On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0907.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
Tried to a jury, defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35- 5b(3). On March 24, 2006, defendant was sentenced to a mandatory extended-term, pursuant to N.J.S.A. 2C:43-6f, of seven years of imprisonment with a three-and-one-half-year period of parole ineligibility, and a suspension of his driving privileges for a period of six months. All appropriate penalties and assessments were also imposed. Defendant appeals, and we affirm.
Because defendant does not contend that the verdict was against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other necessary facts when addressing the issues.
On June 17, 2005, John Tilton, a police officer with the City of Rahway Police Department, was on patrol in a motor vehicle in the area of Main Street and East Cherry Street in Rahway, when he observed an individual, later identified as Greg Richelshagen,*fn1 standing in front of the Landmark Liquor Store. After observing Richelshagen looking up and down the street as if searching for someone, Tilton parked his motor vehicle on East Cherry Street, approximately thirty feet away from Richelshagen. About one minute later, a second individual walked up and shook hands with Richelshagen. Tilton recognized the second person as defendant, having known him for approximately eight years. After the two shook hands, Richelshagen removed money from his pocket and gave it to defendant. In exchange, defendant handed Richelshagen a small, plastic object, after which both individuals separated and left the area.
Believing that he had just witnessed a drug transaction, Tilton exited the vehicle and requested both individuals to come toward the police car. Both ignored the officer's request. Because he had lost sight of defendant and knew defendant's identity, Tilton pursued Richelshagen and stopped him a few blocks from the liquor store. Upon searching Richelshagen, Tilton recovered a bag of cocaine from his pocket. Richelshagen was placed under arrest and transported to police headquarters. After Richelshagen was processed, Tilton went back out on patrol and arrested defendant. No contraband was found in defendant's possession.
In the interim, Detective James Crowell interviewed Richelshagen. After Crowell advised him of his Miranda*fn2 warnings, Richelshagen gave a formal written statement concerning the purchase of the cocaine found on his person at the time of his arrest. Richelshagen stated that he knew defendant from prior contacts over the past several months and identified defendant from a photograph as the individual who had sold him the cocaine earlier that evening, as witnessed by Patrolman Tilton. At trial, Richelshagen again identified defendant as the individual who had sold him the cocaine for $20.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION ON AN ESSENTIAL ELEMENT OF THE OFFENSE.
A. THE INSTRUCTION WAS SO VAGUE, CONFUSING, AND CONTRADICTORY THAT A REASONABLE PERSON WOULD BE INCAPABLE OF UNDERSTANDING AND APPLYING THE LAW (NOT RAISED BELOW).
B. THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AN ATTEMPT TO DISTRUBTE CDS WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I[,] PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY ...