On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-08-00792 and 04-03-0792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
In these back-to-back appeals, defendants Keith Atkinson and Jihad Thomas appeal from judgments of conviction entered on December 17, 2004 after a jury found them guilty of third degree conspiracy, N.J.S.A. 2C:5-2; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); and third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7.
After the appropriate mergers, Atkinson was sentenced to an extended term of nine years subject to four years parole ineligibility, and Thomas was sentenced to an extended term of seven years subject to three years parole ineligibility.
The charges against these defendants stemmed from a routine surveillance operation in Newark. Officers Luigi Corvino and Pedro Torres were in plain clothes in an unmarked vehicle as they drove on South Eleventh Street. As they were driving past an abandoned building at 360 South Eleventh Street, they saw three men -- later identified as Atkinson, Thomas and co-defendant Brown -- "hanging out" near the building and established a point of surveillance approximately fifty to sixty feet from the trio. The officers observed Thomas sitting on the front steps of 360 South Eleventh Street, and Brown standing by a fence ten to fifteen feet from Thomas. The officers saw an unknown man in a red cap approach Brown and give him money. Brown directed the individual to Thomas, who stood up, took a clear plastic bag from his pocket, took an item from the bag, handed it to the unknown man and put the bag back in his pocket. The officers attempted to arrest the unknown man but he escaped.
After the unknown man walked away from 360 South Eleventh Street, Brown walked across the street to 361 South Eleventh Street, where Atkinson was pacing back and forth and handed him the money. At that point, the officers moved forward and arrested the three men. Eighty-four vials of cocaine and $55 were recovered from Thomas's pocket, $199 was recovered from Atkinson and nothing was recovered from Brown.
Atkinson produced Ronder Prophet as a witness in his defense. She testified that at 8:30 p.m. on the night in question, Atkinson was driving by and asked Prophet where his girlfriend was. Prophet told him she had gone to the store and he pulled over and got out of the car. He walked with her to "TTs" and they sat on the porch to talk. Prophet testified that she did not see co-defendant Brown at all. The only person who came by to speak with her and Atkinson was Thomas. As they were sitting on the porch, the police arrived and arrested Atkinson.
In Atkinson's appeal, he argues:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING APPELLANT TO AN ...