the floor of the car?
A: It was protruding maybe . . . 12 inches from the front of the seat sticking out just a little.
Q: Okay. So -- you know, maybe it's easier to describe it visually. Why don't we -- I'm going to ask you to just come down to the center of the courtroom, and perhaps you can demonstrate -- if this is the driver's seat, just demonstrate -- put that where you saw it.
Q: Okay. So, for the record, it appears to be pretty much centered in the middle of the driver's seat?
Q: And not covered by the ...