On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Axelrad and Payne.
Defendant, James Richardson, appeals from his conviction on third-degree charges of possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1); possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and possession of CDS with the intent to distribute it within 1,000 feet of a school, N.J.S.A. 2C:35-7. He appeals as well from his extended-term sentence of ten years in custody with a four-year period of parole ineligibility, imposed pursuant to N.J.S.A. 2C:43-6(f).
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE FAILED TO ADEQUATELY EXPLAIN THE LOITERING STATUTE AND THE DEFENDANT WAS SEVERELY PREJUDICED THEREBY. U.S. CONST. Amends. VI, XIV; N.J. CONST. (1947), Art. 1, pars. 9, 10. (Not Raised Below.)
THE DEFENDANT WAS SEVERELY PREJUDICED BY THE TESTIMONY ELICITED BY THE STATE THAT THE UNDERCOVER OFFICER KNEW THE DEFENDANT. U.S. CONST. Amends. V, VI and XIV; N.J. CONST. (1947), Art. 1, pars. 1, 9 and 10. (Not Raised Below.)
THE DEFENDANT'S SENTENCE IS EXCESSIVE AND IN VIOLATION OF NATALE II AND THOMAS. U.S. CONST. Amends. VI, XIV; N.J. CONST. (1947), Art. 1, pars. 9, 10. (Not Raised Below.)
We affirm defendant's conviction and remand the matter for resentencing.
The record provides evidence sufficient for a jury to conclude that Elizabeth police officer Athanasios Mikros, while in plain clothes, was approached by defendant in a high-crime location and asked what he was looking for. When Mikros responded "Diesel," meaning a brand of heroin, defendant asked how many he needed. Mikros responded, "two." Defendant then put his hand in his pocket but, after noticing the police's presence some distance away, instead of offering the drug as expected, defendant told Mikros to come with him. Realizing that his partner and a police car were approaching, Mikros arrested defendant before price was ...