On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0494.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
Following a trial by jury, defendant, Mark Rodriguez, was convicted on September 13, 2006, of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Two); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). The judge merged the first and second count convictions with the third count conviction. Defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-6f, of nine years with four and one-half years of parole ineligibility. Defendant appeals and we affirm.
On November 22, 2005, Daniel Vautier, a plain-clothes Camden Police Officer, was on surveillance duty in an unmarked police vehicle at the corner of 25th and Federal Streets, an area where numerous homicides and armed robberies have occurred. Vautier chose the location because he observed a man, later identified as defendant, wearing a bright blue heavy jacket and standing on an empty lot beside a vacant house at 11 North 25th Street, known to be frequented by drug users to "get high in." Vautier parked his vehicle on the corner directly opposite where defendant was located, "facing right at him."
Despite the cold, rainy weather, defendant did not seek shelter, even when the rain came down hard. Vautier watched as defendant participated in "a hand-to-hand transaction" with an unknown individual. Vautier saw the individual approach defendant, money in hand, then make an exchange, after which defendant appeared to be fumbling in his jacket pockets while the two men walked and talked together. They then separated and defendant returned to his original position at 11 North 25th Street.
Vautier did not move in to arrest defendant in the hopes he would observe defendant using "a stash location" to store his drug supply. After observing defendant engage in four more "hand-to-hand transactions" over the course of thirty to thirty-five minutes, Vautier determined that defendant kept the drugs on his person rather than at a stash location. At 10:13 a.m., Vautier radioed police units standing by to move in and arrest defendant. To avoid having his car identified as a police undercover vehicle, Vautier left the scene and did not participate in defendant's arrest. Two bags of cocaine, weighing .06 grams, and one bag of heroin, weighing .07 grams, were recovered from defendant. Defendant also possessed $618 in the following denominations: one $50 bill, eighteen $20 bills, ten $10 bills, fifteen $5 bills, and thirty-three $1 bills.
On appeal, defendant's counsel raises the following points:
I. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING OFFICER VAUTIER TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM, DUE PROCESS, A FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL. (Partially Raised Below.)
II. THE DEFENDANT'S MANDATORY EXTENDED-TERM SENTENCE OF 9 YEARS WITH 4 1/2 YEARS OF PAROLE INELIGIBILITY FOR POSSESSION OF CDS WITHIN 1000' OF A SCHOOL IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
In a pro se supplemental brief, defendant raises the following additional arguments:
I. DEFENDANT, MARK RODRIGUEZ'S CONVICTION FOR COUNT TWO POSSESSION [WITH INTENT] TO DISTRIBUTE, AND COUNT THREE, [POSSESSION WITH INTENT] TO DISTRIBUTE WITHIN A 1,000 FEET, OF THE INDICTMENT SHOULD BE REVERSED ON THE GROUNDS THAT HIS REPRESENTATION AT TRIAL WAS INEFFECTIVE, CONSTITUTING A VIOLATION OF HIS RIGHT TO COUNSEL AS GUARANTEED UNDER THE NEW JERSEY AND THE UNITED STATES CONSTITUTIONS.
A. TRIAL COUNSEL FAILED TO PRESENT AND PURSUE A VIABLE DEFENSE ON BEHALF OF THE DEFENDANT UNDER 2C:2-8, INTOXICATION TO REFUTE THE EXISTENCE OF A PARTICULAR STATE OF MIND, AS WOULD ...