On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 03-02-0144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges C.L. Miniman and Lihotz.
Defendant Lucmane Joseph Dazilme appeals from a February 3, 2006, judgment of conviction for third-degree possession of a controlled dangerous substance, to wit, heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was sentenced to a four-year term of incarceration without parole disqualification to be served consecutively to the sentences he was already serving on two separate, prior drug convictions in Union County. Defendant received credit for two days time served in October 2002 and 994 days gap-time credit for time spent in custody from May 16, 2003, through February 2, 2006. As a consequence, the real time to be served consecutively to the two other sentences was 465 days at the time of sentencing. This appeal followed.
Undercover narcotics officers conducting surveillance from a concealed location in Elizabeth on October 8, 2002, observed defendant approach the south end of Jefferson Park on a bicycle, stop, put the bicycle down, and stand next to a tree near the park. One officer recognized defendant and knew him on a first-name basis. Every time a car drove down the street, defendant would hide behind the tree, which the officer considered suspicious.
After five minutes, two Hispanic males approached defendant, spoke with him briefly, walked out of the officer's sight, and returned in two minutes. They again spoke to defendant, who then walked twenty feet to a grassy area near the sidewalk. Defendant picked up a brown paper bag, removed a small item, and replaced the bag. Defendant walked back to the tree, handed the item to the two men, and accepted money in exchange. The two Hispanic men left the area promptly.
Defendant was arrested by another officer when defendant left the area on his bicycle about ten minutes later. In the search incident to defendant's arrest, the police did not find any drugs on his person, but did find $718 in cash. The brown paper bag, which contained heroin in one glassine fold, was recovered from the grassy area.*fn1
After the State rested at trial, defendant called a family friend, Gary Delmas, and also testified in his own behalf. Delmas testified as follows: On the night in question defendant met him at the bus stop at the intersection of North Broad Street and Magnolia Avenue when defendant returned home from work at 9:10 p.m. The pair walked to the QuickChek on Magnolia Avenue, but it was closed. They then headed toward Delmas's home, but were stopped on the way by a group of plain clothes officers who arrested defendant and took Delmas's cell phone. No more than a few minutes had elapsed since Delmas arrived at the bus stop. Delmas claimed that he filed a complaint about his cell phone with Internal Affairs at the Elizabeth Police Department.
During the direct examination of Delmas, Delmas testified that defendant "told me he wanted to go [buy a] money order. He was going to get it from 400 North Broad Street." The State then objected that the answer was inadmissible hearsay. At sidebar, defense counsel argued that the testimony was admissible under the hearsay exception for statements of then-existing state of mind. The judge sustained the objection. The jury was not instructed to disregard this testimony given by Delmas.
Defendant then testified in the following manner: First, defendant denied ever being at Jefferson Park on the night of October 8, 2002. Rather, he went to North Broad Street to purchase a money order so that his mother could pay the rent. He met Delmas at the bus stop so that Delmas, who was under eighteen, would not have to be alone after curfew. Delmas arrived at the bus stop at 10:00 p.m. The store on North Broad was closed and so defendant and Delmas went to the QuickChek on Magnolia, which was also closed. Defendant and Delmas then began to walk to Delmas's home when defendant was arrested.
The arresting officer testified on rebuttal that defendant was alone when he was apprehended. The captain in charge of Internal Affairs also testified in rebuttal, stating that there was no record of a complaint filed by Delmas.
The jury returned its verdict on October 4, 2005, and defendant appeared for sentencing on February 3, 2006. At that time defendant was serving an aggregate sentence of thirteen years with no parole for five-and-a-half years. Defendant argued that he had not had a conviction for possession with intent for some period of time and it would be appropriate to impose a concurrent sentence, claiming that his last three convictions were for simple possession. In addressing the judge, defendant insisted that he was not guilty.
The State argued for consecutive sentencing because this was defendant's fifth indictable conviction and he had been adjudicated delinquent three times. The State pointed out that defendant was serving a nine-year sentence with four years of parole ineligibility for an offense that occurred on May 1, 2002. He was also serving a five-year sentence with sixteen months of parole ineligibility for an ...