On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges S.L. Reisner, Gilroy and King.
Defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7, and CDS distribution, N.J.S.A. 2C:35-5(b)(3). The trial court granted the prosecutor's application to impose an extended sentence, and sentenced defendant to eight years in prison with three and one-half years of parole ineligibility. Defendant appeals from the conviction and the sentence.
We affirm the conviction. However, because the term of imprisonment imposed was in excess of the then-presumptive sentence for a second-degree crime, we must remand the sentence for reconsideration pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006). In fairness to the trial judge, we note that these cases were decided after the sentence was imposed.
Defendant and his co-defendant Jameel Matthews were tried jointly for allegedly selling cocaine to an undercover police officer. On July 13, 2004, the first day of trial, defendant's counsel advised the trial judge that his client had just informed him that he wanted to present three alibi witnesses. The attorney asked for an adjournment so that he could interview the alleged witnesses.
The judge refused the adjournment on the grounds that the defense had not served an alibi notice in response to the prosecutor's written demand, as required by Rule 3:12-2(a), and the judge doubted the good faith of the claim. The judge specifically noted that it was not until the day of trial, after defendant indicated that he wanted to discharge his attorney and was not permitted to do so, that defendant sought to delay the trial by claiming that he had alibi witnesses. Defense counsel did not indicate where defendant claimed to have been at the time of the alleged offense, as required by Rule 3:12-2(a), or what testimony the alleged alibi witnesses were expected to provide.
Following defendant's conviction, the court's denial of the adjournment request was the subject of a new trial motion heard in October 2004. However, even after having several months to interview the witnesses, two of whom were identified as defendant's father and grandmother, the defense still did not specify where defendant claimed to have been at the time of the offense or what testimony the witnesses allegedly would have provided at trial.
At the trial, the State presented testimony from Detective Kenneth Mikolajczyk, who observed defendant engaging in what appeared to be a drug transaction with Detective Keith Johnson, who was working undercover. Detective Johnson testified that he approached defendant's accomplice, Jameel Matthews, and indicated he wanted to buy $50 worth of cocaine. Matthews took the money and gestured to defendant, who then approached Johnson and handed him five vials of a white substance that proved to be cocaine. Although Johnson did not know Matthews, he was well-acquainted with defendant. Johnson testified that he was "positive" that defendant was the person who handed him the cocaine. Mikolajczyk also knew defendant and positively identified him as the person he saw making the transaction with Johnson.*fn1
Shortly after beginning their deliberations, the jury asked for a read-back of all of the police testimony identifying the defendants. They also indicated that they were having some difficulty with the State's evidence and might have trouble reaching a verdict. The judge had the court reporter provide the read-back and then directed the jurors to continue deliberating. Defense counsel did not object. The judge subsequently asked the jurors if they wanted to continue deliberating or if they wanted to return the next day. They indicated that they wished to continue deliberating and, in fact, three jurors sent out a note asking the judge to have his staff contact their families to tell them that they would be home late. Again, counsel did not object to the jurors continuing to deliberate into the evening. After several hours of deliberation, the jury acquitted Matthews and convicted defendant.
On this appeal, defendant raises the following points for ...