On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2698.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
A jury convicted defendant Jamil Shabazz in October 2003 of two counts of second-degree possession of controlled dangerous substances (CDS), heroin and cocaine, with intent to distribute them within 500 feet of a public housing project, contrary to N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7.1. The jury also convicted defendant of four third-degree crimes, specifically two counts of possession of CDS with intent to distribute them within a school zone, contrary to N.J.S.A. 2C:35-7, and two counts of possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1). After appropriate mergers, the court sentenced defendant to a fifteen-year extended prison term on the heroin offenses, along with a concurrent seven-year term on the cocaine offenses.
Defendant appeals, raising numerous claims of error in the pretrial proceedings, the jury trial, and his sentencing. We affirm the convictions, but remand for resentencing.
The underlying facts involve a narcotics surveillance on April 11, 2003 at the James Baxter Terrace Public Housing Complex in Newark. At about 7:00 a.m. that day, Newark Police Officer Eduardo Patimho noticed defendant loitering outside the housing complex in front of 214 Orange Street. Using binoculars, Officer Patimho observed defendant speak with an unidentified woman. The woman handed defendant money, and he in turn reached into his waist and handed the woman a plastic bag. Correctly believing this activity was a drug transaction, the police intervened and arrested defendant. The female customer got away.
A pat-down search of defendant revealed that he possessed eighteen glycine envelopes with red stamps and twelve glass vials with yellow caps. The items were field tested and shown to be heroin and cocaine, respectively. A subsequent laboratory analysis confirmed the CDS identifications. Defendant also was found with $116.85 in small bills and coins. These proofs were buttressed by the testimony of a narcotics distribution expert, Detective Reginald Holloway, who opined that the packaging and quantity of the seized drugs was consistent with distribution, not personal use.
After he was indicted for these various drug offenses, defendant moved to suppress the items that had been seized from his person. The suppression motion was denied.
At the ensuing four-day trial, the State presented the testimony of Officer Patimho, Detective Holloway, Dwayne Marshall (another police officer involved in the surveillance), and Tacor Patel (the forensic chemist who had confirmed the substances in laboratory testing). Defendant presented an investigator, Craig Davis, who testified that he had gone to the scene of the police surveillance and could not observe the front of 214 Orange Street from that vantage point. Defendant presented no other witnesses.
After the parties rested, defendant moved for a judgment of acquittal. The trial judge denied the motion. The jury convicted defendant on all eight counts charged in the indictment.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION ...