On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-06-2272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Messano.
We consider in one opinion these two appeals brought by defendant Kareem Alford and co-defendant Charles Alford who were jointly tried and convicted by a jury 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 2C:35-5(b)(3)(count two); third-degree possession of cocaine with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-7(count three); second-degree possession of a weapon during the commission of a drug offense, N.J.S.A. 2C:39-4.1(count four); third-degree possession of a weapon, N.J.S.A. 2C:39-5(b)(count five); third-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35(b)(3)(count six); and second-degree distribution of or possession with intent to distribute cocaine within five hundred feet of public property, N.J.S.A. 2C:35-7.1(count seven). The jury acquitted defendants of fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f)(count eight).
The State moved for an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) as to Kareem.*fn1 After denying defendant's motion for acquittal, the judge granted the State's motion and merged counts one, two, three, and six into count seven, and sentenced Kareem to an eight-year term of imprisonment with a four-year period of parole ineligibility.*fn2 On count five, the judge imposed a concurrent five-year term and on count four a consecutive sentence of seven years imprisonment. The appropriate penalties and license suspension were imposed.
The judge effectuated a similar merger of offenses when he sentenced Charles to a seven-year term of imprisonment with a three-year period of parole ineligibility on count seven, a concurrent four-year sentence on count five, and a consecutive seven-year sentence on count four. Similarly, the appropriate financial penalties and license suspension were imposed.
Kareem raises the following points for our consideration:
THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER AN OPINION ON THE ULTIMATE ISSUE OF DEFENDANT'S GUILT. (Not Raised Below)
THE PROSECUTOR'S INTRODUCTION OF EVIDENCE CONCERNING DEFENDANT'S LACK OF EMPLOYMENT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE ON A PANEL THAT HAD REACHED AN ADVANCED STAGE OF DELIBERATIONS. (Not Raised Below)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPROPERLY FINDING AGGRAVATING FACTORS AND FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS.
Charles raises the following arguments for our consideration:
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO UPHOLD THE POLICE OFFICER'S "PREFERENCE" TO NOT DISCLOSE THE SURVEILLANCE LOCATION AND INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENDANT'S COUNSEL FAILED TO OBJECT . (Not Raised Below)
DEFENDANT IS ENTITLED TO RESENTENCING ON THE COUNTS FOR WHICH HE RECEIVED THE PRESUMPTIVE TERM BECAUSE THE TRIAL COURT MAY HAVE CONSIDERED THE PRESUMPTIVE THE LOWEST POSSIBLE SENTENCE GIVEN ITS FAILURE TO FIND ANY STATUTORY MITIGATING FACTORS. (Not Raised Below)
THE SENTENCES IMPOSED ARE FUNDAMENTALLY UNJUST AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The State's first witness was Camden police officer Dan Pleskonko. On March 22, 2004, at around 8:30 p.m., Pleskonko and his partner Ruben Alicea were conducting surveillance at Seventh and Berkeley Streets, a residential area in Camden. A six-year veteran of his department, Pleskonko stated that he personally made "at least a dozen" drug-related arrests at this particular location, and on the night in question, he was engaged in a "sneak and peak" operation in which he and Alicea were observing narcotics sales and drug transactions from a concealed location.
Pleskonko observed the defendants and their co-defendant Rashon Reese.*fn3 He observed an unidentified female approach the group, observed her and Kareem walk a short distance from the corner, saw the woman hand Kareem money in exchange for what appeared to be a small item, and then walk away. Pleskonko, who was approximately fifty feet from the group, did not have binoculars and had only a partial view of the exchange. Although Pleskonko radioed the woman's description to a backup unit in the area, she was never apprehended.
Pleskonko then saw Charles leave the group, head toward the back of an abandoned building, and remove a brick from the building's foundation. Pleskonko was approximately ten feet from Charles and saw him remove a black handgun and a plastic bag, which the officer suspected contained drugs, from the hiding spot. Pleskonko witnessed Charles conceal the bag in the waistband of his pants and replace the weapon in the wall. The officer testified that Reese then waved to Charles, signaling that it was "clear," and all three men again met at the corner.
Once the stash location*fn4 was identified, Pleskonko radioed the arrest team and instructed them to arrest defendants and Reese. While the arrests were made, the officer kept watch over the stash location to ensure it was not tampered with and then personally retrieved a loaded, black 9 mm. Beretta handgun and a plastic bag containing twenty-nine smaller bags of crack cocaine from behind the removable brick.
During cross-examination, Pleskonko testified that none of the three defendants had any drugs or weapons on him when arrested. The bag Pleskonko saw Charles place in his waistband was never recovered despite a search of the immediate area by the officers. When arrested, Kareem had $134 in paper currency in small denominations and Charles had $25.
Alicea also testified for the State and his testimony corroborated that of his partner. The State also called a number of witnesses who identified a school and a public park that were near the intersection in question, as well as investigators from the prosecutor's office who had measured the distances to each and found them to be within the statutory one thousand feet, and five-hundred feet respectively, from the intersection.
Without objection, the State then called Terry King, an investigator with the Camden County prosecutor's office, as an expert in the field of illegal drug distribution. He was familiar with the area of Seventh and Berkeley Streets because of his participation in several street-level narcotics investigations at that intersection.
King described the typical packaging of crack cocaine and opined that the drugs confiscated during defendants' arrests were consistent with "street level packaging" utilized by dealers. He also testified regarding the drug distribution hierarchy or scheme utilized by drug suppliers and dealers; the signals and hand signs typically ...