On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Payne and Waugh.
Defendant Leonard Robinson was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count I); first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5(b)(1) (count II); and second-degree possession of a controlled dangerous substance with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count III). The sentencing judge merged count I into count II and sentenced Robinson to incarceration for twenty-two years, with eleven years of parole ineligibility, for count II, and a concurrent ten-year sentence, with five years of parole ineligibility, for count III. Robinson appeals both the conviction and the resulting sentence. We affirm.
At approximately 2:00 p.m. on March 9, 2006, members of the Asbury Park Police Department and the Monmouth County Prosecutor's Office attempted to effectuate the arrest of Robinson pursuant to an active warrant. Officer Eddie Raisin testified at trial that he, along with other law enforcement officers including Detective Todd Rue, went to an apartment complex at 410 Deal Lake Drive, but Robinson was not there when they arrived. Raisin and the other officers positioned themselves inside an apartment in the complex and waited for Robinson's return. Eventually, Robinson returned and, after he entered the foyer, Raisin opened the apartment door and confronted him. Robinson dropped a clear plastic bag that contained suspect cocaine. Raisin retrieved the bag and placed Robinson under arrest.
Raisin searched Robinson's person and found another plastic bag containing suspect cocaine. Following the search, Robinson was advised of his Miranda*fn1 rights. Robinson waived his Miranda rights and agreed to cooperate in the investigation. He filled out consent forms for the search of an apartment on Grand Avenue and his Chevy Tahoe. Robinson directed Raisin to a closet in the Grand Avenue apartment that contained cocaine.
After Robinson had been transported to the prosecutor's office, he again waived his Miranda rights and made a formal statement to Rue in the presence of other officers. Robinson stated that he had received a phone call to deliver twenty-one grams of cocaine to the apartment complex on Deal Lake Drive. He maintained that he acted alone and was in the process of delivering the cocaine when he was arrested. Robinson acknowledged that he acquired, on average, five to seven ounces of cocaine once every three weeks. Robinson refused to name his supplier.
Following a three-day jury trial in January 2007, Robinson was convicted. He was sentenced on April 5, 2007. The State successfully moved for an extended sentence pursuant to N.J.S.A. 2C:43-6(f). After finding four aggravating factors, N.J.S.A. 2C:44-1(a)(2), (3), (6), and (9), and no mitigating factors, N.J.S.A. 2C:44-(1)(b), the trial judge sentenced Robinson to twenty-two years of incarceration, with ten years of parole ineligibility, for count II, and a concurrent ten-year sentence, with five years of parole ineligibility, for count III.
Robinson raises the following issues on appeal:
Point I: The defendant was denied his right to a fair trial as a result of testimony gratuitously volunteered by a police officer constituting inadmissible hearsay which connected the defendant with prior criminal conduct of the same nature as the charges for which he was on trial. (Not raised below).
Point II: The defendant was denied his right to a fair trial as a result of a reference by a police officer to the ...