On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-04-0471.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Terrell Williams appeals from a judgment of conviction entered after a jury found him guilty of third degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 (downgraded from second degree) and third degree possession of a CDS, N.J.S.A. 2C:35-10a(1). After reviewing the record in light of the arguments raised by defendant on this appeal, we affirm the convictions but remand for re-sentencing.
The charges against defendant arose from the execution of a search warrant by the New Brunswick Police Department Anticrime Unit at 94 Comstock Street on January 20, 2002. On that date, Lieutenant Paul Schuster of the New Brunswick Police Department was supervising surveillance at the premises. After observing co-defendant Kelly Evans exit the house, Lieutenant Schuster instructed other officers to stop and detain Evans. Evans fled but was apprehended and arrested. Then, officers entered 94 Comstock Street, which Schuster originally believed to be a one-family house. However, upon entering to execute the warrant, they learned that defendant's uncle resided in a separate apartment on the first floor and defendant occupied the second floor apartment. The search was limited to common areas, the basement and the second floor.
When Schuster encountered defendant in the second floor apartment, he advised him of his constitutional rights and presented the search warrant. The ensuing search yielded three plastic baggies containing what was later identified as cocaine. In addition, in the common area immediately outside of the apartment, 118 bags of cocaine were found rolled in a carpet.
Defendant was charged along with Evans, in Middlesex County Indictment No. 02-04-0471 with conspiracy, N.J.S.A. 2C:5-2 (count one); third degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count two); second degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count three); third degree possession with intent to distribute a CDS on or near school property, N.J.S.A. 2C:35-7 (count four); third degree possession of a CDS with intent to distribute in or near a public park, N.J.S.A. 2C:35-5a (count five); and possession of a firearm while engaged in CDS distribution related activity, N.J.S.A. 2C:39-4.1 (count seven).*fn1
After a six day jury trial,*fn2 the jury found defendant guilty of count one, as amended, and count two. As to defendant only, counts three, four, five and seven were dismissed. Prior to sentencing, the court granted the State's motion for an extended term and, and at the sentencing hearing, merged convictions for the conspiracy and possession of CDS. The court imposed a six-year prison term plus fines and penalties.
Defendant subsequently filed a timely appeal, in which he has raised the following arguments:
THE PROSECUTOR'S COMMENTS TO THE JURY SUGGESTING THAT THE TESTIMONY OF POLICE OFFICERS WAS INHERENTLY CREDIBLE PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE EXPERT OPINION ELICITED BY THE STATE IMPERMISSIBLY RECITED A LEGAL CONCLUSION, THEREBY DENYING DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY ENGAGING IN AN EX PARTE, OFF-THE-RECORD COMMUNICATION WITH THE ...