On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges Parrillo and S.L. Reisner.
Following a trial by jury, defendant Yoan Peralta was convicted of fourth-degree possession of marijuana in a quantity less than one ounce with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count 1); two counts of third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (counts 2 and 6); third-degree possession of PCP, N.J.S.A. 2C:35-10(a)(1) (count 4); and second-degree possession of PCP in a quantity of less than 10 grams with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-(b)(3) (count 5).*fn1 At sentencing, the court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed, after appropriate mergers, an aggregate twelve-year term subject to a four-year parole bar. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on May 20, 2005, at 9:30 p.m., three members of the Passaic Police Department's street crimes unit -- Officers John Vaccaro, Raymond Rodriguez and Marvin Eugene -- were on routine patrol in an unmarked police car near the intersection of Martha Place and Monroe Street, within 1000 feet of Public School #11. The officers were in uniform with a police insignia on the front, and the word "police" on the back. As they approached, Eugene noticed three men and a woman standing on the corner drinking beer. Vaccaro stopped the car and the three officers got out to issue summonses for the municipal ordinance violation of drinking alcoholic beverages in public. Defendant was in the group, as was co-defendant Rolon, and two others.
As the officers approached the group, Vaccaro observed defendant, who was leaning on the hood of a parked pick-up truck eating tacos, crumble a brown paper bag and toss it to the ground behind him. At the same time, Rolon turned around and started walking away. Eugene followed him and saw Rolon throw a clear plastic bag to the ground. When Eugene recognized the contents as crack cocaine, he picked up the bag, placed Rolon under arrest, and alerted his fellow officers to his discovery.
This prompted Vaccaro to pick up the brown paper bag he had earlier seen defendant discard. Inside the bag was a large bundle of marijuana, nine small baggies of marijuana, and six baggies of marijuana laced with PCP. Immediately upon Vaccaro's discovery, Rodriguez placed defendant under arrest and patted him down, finding eighty-three small unused small plastic baggies in defendant's jacket pocket. The unused baggies found in defendant's pocket were identical to the baggies containing marijuana which were in the brown paper bag that defendant had discarded.
Both defendant and his mother, Eduarda Silverio, testified on his behalf. According to Silverio, on the evening in question, defendant accompanied her to her sister's house for dinner but remained outside, eating a taco from a corner restaurant on the hood of a car parked in front of the restaurant. Meanwhile, Silverio was standing outside her sister's house, four houses away, waiting for defendant to finish eating. She watched defendant the entire ten minutes and never saw him throw a bag to the ground.
Defendant also denied throwing a bag to the ground. While the other individuals in the group were drinking beer in public, he was eating tacos on the hood of a truck, standing with Rolon when the police arrived. According to defendant, Eugene found the paper bag behind him on the ground and Rodriguez then said, "If you don't say anything, we've got to take . . . everybody down for this." Although defendant admits being patted down, he denies that Rodriguez found the eighty-three empty baggies in his jacket pocket. Evidently crediting the State's version, the jury convicted defendant of all drug-related offenses charged save for the two counts (counts 3 and 7) not moved for trial by the State.*fn2
On appeal, defendant raises the following issues:
I. THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. DEFENDANT WAS FORCED TO GO TO TRIAL WHEN HIS DEFENSE WAS NOT READY AND, THEREFORE, ...