On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-01-0066.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Fuentes and Gilroy.
Defendant Kwame Johnson was tried before a jury and convicted of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5b(13), and possession of cocaine and heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. After granting the State's motion for an extended term under N.J.S.A. 2C:43-7c and N.J.S.A. 2C:43-6f, the court merged the possessory and intent offenses with the school property offense, and sentenced defendant to a term of ten years, with five years of parole ineligibility, imposing the mandatory fines and penalties. We affirm.
In the early morning hours of November 4, 2004, Asbury Park Police Officer Jose Cruz responded to the intersection of Springwood and Ridge Avenues to follow up on an anonymous call requesting service. As he approached in his marked police car, Cruz observed a man standing on the corner. When Cruz reported his observations to dispatch, the man (subsequently identified as defendant) began walking south on Ridge Avenue. As Cruz followed him, defendant repeatedly looked back at Cruz before dropping two packages over his shoulder.
Cruz immediately stopped his car and picked up the two packages defendant had dropped; they contained 48 smaller glycine packages of heroin. At this point, Asbury Park Police Officer Brian Townsend pulled in front of Cruz's patrol car, stopped defendant and placed him under arrest. During a search of defendant's person, Townsend recovered an 8.27 gram rock of cocaine from defendant's thermal underwear, a cell phone, and $184 in cash from his pants pocket.
At trial in addition to Cruz, the State presented the testimony of Asbury Park Detective Barry Graves, whom the court qualified and admitted as an expert in the field of possession, packaging and the distribution of controlled dangerous substances. After being asked a hypothetical question mirroring the facts of this case, Graves opined that the individual possessed the illicit drugs with the intent to distribute. He based his opinion on the location of the arrest, the quantity of drugs confiscated, and the amount of cash the individual had on his person.
Defendant testified in his own defense. He admitted to possessing the cocaine and heroin, but denied that he intended to sell or otherwise distribute the drugs. The jury convicted defendant on all counts.
Against these facts, defendant now appeals raising the following arguments:
THE STATE'S RELIANCE ON AN ABSENTEE WITNESS TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND 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 JERSY CONSTITUTION. (Not Raised Below)
THE USE OF EVIDENCE OF THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST TO PROVE HIS GUILT VIOLATES THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ...