On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-01043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Parrillo and Messano.
Tried by a jury, defendant Percy Lee Adams was convicted of two counts of possession of drugs (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1); possession of drugs with the intent to distribute, N.J.S.A. 2C:35-3(a)(1) and N.J.S.A. 2C:35-5(b)(3); and possession of drugs in a school zone with the intent to distribute, N.J.S.A. 2C:35-7, all third-degree offenses. For purposes of sentencing, all the non-school-zone counts were merged into the two school zone counts, for which the judge imposed two extended concurrent eight-year terms with four-year periods of parole ineligibility pursuant to both N.J.S.A. 2C:43-7(c) and N.J.S.A. 2C:43-6(f). Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on June 10, 2005, New Brunswick Detective Mark Pappas was alone on routine patrol in an unmarked car and in plain clothes. Around 11:00 a.m., he arrived at the corner of Lee Avenue and Baldwin Street where he pulled to the curb to observe the area and read reports. While parked in his vehicle, Pappas saw defendant, whom he recognized,*fn1 approach Harry's Newsstand, a business on Lee Avenue approximately 150 feet from where Pappas was parked. Defendant, a light-skinned black male with long dreadlocks and wearing a white T-shirt and blue jean shorts, briefly conversed with some people and then waved another man to join him. After a short time, defendant walked across the street to a parked red van and retrieved, from under the rear bumper, what appeared to be a black, magnetic hide-a-key box, commonly used to secure a drug stash. Looking up and down the street, defendant opened the box and then placed the box back under the rear bumper. At this point, Pappas decided to move closer.
A Spanish male on a bicycle approached defendant and the two men continued along Lee Avenue towards Seaman Street. As Pappas drove past the two men, defendant turned around and began walking in the opposite direction, until he was out of Pappas' sight. Pappas then made a u-turn, parked behind the red van, and retrieved the hide-a-key box. He opened the box and discovered six packets of cocaine and one packet of heroin inside. The red van was parked within 1000 feet of Redshaw School. A check of its license plate revealed that the van did not belong to defendant.
Neither defendant nor the Spanish male were located at or near the scene and no arrests were made that day. About one month later, upon learning that police were looking for him, defendant voluntarily appeared at New Brunswick police headquarters.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE DISTRACTING AND INAPPROPRIATE BEHAVIOR OF POLICE OFFICERS PRESENT IN THE COURTROOM DURING TRIAL.
II. THE REFUSAL OF THE TRIAL COURT TO GRANT [DEFENDANT'S] REQUEST FOR A JURY INSTRUCTION ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MISIDENTIFICATION DENIED [DEFENDANT] DUE PROCESS OF LAW AND A FAIR TRIAL.
III. THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] MOTION FOR JUDGMENT OF ACQUITTAL.
IV. THE IMPOSITION OF A MANDATORY EXTENDED TERM SENTENCE OF EIGHT YEARS WITH FOUR YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ...