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State v. Bell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 13, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMISON BELL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0573.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 16, 2008

Before Judges Cuff and Fisher.

Following a jury trial, defendant Jamison Bell was found guilty of third degree possession of a controlled dangerous substance (CDS) (cocaine), 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) and -5b(3) (Count Two); and third degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Three). After merging Counts One and Two with Count Three, the judge imposed a mandatory extended term of seven years with a three and one-half year period of parole ineligibility. The appropriate fines, penalties and assessments were also imposed.

On December 15, 2004, two Passaic police officers commenced surveillance of the intersection of Autumn and Main Avenues from the rooftop of a garage that overlooked the intersection. From this vantage point, the officers could observe a gas station and the nearby T & L Lounge.

Not long after midnight, the officers observed a black Acura enter the gas station. It did not approach the gas pumps. One of the officers recognized defendant as the passenger. The officers observed an unidentified man approach the car on the passenger side. After a brief conversation between defendant and the man, the officers observed an exchange of what appeared to be currency for a small item taken by defendant from the pocket of his sweater. The officers observed two similar interactions in quick succession. After the third exchange, the Acura left the gas station.

The officers then turned their attention to the T & L Lounge. Soon thereafter, the officers observed the black Acura on Main Avenue. Defendant was still in the front passenger seat. A man approached the passenger side of the vehicle and the officers observed another exchange of paper for a small object taken from the pocket of defendant's sweater. At this point, the officers left their observation point and approached the Acura. As they did so, defendant left the car. Defendant was arrested. A search of the sweater pocket produced a single, small plastic bag containing a white, rock-like substance.

On appeal, defendant raises the following issues:

POINT I.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF OTHER, UNRELATED DRUG TRANSACTIONS TO PROVE THAT THE DEFENDANT POSSESSED CDS WITH THE INTENT TO DISTRIBUTE (Not Raised Below)

A. THE STATE FAILED TO LAY A PROPER FOUNDATION FOR THE ADMISSION OF THAT EVIDENCE.

B. EVIDENCE OF THESE OTHER, ALLEGED DRUG TRANSACTIONS WAS UNFAIRLY PREJUDICIAL.

POINT II.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S USE OF CHARACTER ASSASSINATION TO PROVE HIS CASE. (Not Raised Below)

POINT III.

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below)

POINT IV.

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT V.

THE SENTENCE IS EXCESSIVE

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

The arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We offer the following brief comments.

In Point One, defendant argues for the first time on appeal that expert testimony was required to establish intent and that the same observations that would have formed the basis of the expert testimony should have been barred pursuant to N.J.R.E. 404(b). The State is not required to produce an expert witness in every case in which a defendant is charged with intent to distribute CDS. State v. Vasquez, 374 N.J. Super. 252, 264 (App. Div. 2005). Here, as in Vasquez, a trained officer observed several likely drug transactions and observed defendant take the suspected CDS from a pocket in his sweater. No expert was required to testify that the single plastic bag removed from defendant's pocket at the time of arrest was the remainder of the inventory defendant intended to distribute that night.

The evidence of other unrelated surveillance operations and observations of exchanges between persons other than defendant were not designed and could not reasonably be construed to implicate defendant in those earlier transactions. The testimony was simply designed to lay an appropriate foundation for the officer's interpretation of his current observations. Moreover, we fail to discern how the arresting officer's prior surveillance experience is any less prejudicial than a similar account by the expert defendant now considers necessary.

In Point Two, defendant argues that the prosecutor engaged in "character assassination" during his summation when he referred to him as a drug dealer. Admittedly, the term drug dealer is a pejorative term; however, defendant was charged with possession of CDS with intent to distribute. A person who engages in such activity does, in fact, deal drugs. More importantly, read in context, the remarks were made in the course of an argument that the evidence demonstrated that defendant possessed CDS that evening with the intent to distribute.

Affirmed.

20081113

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