On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0573.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 ...