On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-08-1089.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges S.L. Reisner and King.
Defendant Albert Robinson appeals from his conviction on charges of possession of marijuana and possession of marijuana with intent to distribute within 1000 feet of school property, and from the imposition of an extended term sentence.
He raises these four issues on this appeal.
I. THE CONVICTIONS OF DEFENDANT FOR POSSESSION OF MARIJUANA AND POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE ARE INCONSISTENT WITH HIS ACQUITTALS ON POSSESSION OF COCAINE AND POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE.
II. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL (NOT RAISED BELOW)
III. THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE DEFENDANT WOULD BE ADMISSIBLE IF HE TESTIFIED.
IV. THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIAE AND MANIFESTLY EXCESSIVE.
This is the procedural history. On August 4, 2005 defendant was indicted on charges of: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine 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); third-degree possession of cocaine with intent to distribute while within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count three); third-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-10(b)(12) (count four); and third-degree possession of marijuana with intent to distribute while within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count five). Defendant also was charged in complaint number S-2005-112963-1608 with a disorderly persons offense for possession of marijuana, N.J.S.A. 2C:35-10(a)(4).
Defendant was tried before Judge Caposela and a jury on March 21, 22, and 23, 2006. The jury acquitted defendant of counts one, two, and three, and convicted him on counts four and five. As the factfinder, Judge Caposela found defendant guilty of the disorderly persons offense. The State then moved for imposition of a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6(f).
On August 16, 2006 the judge merged count four and the disorderly persons offense into count five, and sentenced defendant to an extended term of nine years with a four-year period of parole ineligibility.
These are the facts. On March 19, 2005 Sergeant Anthony Damiano was conducting undercover surveillance in the area of 10th Avenue and East 26th Street in Paterson, known as a heavy drug trafficking area. Damiano had been employed by the Passaic County Sheriff's Department for eighteen years, was part of the Anti-Crime Unit, and had participated in over 1000 narcotics-related investigations and arrests.
At about 3:45 p.m., Damiano parked his undercover vehicle in the parking lot of Sussman's Pharmacy which was within 1000 feet of a school building. From the back seat of his vehicle, Damiano saw defendant sitting on the front steps of the apartment building next to the pharmacy. Damiano described defendant as a black man wearing a black jacket, blue jeans, and a black hat.
According to Damiano, on two separate occasions, he saw an individual approach defendant and engage him in a brief conversation. After each of those conversations, Damiano saw defendant walk over to a parked car in the driveway, reach under the car's rear driver's side wheel well, and retrieve a plastic bag. Defendant then removed smaller items from the plastic bag and returned it under the wheel well. Defendant then handed the smaller items to the two ...