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State v. Lopez

February 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VICTOR LOPEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. I-05-06-0673.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Wefing and Yannotti.

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1); and second-degree possession of a controlled dangerous substance, heroin, with intent to distribute within five hundred feet of a public facility in violation of N.J.S.A. 2C:35-7.1. At the conclusion of the State's case, the trial court dismissed a charge of employing a juvenile in a drug distribution scheme in violation of N.J.S.A. 2C:35-6. The trial court granted the State's motion to impose an extended-term sentence under N.J.S.A. 2C:43-6(f). It merged the first and third convictions 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, to be served consecutively to a sentence defendant was serving at the time of his trial. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was arrested on Wood Street in Trenton in the mid-morning of March 14, 2005. Wood Street is a small-one way street that runs between Stockton and Montgomery Streets in an area known for narcotic trafficking. Detectives Woodhead and Mulryne of the Vice Enforcement Unit of the Trenton Police Department set up surveillance on the roof-top of a five-story building on Wood Street. The weather was clear, and they were equipped with binoculars. They observed Irven Higgenbotham and Van Wells standing in front of 28 Wood Street. Higgenbotham and Wells were known to the detectives from other investigations. A white woman walked down Wood Street, and the detectives, through their binoculars, saw what they recognized as a narcotics transaction. The woman walked away and was not placed under arrest.

After a short period of time, they saw a silver Acura drive up. Defendant got out of the driver side, and Alphonso Slaughter got out of the passenger side. The officers recognized both men. The two approached Higgenbotham and Wells, who were on the porch of 28 Wood Street. A white male walked down Wood Street and the officers saw defendant wave to the man and then gesture toward Slaughter. Slaughter went to the vehicle, reached in and retrieved something. The man just stood there, some distance away until defendant waved him over. Slaughter and the man approached each other, and the two engaged in a hand-to-hand transaction which the detective recognized as a narcotics transaction. At that point defendant looked up to the roof of the building where Woodhead and Mulryne were and shouted up to the two detectives that he saw them. The detectives summoned back-up officers and the four men were arrested. When Slaughter was arrested, he discarded a packet that the officer picked up; it contained five decks of heroin.

At the time of the first narcotics transaction, the detectives had seen Wells go to the rear of 28 Wood Street and return with a potato chip bag from which he retrieved an item he gave to the woman. When she left, he returned the bag to the spot from which he had retrieved it. The arresting officers located the potato chip bag; it contained 133 decks of heroin. When the four men were arrested, Wells had $429 in his possession, Higgenbotham $45, Slaughter $830 and defendant $655.

Defendant raises the following arguments on appeal.

POINT I.

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 JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT THE DEFENDANT IS RESPONSIBLE FOR THE CRIMINAL ACTS OF THE CO-DEFENDANT ONLY IF HE SHARES A COMMON CRIMINAL PURPOSE WITH THE CO-DEFENDANT AND AGREES TO PARTICIPATE IN THE CRIME WITH THE SAME CRIMINAL STATE OF MIND. (Not Raised Below)

POINT II.

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 JERSEY CONSTITUTION WAS VIOLATED WHEN THE PROSECUTOR INFORMED JURORS THAT THE STATE'S EXPERT WITNESS WAS RENDERING OPINIONS ABOUT ...


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