On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 06-06-0887.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant Kimsi Vaughn appeals from a March 23, 2007 judgment of conviction (JOC) entered following a jury verdict finding him guilty of the two counts charged against him in Indictment Number 06-06-0887, returned by an Ocean County Grand Jury: third degree possession of a controlled dangerous substance (CDS), namely cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one), and second degree possession of a CDS in a quantity of one-half ounce or more, but less than five ounces, with the intent to distribute, contrary to 2C:35-5a(1) (count two).*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
The matter was tried to a jury over a period of three days in January 2007. At the conclusion of trial, the jury found defendant guilty as charged.*fn2 On March 16, 2007, the trial judge, sitting as the trier of fact, also found defendant guilty of the disorderly persons offense of possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2. On that same date, at his sentencing proceeding, defendant moved for a new trial. That motion was denied. Because defendant had previously been convicted for distribution or possession of CDS with intent to distribute, the court determined, without contest from defense counsel, that defendant was subject to extended term sentencing, pursuant to N.J.S.A. 2C:43-6f. The court then sentenced defendant on count two to twenty years in prison with a ten-year period of parole ineligibility, plus applicable penalties and fees. Count one was merged into count two, as was the conviction on the disorderly persons offense. On May 24, 2007, defendant filed the instant appeal.
The pertinent facts are as follows: on April 6, 2006, Officer Oscar A. Valmon and other law enforcement officers of the Lakewood Township police department executed a search warrant at 205 Bruce Street. When the officers entered the premises, they saw defendant and co-defendant Willie White sitting in the living room. The officers placed both men in "flex cuffs" so that they could not attempt to interfere with the search. Valmon then presented a copy of the search warrant to the two men. Prior to arresting the two men or issuing them a Miranda warning, Valmon asked them where the drugs were located. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant responded "in the night stand," and co-defendant remained silent.*fn3
Thereafter, Valmon and the other officers conducted a search of the premises, documenting the items seized and preserving them as evidence. In the course of their search, the officers found the following: in the first bedroom, crack cocaine, digital scales, a penny scale and packaging materials; and, in the second bedroom on top of a dresser, co-defendant's wallet containing his identification, a quantity of crack cocaine, some packaging equipment and materials and a digital scale. The officers also found an envelope addressed to defendant.
At trial, Valmon testified that on prior occasions he had observed defendant either coming or going from 205 Bruce Street. He further testified that the residence did not contain any evidence of paraphernalia that could be used to ingest crack cocaine. Captain Jeffrey Bissey of the Ocean County Prosecutor's Office, testifying as an expert on behalf of the State, indicated that the quantity of cocaine in conjunction with the type of paraphernalia seized at the residence suggested that the drugs were possessed with the intent to distribute, rather than for personal use.
On appeal, defendant presents the following arguments for our consideration:
POINT I: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE APPLICATION FOR A MISTRIAL FOLLOWING A POLICE OFFICER'S TESTIMONY ABOUT A STATEMENT OBTAINED IN VIOLATION OF THE DEFENDANT'S MIRANDA RIGHTS.
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In a supplemental brief, defendant raises the following arguments for our consideration:
ARGUMENT I: DOES THE TRIAL COURT COMMIT ERROR BY VIOLATING THE SUPREME COURT'S DIRECTIVE OF MODEL VOIR DIRE QUESTIONS, THEREBY DENYING A SUBSTANTIAL RIGHT?
A.) CIRCUMVENTION OF THE SUPREME COURT'S MANDATE, IN THE ABSENCE OF AN EXPRESSED WAIVER BY DEFENDANT, CREATES A PRESUMPTION OF PREJUDICE AMOUNTING TO PLAIN ERROR.
ARGUMENT II: APPELLANT WAS PREJUDICED BY THE TRIAL COURT'S SUSTAINING OF INADMISSIBLE EVIDENCE, AND THE FAILURE TO GIVE TIMELY CURATIVE INSTRUCTIONS TO CUMULATIVE TRIAL ERRORS.
Defendant contends that the following portion of Valmon's testimony warranted a mistrial because the court had ruled that the disclosed information pertaining to ...