On appeal from the State of New Jersey, Law Division, Essex County, Indictment No. 04-06-2256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Following a jury trial, defendant, Ryan Philway, was convicted of a 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), (b)(3) (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine with intent to distribute within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); and a disorderly persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), a lesser included of the third-degree resisting arrest originally charged (count six). He was sentenced to seven years imprisonment subject to a three-year term of parole ineligibility on count four. Counts one, two, and three were merged into count four, and a concurrent six-month jail term imposed on count six. Appropriate fees and penalties were also imposed. Defendant appeals and we affirm, but remand for reconsideration of the sentence pursuant to State v. Natale (Natale II), 184 N.J. 458 (2005).
According to the State's proofs at trial, Alan Knight, an off-duty Newark police officer, stopped at a neighborhood grocery store at 8:45 a.m. on December 5, 2003, to buy a soda. He noticed a crowd in front of the store, which dispersed as he approached the door. Defendant, the only person who remained, asked him, "what do you need?" Knight, assuming defendant was attempting to sell illegal drugs, then answered, "what do you have?" Defendant responded "cookies," which Knight knew to be a street term for cocaine. Knight told defendant he would "take ten," and defendant told Knight to wait for him in the store. When defendant returned, he removed ten vials from a plastic bag in his pocket and placed the vials on a grocery store counter. Knight proceeded to identify himself as a police officer, and showed defendant his badge. Defendant threw the vials and told Knight, "[h]ell no, one officer cannot arrest me." Knight told defendant he was under arrest, and as Knight tried to grab him, defendant punched Knight in the chest and the the two men began to wrestle. Knight called out to the store owner to phone the police. Other officers arrived, and cuffed defendant. Defendant was taken to a nearby hospital, as he lost consciousness during the incident. While there, defendant was treated under the name Ryan Hunter. A plastic bag recovered from defendant's pocket proved to have twenty-three additional vials of crack cocaine.
During the trial, the State proffered the testimony of Detective Reginald Holloway, of the Essex County Sheriff's Department, as an expert in street level narcotics transactions. He opined that defendant's conduct was consistent with an individual who kept his drugs at a location separate from where he actually made sales. He further testified that by tossing away the vials he initially placed on the counter, defendant was attempting to distract Knight so that defendant could escape and sell his remaining crack cocaine at a later point in time. Holloway also said, "it is also my opinion that the recovered narcotics in said bag . . . [were] possessed with the intent to further distribute."
On appeal, defendant raises the following points for our consideration:
POINT I THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO RENDER AN OPINION ON THE ULTIMATE ISSUE BEFORE THE JURY THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT II THE TRIAL COURT ERRED IN ADMITTING "OTHER BAD ACTS" TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT III THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER EVIDENCE THAT DEFENDANT USED AN ALIAS THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT IV CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT V THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)
We consider defendant's first point, that the admission of the State's expert testimony prejudiced the outcome of his trial, subject to the plain error rule, Rule 2:10-2. In order to prevail, defendant must establish that the error was capable of producing an unjust result. In other words, defendant must show there is a reasonable doubt that the error may have denied him "a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). In support of his position, defendant contends that the circumstances presented the jury with a "close case," because the ...