On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Wefing and LeWinn.
Tried to a jury, defendant was found guilty of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1); second-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7; and hindering apprehension, N.J.S.A. 2C:29-3(b). At sentencing, the trial court merged the possession conviction and the school zone conviction into the conviction for possession with intent to distribute and sentenced defendant to six years in prison, with a three-year period of parole ineligibility. The trial court also sentenced defendant to a concurrent three-year term of incarceration for hindering. Fines and penalties were also assessed. Defendant has appealed her convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In the early evening of April 3, 2004, members of the Plainfield Police Department conducted a raid on defendant Acevedo's apartment on the second floor of 305 Madison Avenue. She was present, as were a number of other individuals. Lieutenant Newman of the Plainfield police entered the apartment bedroom and defendant was there. As he entered, he saw her toss a black pipe and a tin can out the bedroom window. They landed on the roof of the first floor of the building. Lieutenant Newman climbed out the bedroom window and retrieved the pipe and can, in which he found a quantity of cocaine and a small amount of currency. Additional cocaine was found in the apartment, together with approximately $1800. The total amount of cocaine recovered was more than one ounce. Defendant was tried together with one of the other individuals apprehended that day, Bienvenido Contreras. He was charged with the three narcotics violations, but not hindering. The jury found him guilty as well.*fn1
On appeal, defendant Acevedo raises the following arguments:
POINT I: THE DEFENDANT WAS DENIED HER RIGHT TO A FAIR TRIAL AS A RESULT OF THE EXPERT TESTIMONY ELICITED FROM DETECTIVE MARTIN LYNCH WHO TESTIFIED TO THE ULTIMATE ISSUE OF THE DEFENDANT'S GUILT REGARDING THE CHARGES OF POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS AND POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN A SCHOOL ZONE, THEREBY INTRUDING UPON THE JURY'S EXCLUSIVE PROVINCE TO DETERMINE GUILT OR INNOCENCE. (NOT RAISED BELOW)
POINT II: THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASON FOR THE STATE'S DECISION REFUSING TO WAIVE SOME OR ALL OF THE PAROLE DISQUALIFIER PURSUANT TO N.J.S.A. 2C:35-7. (NOT RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
During the course of defendant's brief trial, the State presented Detective Martin Lynch of the Union County Prosecutor's Office as an expert witness. Based upon his experience and training, Detective Lynch was qualified as an expert witness in the identification, packaging, use, sale and distribution of narcotics. He was then presented with a hypothetical question which incorporated testimony that had been presented to the jury and asked whether, in his opinion, the narcotics had been possessed with the intent to distribute. He said they had been. This, defendant argues, represented an improper intrusion upon the function of the jury.
Defendant's argument, however, is premised upon dissenting opinions of Justice Albin in State v. Summers, 176 N.J. 306 (2003), and State v. Nesbitt, 185 N.J. 504 (2006). We, however, are bound by the majority opinions in those matters, as well as State v. Odom, 116 N.J. 65 (1989).
Defendant's second point, with respect to the period of parole ineligibility, is moot, defendant having served that entire period. Her contention that her sentence is manifestly excessive lacks merit. Her sentence was at the ...