On appeal from Superior Court of New Jersey, Law Division, Union County, 05-02-0167-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges A. A. Rodríguez and Collester.
Tried to a jury, defendant Rasool McCrary was convicted of third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); third-degree possession of cocaine within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count three); and second-degree possession of cocaine within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 (count four). On December 16, 2005, Judge Marianne Espinosa granted the State's motion for an extended term under N.J.S.A. 2C:46-6(f) and sentenced defendant on count three to a mandatory extended term of eight years with four years of parole ineligibility.
The court then merged counts one, two and four into count three. The court imposed a $5,000 DEDR penalty, $50 lab fee, $50 VCCB penalty, $75 SSCP penalty, $30 LEOTF fine, and suspended defendant's driver's license for six months.
The pertinent testimony at trial was as follows. At approximately 6 p.m. on September 28, 2004, Elizabeth Police Officer James Diorio was sitting in a parked unmarked police car and conducting drug surveillance in the area of 3rd and Court Streets. The weather was overcast and raining when Diorio arrived and saw defendant standing alone on the corner under an umbrella. After about two minutes a man walked into the area, and defendant went to meet him. Following a brief conversation which Diorio could not overhear, the defendant walked to a lower basement window at 255 Court Street, about forty or fifty feet away from Officer Diorio. The defendant reached into the window frame and picked up a plastic bag. Diorio saw him remove a small item from the bag and put it back in the window frame. Defendant walked back to the other man. The man gave defendant money, and the defendant handed him a small object.
A second transaction took place a short time later when another male approached and talked to the defendant, who then walked past a laundromat and out of sight. Co-defendant Fowler then entered the scene and spoke to the man. They walked down the street, and the man handed Fowler what appeared to be United States currency. Fowler walked to some nearby garages and reached into the frame above a garage door to retrieve something. He then returned and handed the man some small objects.
Diorio drove out of the area and called for back-up to meet him three blocks away. Officers Flatley and Mikros responded. They got into Diorio's car, drove to the corner of 3rd and Court Streets, and saw defendant standing in front of a bail bond agency on the corner and Fowler standing in the door of the nearby laundromat. Both men were arrested. Defendant was searched, and $267 was found on him. Fowler was also searched but only one penny was found on him.
While Flatley and Mikros detained defendant and Fowler, Diorio searched the first lower basement window frame at 255 Court Street where he had seen the defendant earlier remove something. Diorio recovered a plastic bag containing thirteen small glass vials of cocaine. When the searched the top of the middle of three garage doors between the laundromat and 253-55 Court Street where he had seen Fowler earlier, Diorio recovered twelve glassine envelopes of heroin. Diorio testified that both transactions were within 1,000 feet of St. Patrick's School and within 500 feet of Jackson Park.
After Diorio's testimony, Union County Prosecutor's Office Detective Kevin Sicola was called as an expert witness on the identification, packaging, use and sale of narcotics. His qualifications were stipulated. Sicola responded to a hypothetical question by the trial prosecutor that the thirteen vials of cocaine possessed by the defendant and the twelve envelopes of heroin possessed by Fowler were possessed with the intent to distribute. He based his opinion on the quantity of cocaine and heroin, the packaging, the money seized from defendant, the use of a "stash," and the nature of the area where high drug activity had previously been observed.
Finally, the State introduced results of laboratory testing indicating a positive result for cocaine as to the substance possessed by defendant and heroin for the drugs held by Fowler. After the State rested, neither defendant nor Fowler testified nor called any witnesses.
Defendant raises the following arguments for consideration on appeal:
POINT I -- THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO ...