On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-08-0993-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 8, 2008
Before Judges Parrillo, Lihotz and Messano.
Defendant Carl Daley appeals from his conviction for possession of controlled dangerous substances (CDS), weapons offenses and eluding. Additionally, defendant asserts the sentence imposed was excessive. More specifically, on appeal defendant presents these arguments for our consideration:
POINT I. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT EXPERT TESTIMONY WITHOUT QUALIFYING THE WITNESSES AND WITHOUT PROVIDING EXPERT REPORTS.
POINT II. THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
POINT III. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
POINT IV. THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE TRIAL, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE CONVICTIONS MUST, THEREFORE BE REVERSED.
POINT V. THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE IMPOSITION OF THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.
POINT VI. THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.
We affirm defendant's conviction and remand for re-sentencing.
Trial testimony revealed these facts. On January 9, 2002, a confidential informant (CI) contacted Detectives Ronald Altmann and Troy Bailey of the Paterson Police Department and reported a Jamaican man named "Carl" would be leaving his first floor apartment at 354 East 27th Street around 2:00 p.m. to make deliveries of marijuana. The informant described Carl as 5'8" with a dark complexion, and approximately thirty-five to forty years old. The CI said Carl would be driving either a red Chevy Beretta or a gold Nissan Maxima.
Altmann showed the CI defendant's photograph and the CI confirmed defendant was the person who would be making the marijuana deliveries. A utilities check revealed defendant resided on the first floor apartment at 354 East 27th Street. At approximately 1:30 p.m., Bailey set up a surveillance at that address.
Bailey observed a gold Nissan Maxima parked in front of the residence. Shortly before 2 p.m., Bailey observed a red Chevy Beretta pull up and park in front of the Maxima. Defendant, who matched the physical description given by the CI, exited the Beretta, placed a black bag into the trunk of the Maxima, and entered the first floor apartment at 354 East 27th Street. At 2:05 p.m., defendant exited the apartment and stood on the porch looking up and down the street. Bailey observed a large bulge around defendant's waistband. While looking around, defendant walked slowly toward, then entered the Beretta. Bailey advised the backup team to move in.
Altmann, along with the back-up team of plain-clothed detectives, Ivette Otero, Marvin Sykes, and Robert Challice, arrived in an undercover van. Defendant was sitting in the car with the engine running. The detectives stopped diagonally in front of the Beretta, blocking its path. Altmann, Challice, and Otero exited the van, with their police badges displayed on chains around their necks. They yelled "police," and told defendant to shut off the car.
Altmann approached the driver's side of the vehicle and saw defendant behind the wheel. On the front passenger seat, Altmann also saw several brick-shaped, greenish brown objects tightly wrapped in clear plastic, which he suspected to be marijuana. Neither Challice nor Otero saw anything on the front passenger seat.
Defendant placed the car in reverse, then drove forward onto the sidewalk to veer around the undercover van. Altmann grabbed the door handle and unsuccessfully tried to open the door. Otero and Challice jumped to avoid being hit; Challice smashed the driver's side car window with a baton, shattering the glass as the vehicle sped away. Altmann, Otero, and Sykes followed in pursuit. The detectives lost sight of the vehicle.
Some minutes later, the Beretta was found abandoned five blocks from defendant's residence. Bailey testified he recovered approximately eighteen grams of marijuana from the vehicle. The glove compartment contained several cable television and utilities bills addressed to defendant. The "bricks" of marijuana Altmann observed were no longer in the vehicle. A search of the area to locate defendant proved unsuccessful.
Challice remained to secure defendant's apartment. After entering the common hallway on the first floor, he forcibly entered the apartment with his weapon drawn. He testified he observed a clear plastic bag of suspected marijuana on the bed in the front bedroom and noticed some paperwork bearing defendant's name and address on a bedroom dresser. He did not disturb or retrieve the drugs or the paperwork. Challice searched the ...