On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-03-00373.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Sabatino and Alvarez.
Following a jury trial, defendant Raymond Pittman was convicted of all seven counts of Middlesex County Indictment Number 04-03-00373. He was charged with possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count three); possession of a controlled dangerous substance with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (count four); distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5) (count five); distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35- 7 (count six); and distribution of a controlled dangerous substance within 500 feet of a public building, N.J.S.A. 2C:35- 5(a) and N.J.S.A. 2C:35-7.1 (count seven). Rebecca C. Brunson was a named co-defendant on count one, possession of heroin.
All counts arise from a single drug transaction which occurred on January 20, 2004. The trial judge merged all of the convictions into count seven, possession with intent within 500 feet of a public building, and sentenced defendant to an eight- year term of imprisonment, subject to four years of parole ineligibility. Appropriate fees and penalties were imposed. Defendant appeals and we affirm the judgment of conviction, but remand for a re-sentencing in accord with State v. Natale (Natale II), 184 N.J. 458, 465-66 (2005).
According to the State's proofs at trial, New Brunswick Police Detective Mike Sutton was on narcotics surveillance in the middle of the afternoon when he witnessed defendant standing on a street corner. Two men approached defendant and removed money from their pockets. They all continued to walk out of Sutton's sight. Later, defendant returned to the street corner. Brunson approached him, and the two walked towards the surveillance site. From a distance of approximately fifty feet, Sutton saw Brunson give defendant money. Defendant, in turn, gave her a black plastic item. Sutton then radioed to other officers who immediately arrested Brunson and defendant. The corner was within 1,000 feet of a school and within 500 feet of the New Brunswick Fire Museum.
Sutton returned to the police station later that afternoon. As he walked past defendant in the booking room, defendant motioned Sutton over and asked if he could speak with him. Sutton told defendant they could talk after Sutton finished the arrest paperwork. Some twenty or thirty minutes later, he took defendant into an interview room. Defendant offered to "work with you guys." When Sutton said, "let's talk about today," defendant readily admitted making "a couple of sales" in order to earn money for school, although he refused to talk on tape. The following points are raised on appeal:
THE PROSECUTOR'S COMMENTS THROUGHOUT THE TRIAL DENIGRATING THE DEFENSE AND DEFENDANT AND SUGGESTING DEFENDANT WAS GUILTY OF OTHER CRIMES AND WRONGS IMPERMISSIBLY INFLUENCED THE JURY, REQUIRING REVERSAL. (RAISED BELOW)
A. PROSECUTOR'S INAPPROPRIATE COMMENTS.
C. DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.
DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE FIREFIGHTING HISTORICAL COLLECTION WAS NOT A MUSEUM PURSUANT TO N.J.S.A. 2C:35-7.1; R. 3:18-1. (RAISED BELOW)
N.J.S.A. 2C:35.7-1 IS UNCONSTITUTIONALLY VAGUE AS IT PROVIDES NO DEFINITION OF THE TERM "MUSEUM." (NOT RAISED BELOW)
DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS THERE WERE INSUFFICIENT PROOFS THAT THE SCHOOL WAS USED FOR SCHOOL PURPOSES ON THE DATE OF THE ARREST. R. 3:18-1. (RAISED BELOW)
THE TRIAL COURT ERRED IN ADMITTING CO-DEFENDANT'S STATEMENT TO POLICE AND IN NOT LIMITING THE USE OF THE STATEMENT VIOLATING DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM. N.J.R.E. 803(c)(25). (NOT RAISED BELOW)
DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)
DEFENDANT WAS ENTITLED TO A CHARGE THAT THE JURY MAY DRAW AN ADVERSE INFERENCE FROM THE FACT THAT THE STATE DID NOT CALL CO-DEFENDANT TO THE STAND. (RAISED BELOW)
DEFENDANT'S CONVICTION ON TWO DUPLICATE COUNTS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
THE COURT DID NOT RESPOND SUBSTANTIVELY TO QUESTIONS ASKED BY THE JURY. R. 2:10-2. (NOT RAISED BELOW)
DEFENDANT'S SENTENCE PENALTIES WERE EXCESSIVE AND INCONSISTENT WITH THE REQUIREMENTS OF STATE V. ...