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State v. Rivera

March 29, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE RIVERA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-01-0046.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 18, 2007

Before Judges A. A. Rodríguez and Sabatino.

Following a jury trial defendant, Jose Rivera, was convicted of third degree distribution of heroin, a controlled dangerous substance (CDS), while within 1,000 feet of school property, N.J.S.A. 2C:35-7, -5a and related charges. The State moved for imposition of an extended term. After merger of all convictions, the judge imposed an extended nine-year term with four and one-half years of parole ineligibility. We affirm.

These are the relevant proofs. Paterson Police Detective Orlando Robinson testified that on the night of August 5, 2003, at approximately 9:00 p.m., he was conducting an undercover surveillance operation in the area of East 18th Street near Park Avenue. He was alone in an unmarked police car. He observed, from about twenty-five feet away, a man later identified as defendant, standing in front of a multifamily apartment complex on East 18th Street. Robinson noticed a female, later identified as Miele Luz Matos, approach defendant. After a brief conversation, Robinson noticed that defendant removed a small light colored object out of his pocket and passed it to Matos, who then gave defendant currency. Robinson notified his backup unit, Detectives John Luberza and Joseph Rodriguez, and provided a description of Matos. She went into a white van traveling south on East 18th Street. Matos was stopped. Rodriguez arrested Matos. When he approached her he found glassine envelopes in her right pants pocket. Matos was placed under arrest. Robinson requested the backup officers to arrest defendant.

Luberza testified that he received a radio transmission from Robinson to look for a male wearing a blue shirt, blue jeans and white and black sneakers. He arrested defendant, who fit the description. According to Luberza, as he cuffed defendant, defendant stated, "I don't have any left." Seventy-one dollars were found on defendant's person.

Matos testified at trial as a State witness. She admitted to prior convictions, commencing in 1993 for theft, 1997 for burglary, 2003 for possession of illicit narcotics and admitted that she was currently incarcerated, serving a three-year sentence for possession of heroin. Matos testified that for the present offense she faced ten years incarceration. In exchange for identifying defendant as the person from whom she purchased heroin, the State recommended that she serve three years on an extended term sentence.

According to Matos, she was in the area of East 18th Street to buy heroin. She jumped out of a white van to purchase heroin from defendant, whom she had known for six months. Defendant sold her a bag of "heroin" for $10. Matos got back into her friend's van and drove away. Four blocks away, the van was pulled over by police. Matos exited the vehicle and was asked by the officer to take everything out of her pockets. She was arrested at the scene. No witnesses testified for defendant.

On appeal, defendant contends:

DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF OFFICER ROBINSON, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION (Not Raised Below).

Specifically, defendant argued that it was improper for Robinson to testify that he believed he had just observed a hand-to-hand drug transaction between Matos and defendant, because such opinion "invaded on the exclusive province of the jury." We are not persuaded.

As a fact witness, Robinson can offer an opinion based on his perception of events if it will assist the jury in understanding his testimony. N.J.R.E. 701. If the lay opinion testimony meets this criteria, it will be admitted. It is up to the jury to decide the weight to be given this opinion. Moreover, a lay witness, who has substantial experience in an area, may draw upon such experience in forming a lay opinion. See Trentacost v. Brussel, 164 N.J. Super. 9 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (holding that a police officer who investigated between 75 and 100 crimes in a particular neighborhood over a three-year period may offer his opinion that the neighborhood is a high crime area). See also State v. DeLuca, 325 N.J. Super. 376, 393 (App. Div. 1999), aff'd on other grounds, 168 N.J. 626 (2001) (holding that a police officer may testify that he saw distinctive footprints in the snow that were similar to prints left by the defendant's boots); State v. Locurto, 157 N.J. 463, 471-72 (1999) (holding that police officers and other lay witnesses may testify that a car was apparently speeding); see also N.J.R.E. 704 (Opinion on Ultimate Issue).

Thus, we find no merit in the argument, which is being raised for the first time on appeal that Robinson, based on his expertise, could not offer an opinion that he had witnessed a drug transaction. It was not plain ...


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