August 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-07-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges Fuentes and Graves.
Defendant Tyrone Johnson was tried before a jury and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1.*fn1 After granting the State's motion for the imposition of an extended term on the second-degree conviction, the court sentenced defendant to a term of sixteen years, with eight years of parole ineligibility. The court also imposed a concurrent five-year term on the third-degree conviction, and assessed the mandatory fines and penalties.
We gather the following facts from the evidence presented at trial. At approximately one o'clock in the morning on March 24, 2006, as City of Elizabeth police officers Daniel Geddes and Vincent Napoli drove past a five-story residential building located at 471 Madison Avenue, they observed a man, subsequently identified as defendant, standing on the front steps. The officers were dressed in plain civilian clothes.
Defendant, described as an African-American heavy-set man with dreadlocks, escorted a white man into the interior of the building. The officers parked their car in the rear of the building, in an area where they could observe defendant's activities. Napoli testified that he observed defendant walk downstairs from the fifth floor, until he met the white man on the ground level.
Napoli indicated that he was standing about five feet from the building's side windows, which were slightly opened, when he heard defendant say to the white man: "Just one, right?" This question was immediately followed by the command: "Wait here." Defendant then walked up the stairs, out of Napoli's view, as the white man stepped into the staircase leading to the basement.
While this was taking place, Geddes managed to climb to the building's roof. From this vantage point, Geddes observed defendant approach a door near the elevator shaft, and bend down. Geddes could not see what defendant actually did while in this location. After defendant left, Geddes returned to this area and found a black bag containing 172 vials of crack cocaine.
Back on the ground floor, Napoli observed defendant hand the white man a small "red" object in exchange for paper currency. Based on his training and experience, Napoli concluded that he had witnessed an illicit narcotics transaction, and radioed for backup. Both men were arrested.
When the backup team arrived, the white man dropped the object down the basement steps. Napoli retreived the object which proved to be one vial of crack cocaine. A search of defendant's person revealed $149 in cash and an empty ziplock bag. While at the police station, defendant indicated that he was at the building to buy, rather than sell cocaine.
As part of the State's case in chief, Detective Oliver Kalebota testified as an expert witness in the field of street-level drug distribution. Responding to a hypothetical question posed by the prosecutor, which contained facts that mirrored the events described here, Kalebota opined that the 172 vials of crack cocaine seized from the roof were possessed with the intent to distribute. The parties stipulated: (1) that the vials seized by the police tested positive for cocaine when examined by a State laboratory, weighing more than one-half ounce; and (2) a map depicting that the alleged sale and location of the illicit drugs occurred with 500 feet of public park.
Against these facts, defendant now appeals raising the following arguments:
THE EXPERT TESTIMONY TOUCHED IMPROPERLY ON WHETHER DEFENDANT DISTRIBUTED THE DRUGS, AND THE TRIAL COURT DID NOT INSTRUCT THE JURY CORRECTLY ON HOW TO EVALUATE THE EXPERT TESTIMONY, REQUIRING REVERSAL OF COUNTS 4 AND 5 (Not Raised Below).
POINT TWO DEFENDANT'S CONVICTIONS CANNOT STAND BECAUSE THE TRIAL COURT MISINFORMED THE JURY ON THE EFFECT OF A STIPULATION, VIOLATING DEFENDANT'S RIGHTS TO A JURY TRIAL AND DUE PROCESS OF LAW (Not Raised Below).
POINT THREE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF COUNTS 4 AND 5 BECAUSE THE STATE PRESENTED INSUFFICIENT PROOF THAT S-4 WAS A CONTROLLED DANGEROUS SUBSTANCE (Raised Below).
POINT FOUR THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR ACQUITTAL OF COUNT 5 BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE THE "PUBLIC PARK" ELEMENT OF THE DISTRIBUTION CRIME, AND THE RESULTING CONVICTION IS INVALID BECAUSE THE TRIAL COURT DID NOT INSTRUCT THE JURY PROPERLY ON THIS ELEMENT OF THE OFFENSE (Not Raised Below).
POINT FIVE THE COURT SHOULD REMAND FOR RESENTENCING BECAUSE DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Defendant's arguments in Points I, II, III, and IV, attacking his conviction lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The State concedes that, pursuant to the guidelines articulated by the Supreme Court in State v. Pierce, 188 N.J. 155 (2006), the sentence imposed by the trial court must be vacated, and the matter remanded for re-sentencing.
Defendant's conviction is affirmed. Remanded for re-sentencing.