On appeal from Superior Court of New Jersey, Law Division, Bergen County, 03-07-1428-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and Lyons.
Tried to a jury, defendant Ahmat B. Amat was convicted of possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10(a)(1), and possession of a controlled dangerous substance (cocaine) in a quantity of over one ounce with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). On May 6, 2005 he was sentenced to a State prison term of four years on the charge of possession of cocaine and a concurrent sentence of ten years with five years to be served without parole eligibility on the charge of possession of a cocaine in a quantity of more than one-half ounce with intent to distribute. Also imposed were a total of $150 in Violent Crimes Compensation Board penalties, $225 in Safe Streets Assessments, a $30 LEOPA fine, $3,000 in DEDR penalties, $100 lab fee and twelve months loss of driver's license. Defendant appeals his convictions and sentence.
The State concedes that if defendant's convictions are affirmed, his sentence must be remanded for further proceedings because his conviction for possession of cocaine should have merged into his conviction for possession of cocaine with intent to distribute, and the corresponding penalties and fines should be amended to reflect $2,000 in DEDR penalties, a $50 lab fee, a $25 Victim of Crimes Compensation Board assessment, and a $75 Safe Neighborhood Services Fund assessment. See State v. Dillihay, 127 N.J. 42, 52 (1992). Moreover, the State also agrees to a remand for re-sentencing because the ten-year sentence for possession with intent to distribute exceeded the then presumptive term of available for a second-degree crime. State v. Natale II, 184 N.J. 458 (2005).
The salient facts at trial were as follows. Officer Marcel Schact of the Bergen County Police Department Patrol Division was on duty patrolling Route 4 in a marked patrol car on the evening of October 5, 2002. Officer Schact testified that at about 9:30 p.m. he noticed a white 1992 Cadillac with Pennsylvania license plates speeding on the roadway, weaving in and out of traffic and tailgating other vehicles. He caught up to the Cadillac on the express lane of Route 95 south and activated his patrol car lights to pull the vehicle over to the side. The officer contacted dispatch about the stop and walked to the driver's side of the Cadillac holding a flashlight. There were three men in the car. The person later identified as Charles Martino was the driver, Rafael Otero was sitting in the front passenger seat, and defendant was in the back seat. Officer Schact looked into the Cadillac and saw a "High Times" magazine on the rear seat and a baggie on the front seat floorboard. The officer also detected the odor of burnt marijuana.
When asked by the officer for his driving credentials, Martino was unable to produce any identification. Officer Schact ordered Martino out of the Cadillac, and the two walked to the rear of the car. At this point Martino kept putting his hands in his pockets despite Schact's telling him not to do that. Fearing that Martino might be armed, the officer patted him down and felt a large bulge in his left pocket. He removed the bulge, which turned out to be marijuana and $2,016 in cash.
After Officer James Mullin arrived to assist, Officer Schact walked to the passenger side of the Cadillac and spoke with Rafael Otero, the front-seat passenger. As he did so, Officer Schact saw a plastic bag full of cigar shavings on the front floorboard. He ordered Otero out of the car and told him to sit on the guardrail next to Martino. He then turned his attention to defendant in the back seat, who as it turned out, also had no identification. Defendant was removed from the vehicle and also ordered to the guardrail. At this point Schact searched the Cadillac. He found a clear plastic bag with forty-seven pills of Ecstasy inside a pouch draped over the driver's seat which also contained a digital scale and baggies containing marijuana. A white powdery substance which Schact identified as cocaine was found underneath a jacket in the back seat where defendant had been sitting. The weight of the cocaine was 4.8 ounces.
Otero entered a guilty plea prior to trial pursuant to a plea agreement. Defendant and Martino maintained not guilty pleas and went to trial. The State's case-in-chief consisted of the testimony of Officer Schact and Detective Elliot Cookson, who testified as an expert witness as to illegal drugs and illegal drug activity. While Martino exercised his right not to testify, defendant testified on his own behalf that he had known Martino and Otero for only a few months and that they had socialized a few times at a local tavern. He said that on October 5, 2002, Otero telephoned him at home to tell him he was going to New York with Martino, and defendant agreed to go along. They left Wilkes-Barre, Pennsylvania at about 12:30 p.m., and on the way they shared a blunt of marijuana. Defendant testified he believed that they were going to Otero's mother's house in New York City to pick up $2,000 to purchase the Cadillac from Martino's mother. He said that when they got to New York, Otero stopped the car at a house and went inside. When he returned, he handed Martino a large wad of money.
Defendant related that they started back to Wilkes-Barre, and he fell asleep in the back seat. He awoke when Officer Schact pulled the car over. Defendant said that after Martino got out of the car and walked to the rear with the officer, Otero opened the glove compartment, took out something wrapped in a paper towel and threw it to defendant in the back seat while telling him to put the package down his pants. Defendant said he refused and threw the package back. Otero then wrapped it in a jacket which he put in the rear passenger seat floor. He also opened a briefcase and began stuffing things into the pouch behind the driver's seat. Defendant claimed he had no knowledge of any of the drug items found in the car by the police officers.
Also testifying for the defense was Linda Skiva, Martino's mother. She stated that she owned the Cadillac and wanted to sell it. When no offers were made, she asked her son to ask Otero if he wanted to buy it. She said Otero agreed, and she lent Martino the car on February 5 to drive Otero to New York City get $2,000 for the purchase.
The State called Rubin Otero as a rebuttal witness. He stated that he entered a guilty plea to the charges in exchange for a sentence of five years with a three-year period of parole ineligibility to run concurrent with a nine-year federal sentence. He related that on October 12, 2002, he was at his home playing video games and smoking marijuana with Amat when Martino arrived and asked him for his help in buying cocaine. Otero replied that he could get him whatever he wanted, and then all three men agreed to drive to New York to purchase cocaine, marijuana and Ecstasy to sell in Wilkes-Barre. With Martino driving, the men smoked marijuana during the three or four-hour drive to Washington Heights to purchase the drugs. When they arrived they each contributed money totaling $4,000 for the purchase. Otero said that he and Martino got out of the car and bought cocaine, marijuana and Ecstasy on a street corner, while defendant remained in the car. Otero said he gave the drugs to defendant who put them in his jacket pocket. They agreed that all three would split the cocaine and marijuana but Otero alone would take the Ecstasy pills. The expectation was that this would make a profit when reselling the drugs. Finally, Otero said that it was never his intention to purchase the Cadillac, and he denied that he stopped at his mother's house after driving to New York.
On appeal defendant Amat makes the following arguments:
POINT I -- THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ERRED IN PERMITTING IMPROPER EXPERT TESTIMONY BEFORE THE JURY AND/OR IMPROPERLY CHARGED THE JURY HOW IT COULD USE SUCH EXPERT TESTIMONY THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9 AND 10.)
POINT II -- DEFENDANT WAS DENIED A FAIR TRIAL BY THE IMPROPER ADMISSION OF INFLAMMATORY EVIDENCE WHICH, WITHOUT PROPER LIMITING INSTRUCTIONS, HAD THE CLEAR CAPACITY TO UNDULY PREJUDICE THE JURY, IMPROPERLY IMPEACH HIS CREDIBILITY AND CONSTITUTED PROSECUTORIAL MISCONDUCT SO EGREGIOUS AS TO DENY DEFENDANT A FAIR TRIAL.
POINT III -- THE DEFENDANT'S CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONST. AMEND. VI.
POINT IV -- THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE THE VERDICT.
POINT V -- THE WITHIN SENTENCE MUST BE VACATED AND THE MATTER MUST BE REMANDED FOR RE-SENTENCING IN LIGHT OF STATE V. NATALE, 184 N.J. 458 (2005) AND SINCE THE SENTENCE ...