On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Messano and Chambers.
Defendant Raul Calderon appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). After granting the State's motion to impose a mandatory extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f), the judge sentenced defendant to an eight-year term of imprisonment with four years of parole ineligibility. On appeal, defendant raises the following points for our consideration:
POINT ONE THE TRIAL COURT ERRED IN GIVING THE JURY A "FLIGHT" INSTRUCTION OVER DEFENSE COUNSEL'S OBJECTION AS IT WAS NOT SUFFICIENTLY SUPPORTED BY THE EVIDENCE BELOW.
POINT TWO THE TRIAL COURT ERRED IN BEGINNING THE SECOND DAY OF TRIAL WITHOUT DEFENDANT'S PRESENCE IN VIOLATION OF HIS CONFRONTATION AND DUE PROCESS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS. (partially raised below)
POINT THREE THE TRIAL COURT'S FINDINGS OF AGGRAVATING FACTORS THREE AND NINE CONSTITUTED JUDICIAL FACT FINDING BEYOND PROOF OF [DEFENDANT'S] PRIOR CONVICTION THUS IMPERMISSIBLY INVADING THE PROVINCE OF THE JURY UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The State's first witness, police officer Richard Schubert, testified that on September 26, 2003, shortly after 9:00 p.m., he, along with fellow officers Ray Reilly and Carlo Caparuvva, was in an unmarked police car in the vicinity of 307 Elizabeth Avenue, in Elizabeth. Schubert observed defendant, a man of "considerable stature," and five or six other individuals standing in front of a Chinese restaurant at that location. He saw a car stop near the group, and a man, later identified as Tomas Gonzalez, exited the vehicle and walked with defendant down an alleyway next to the restaurant.
Although Schubert's car was parked some distance away, he testified that he was able to see Gonzalez hand defendant some money and defendant hand Gonzalez an "unknown object." Gonzalez returned to his car, and, as he drove away, Schubert and his fellow officers followed in their car. Gonzalez made a left turn down an driveway that ran between Elizabeth Avenue and neighboring First Avenue a short distance from the restaurant, and the officers "activated [their] flashing lights," and possibly the "air horn siren," before they stopped Gonzalez's car.
In order to follow Gonzalez, the police car moved directly past the Chinese restaurant where defendant stood before the alleyway transaction with Gonzalez, and where he had returned afterwards, though Schubert did not recall seeing defendant as they pursued Gonzalez's vehicle. Eventually, Gonzalez was searched and arrested when the officers found a "plastic bag of cocaine in his pocket."*fn1
Schubert testified that he, along with other officers, crossed Elizabeth Avenue to return to number 307, but defendant was no longer standing on the sidewalk in front. With the permission of defendant's mother, who lived there, the officers entered an apartment above the restaurant. They eventually located defendant in "the attic apartment lying on a bed fully clothed with  a blanket pulled over him . . . . [H]e was  out of breath breathing heavy." No drugs ...