On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 01-05-0621, 01-08-0931.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2007
Before Judges Axelrad and R. B. Coleman.
Defendant Jose Figueroa appeals from a judgment of conviction arising out of Indictment No. 01-05-0621 (the first indictment) for third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and third degree possession of CDS with intent to distribute within 1000 feet of a public school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three). Defendant also appeals from the judgment of conviction entered in accordance with his plea of guilty to one count of third degree possession of CDS, N.J.S.A. 2C:35-10a(1), under Indictment No. 01-08-0931 (the second indictment). The remaining three counts of the second indictment -- third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (count three); and criminal contempt, N.J.S.A. 2C:29-9 (count four) -- were dismissed.*fn1
The court merged counts two and three of the first indictment into count one, and sentenced defendant to four years in prison, with a three-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-7.2. For the conviction stemming from the guilty plea to the possession count of the second indictment, defendant received a consecutive sentence of four years.
The facts underlying the first indictment were developed through the testimony of Detective Victor DeFilippo, Detective John Quick, Sergeant Albert J. Camisa and defendant Jose Figueroa in two trials before different juries.*fn2 On the evening of April 18, 2001, Detectives DeFilippo, Hillyer and Quick were patrolling the area of Remsen Avenue in New Brunswick in an unmarked van. Near the intersection of Remsen and Hale Street, which they regarded as a high crime area, the officers noticed two individuals facing each other near the side of the Tecate Bar. From their view approximately thirty yards away, the officers suspected that these individuals, later identified as defendant and Maurice Hawkins, were about to engage in some sort of transaction.
The officers made a right turn onto Hale Street and from that vantage point, about twelve to fifteen feet away, they observed Hawkins give defendant an undetermined amount of currency. The officers testified defendant put the money into his left front pocket and spit out into the palm of his hand a couple of bags, about a quarter of an inch long that contained a white substance which the officers believed was cocaine. The officers testified that they were able to observe these men continually during the course of this suspected transaction.
Following the transfer of money, the officers exited the van and approached defendant and Hawkins. As they did so, DeFilippo heard Hawkins identify them as police officers, at which point defendant calmly put the bags back into his mouth, turned, and began to walk away. Quick reacted by grabbing defendant from behind, by the neck. Quick gripped defendant by his throat and cheek; he put his hand in defendant's mouth and "swept" his mouth with a finger causing the baggies to fall, some into Quick's hand and some onto the ground. There were ten baggies. The officers arrested both men and seized ninety-four dollars from defendant's pockets, thirty dollars of which came from his left front pocket.*fn3
The State's expert in the field of CDS transactions, Sergeant Albert Camisa, opined at trial that the manner in which defendant concealed the cocaine in his mouth and the amount of cocaine were both consistent with an intent to distribute, rather than possession for personal use. The State also introduced into evidence a drug free school zone map for the area around the Paul Robeson School, and the New Brunswick Ordinance which created the zone.
Defendant testified on his own behalf and asserted that on the evening of April 18, shortly before he was arrested, he had purchased the cocaine that was found in his possession. He testified he did not sell, share or give any portion of the cocaine to anyone else, nor did he intend to do so. He stated that he had been a cocaine user for about fifteen years and that evening he had paid one hundred dollars for ten baggies for his personal consumption. He estimated the drugs might have lasted about a week, depending on whether he could have controlled himself. Defendant also revealed that he had previously been convicted of two third degree offenses for which he had served two concurrent fifteen-month terms.
On May 13, 2004, the jurors in the first trial commenced their deliberations and on May 14, 2004, they found defendant guilty of count one, possession of cocaine. They reported they were hopelessly deadlocked and unable to reach a verdict on the two remaining counts. The court accepted the verdict on count one and the remaining counts were retried before a new jury on August 3, 2004. That jury considered essentially the same proofs as the first jury and returned a verdict on August 4, 2004, finding defendant guilty on counts two and three.
Thereafter, on October 18, 2004, defendant agreed to enter a plea of guilty to the charge of third degree possession of cocaine contained in the second indictment; and on November 19, 2004, the court sentenced defendant ...