On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-10-1261-I.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Skillman*fn1, Winkelstein and Yannotti.
In this appeal, one of the issues we are called upon to decide is whether a museum falls within the definition of a public building under N.J.S.A. 2C:35-7.1, thus elevating a third-degree crime of possession with the intent to distribute a controlled dangerous substance to a second-degree offense when the offense is committed within 500 feet of a public building, if the museum does not have regular and consistent hours and is only open to the public upon request. We conclude that under such circumstances a museum nevertheless qualifies as a public building.
In October 2003, a Middlesex County grand jury indicted defendant Jessie Chambers, charging him with the following crimes: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public building, a museum, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count four).
On November 30, 2004, a jury convicted defendant of all charges. At sentencing, the court merged counts one and two into count three, and on count three, the court imposed a six-year, six-month prison term with three years and three months of parole ineligibility. On count four, the court imposed a five-year prison term, concurrent with the sentence on count three.
On appeal, defendant raises the following legal points for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS THAT THE TESTIMONY PRESENTED BY THE STATE THROUGH INVESTIGATOR KEVIN MORTON EXCEEDED THE PERMISSIBLE SCOPE OF EXPERT TESTIMONY. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS COUNT IV SINCE THE STATE FAILED TO DEMONSTRATE THAT THE ALLEGED DRUG ACTIVITY TOOK PLACE WITHIN 500 FEET OF [A] PUBLIC BUILDING SINCE THE BUILDING IN QUESTION DID NOT CONSTITUTE A PUBLIC BUILDING.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE WITHIN A SCHOOL ZONE INTO COUNT IV CHARGING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE ...