On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0972.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Skillman and Graves.
In a five-count indictment, defendant Joseph Jones was charged with third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35- 5(b)(3) (count two); third-degree possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7 (count three); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(b)(3) (count four); and third- degree distribution of cocaine in a school zone, contrary to N.J.S.A. 2C:35-7 (count five). A jury found defendant guilty on counts one and three and acquitted him on the remaining counts.
The trial judge granted defendant's motion for acquittal on count three but, in an unpublished decision, we reversed. State v. Joseph Jones, No. A-5312-05 (App. Div. June 4, 2007). At sentencing on July 27, 2007, the court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:43-6(f), count one was merged into count three, and the court imposed a five-year prison term with three years of parole ineligibility.
On appeal, defendant presents the following arguments:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, CONSTITUTIONALLY GUARANTEED TO HIM BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10, WHEN HIS TRIAL ATTORNEY INTENTIONALLY BROUGHT OUT BEFORE THE JURY THE FACT THAT DEFENDANT HAD AN ARREST WARRANT (NOT RAISED BELOW).
THE DEFENDANT'S CONVICTION MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
After considering the record, the briefs, and the applicable law, we are satisfied that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
In our prior opinion, we concluded that the State's proofs were "more than sufficient" to warrant defendant's conviction for possession of cocaine with intent to distribute in a school zone, and we concluded there was no basis to grant defendant's motion for a judgment of acquittal notwithstanding the jury verdict on count three of the indictment. We summarized the pertinent facts of the case as follows:
The State's proofs were that on January 7, 2005, at about 5:30 p.m., Asbury Park Police Officers Philip J. Montgomery and Lorenzo M. Pettway were working undercover in their vehicle when they saw defendant walking down Main Street. Since they knew of an outstanding arrest warrant for defendant, the officers drove around the block and parked at a nearby intersection. Using binoculars, Montgomery saw defendant "sprinkling" what he believed to be crack cocaine into the hand of an individual later identified as Robert Jones, no relation to defendant. Robert Jones then handed defendant a DVD player. The officers then moved in to make arrests. Montgomery arrested the defendant, who was still holding the DVD player. Pettway went after Robert Jones and saw him throw something to the ground. ...