On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 04-03-524 and 04-06-1008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Baxter and King.
Defendant Marshon Stevens appeals from his November 18, 2005 convictions on two indictments, one the result of a trial and one the result of a plea. The first conviction resulted from a trial by jury on Indictment No. 04-03-524, in which he was found guilty of possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).
Defendant was acquitted of counts five through seven, which charged him with distribution of cocaine (count five); distribution of cocaine within 1,000 feet of a school (count six); and distribution of cocaine within 500 feet of a public housing facility (count seven). The trial concluded on September 29, 2004. For a reason that is not explained in the record, sentencing did not occur until November 18, 2005. After merging counts one and two with count three, the court sentenced defendant on count three to a ten-year term of imprisonment, with five years of parole ineligibility. The judge sentenced defendant to the same term of imprisonment on count four, to run concurrent with the sentence imposed on count three.
On July 22, 2005, four months before sentence was imposed on Indictment 04-03-524, defendant pled guilty to one count of an unrelated indictment, Indictment No. 04-06-1008.
Specifically, defendant entered a negotiated plea of guilty to count three, possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. He was sentenced to a ten-year term of imprisonment, with five years of parole ineligibility, concurrent to the sentence on Indictment No. 04-03-524 that was imposed the same day by a different judge. Appropriate fines and penalties were also imposed on each indictment.
On appeal, defendant raises the following claims:
I. THE TRIAL JUDGE ERRED IN HIGHLIGHTING ONLY THE INCONSISTENCIES IN THE DEFENSE WITNESS'S [TESTIMONY] WHEN INCONSISTENCIES IN THE TESTIMONY OF THE STATE'S WITNESS WERE ALSO ELICITED. (Not Raised Below)
II. THE DEFENDANT'S SENTENCES MUST BE REMANDED AS THEY ARE ILLEGAL AND EXCESSIVE. In a supplemental pro se brief, defendant argues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AND SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE.
II. [THE] PROSECUTOR'S COMMENT[S] DURING TRIAL CLOSING ARGUMENTS DENIED DEFENDANT OF A FAIR TRIAL.
We begin by setting forth the facts concerning the evidence adduced at trial on Indictment No. 04-03-524. On December 12, 2003, Jersey City police officer Timothy O'Brien was on routine patrol in an unmarked police car observing the parking lot of a strip mall on Montgomery Avenue. During a ten-minute period, O'Brien observed a black male repeatedly cross Montgomery Avenue as he went back and forth between the strip mall and the Montgomery Gardens Housing Complex. While that individual was standing outside the housing complex, O'Brien saw a male and a female approach him, after which all three immediately crossed back over the four lanes of Montgomery Avenue toward the strip mall. Once they reached the other side of the street, the female handed currency to the black male, who looked around briefly and then exchanged the currency for a small object. Believing he had just witnessed a drug transaction, O'Brien radioed a description of all three individuals and their direction of travel. Based on the description O'Brien had broadcast, Officer James Wilde apprehended the two buyers, Michelle Pallandino and Kevin Maneri, a few blocks away and recovered from Pallandino a vial of cocaine with a yellow cap.
Officer Wilde heard on his police radio O'Brien's description of the black male whom O'Brien had seen selling cocaine. O'Brien described him as six feet tall with a stocky build and wearing a black jacket with white shirttails hanging out beneath the jacket, dark pants and a knit cap. Upon his arrival at the housing complex, Wilde observed a man matching the description O'Brien had broadcast. The suspect was standing in a group of four or five other men. When he saw Wilde approaching him, the suspect reached into his jacket and threw something to the ground. Wilde searched the area where the man was standing and recovered four vials of cocaine with yellow caps. Wilde placed the man under arrest and recovered $540 during a search incident to ...