On appeal from the Superior Court of New Jersey, Law Division, Union County, Ind. No. 02-09-1111.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Lihotz.
A Union County grand jury returned an indictment charging defendant Lucmane Dazilme and co-defendant Marcus Byron with multiple counts of distribution and possession of a controlled dangerous substance (CDS).*fn1 Defendant appeals from his February 23, 2004 conviction, following a jury trial, and the sentence imposed for third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and b(3) (count six); and second-degree possession with intent to distribute cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count seven). After merging counts five and six into seven, a sentence of nine years incarceration was imposed, with a four-year period of parole ineligibility. Applicable fines and assessments, and a six-month suspension of defendant's driving privileges was also ordered. We affirm defendant's convictions; however, we remand for reconsideration of the defendant's sentence.
The facts are taken from the trial record. On May 1, 2002, Elizabeth police detectives Kevin McDonough and Larry Smith were in an unmarked police vehicle, patrolling an area near Jefferson Park. McDonough saw an individual in the middle of the park, whom he recognized as defendant, and Smith pulled the car over to the side of the road. The officers watched as a man and a woman approached defendant. The three of them walked together to an apartment building located at 444 Jefferson Avenue, across the street from the park. McDonough saw defendant reach into a bush next to the apartment building's stoop, and withdraw a bag. He then took a smaller item out of that bag and gave it to the woman, receiving in exchange, an object McDonough testified "looked like currency." The man and woman left; defendant remained on the building's stoop.
Two Hispanic men then approached defendant, and a similar transaction took place: defendant "retrieved a bag out of the same bush next to the stoop, took something out of the bag and handed it to these two males," who gave him what appeared to be money. At that point, McDonough called for backup; Officers Daniel J. Merten and Raymond Smith, and Sergeant William Pinho arrived.
The detectives parked behind 444 Jefferson Avenue, just as defendant was approached by an unidentified man and co-defendant Marcus Byron, who arrived on a bicycle. The detectives, wearing civilian clothes, walked toward the building on foot. They could see the courtyard, where defendant and Byron were engaging in what was believed to be a hand-to-hand drug transaction, similar to the two exchanges that the detectives had observed earlier. The back-up officers arrived, and defendant "took[-]off running" directly toward the approaching detectives. The detectives grabbed defendant and placed him under arrest. Byron, "on his bicycle[,] took[-]off in the opposite direction and was chased by the [back-up] officers." McDonough retrieved a bag from the bushes, which contained twenty-eight vials, with two different color caps, of cocaine, and one Ziploc bag of crack cocaine.
At trial, the State presented the expert testimony of Lieutenant Guy M. Steward of the Union County Prosecutor's Office, who was qualified as an expert in the methods of distribution and packaging of street-level narcotics. Lt. Steward offered his opinion, based on various facts similar to the instant case, posed in a hypothetical question, and concluded that in the incident described, the vials of cocaine were possessed with intent to distribute.
Byron testified on his own behalf. He stated he was a purveyor of scented oils. When he encountered defendant, whom he knew from the neighborhood, he inquired whether defendant had an interest in purchasing the vials of oil, which he presented to defendant in his hand.
Defendant raises the following arguments on appeal for our consideration:
DEFENDANT WAS PREJUDICED BOTH BY QUESTIONS POSED BY THE PROSECUTOR DURING THE VOIR DIRE OF THE STATE'S EXPERT WITNESS AS WELL AS BY THE HYPOTHETICAL QUESTION POSED, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING ...