On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-06-0538.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Lisa, Reisner and Sapp-Peterson.
Defendant Malik Nelson appeals from his 2006 conviction and sentence for third-degree unlawful possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). The court merged Count One into Count Two, and sentenced defendant to a fifteen-year extended term with a seven-year parole disqualifier. We affirm.
The conviction arose out of a surveillance operation conducted on April 30, 2005 around 5:00 p.m. by Officer Thomas Gramp, an eight-year veteran of the Bridgeton Police Department assigned to the Amity Heights Housing Complex (Amity) as a uniformed police officer. At that time, he was showing Amity's camera system to the partner with whom he was working that day because the partner was unfamiliar with the system. On the monitor, he observed defendant exit a vehicle and approach an individual later identified as his cousin. The two men engaged in conversation. Gramp knew defendant as a person with a prior history of engaging in illegal narcotics activities. Gramp also knew that defendant did not reside in the complex. Defendant then approached another person. Gramp did not recognize that person from his surveillance point, but after approaching the men minutes later, he recognized the individual as Joshua Scurry. Scurry was holding a black bag that defendant took from him and opened. Defendant reached into his right pants pocket and removed something and then placed his right hand in the black bag. He removed his hand from the bag and "knotted off or closed up" the bag. Gramp next observed defendant put something else in his back pants pocket. Throughout this entire sequence of events, Gramp testified that defendant never spoke to Scurry. Defendant looked from "side to side, all over the entire parking lot area. And then he handed the bag back to Mr. Scurry."
Based upon his training and experience, Gramp believed that he may have witnessed a drug transaction. He explained that he "could think of no reason why Mr. Nelson would put something into the bag and give the bag back that he just got." He radioed Officer Holliday and asked him to "respond quickly" and hold the subject "with the black bag wearing a black jacket." When Officer Holliday arrived at the scene, he was joined by Gramp and another officer, Patrolman McMullen. Gramp asked defendant if he had put something in the black bag, and defendant denied doing so. Gramp pointed to the security cameras and asked defendant again whether he had placed something in the black bag. Defendant once again denied doing so. Gramp then told defendant to "sit tight for a minute." He then proceeded to ask Scurry, who was being detained by Officer Holliday, what defendant placed in the bag, and Scurry also denied that defendant had placed anything in the bag. At that point, Officer Gramp took the bag from Holliday, untied it, and looked inside, where he saw a clear plastic bag containing suspected cocaine and T-shirts. He then placed defendant and Scurry under arrest.
Prior to trial, defendant and Scurry moved to suppress the evidence seized. The court denied the motion, finding that both the arrest and the seizure of the evidence were lawful.
On March 20, 2006, the State provided timely notice to defendants of its intent to introduce, at the time of trial, the laboratory report confirming that the suspected narcotics seized from the black bag were cocaine. Neither defendant filed an objection to the admissibility of the report within the requisite ten days set forth under N.J.S.A. 2C:35-19(c). However, co-defendant Scurry's attorney objected to the admissibility of the report in a trial memorandum filed on May 22, 2006, the eve of the first scheduled trial date. Scurry objected to the admissibility of the lab report without the testimony of the chemist. No hearing was conducted at that time. When trial commenced on September 26, 2006, defendant's attorney merely "join[ed] in with" Scurry's "application." The objection was based solely upon constitutional grounds pursuant to Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365-66, 158 L.Ed. 2d 177, 194 (2004). Scurry's counsel argued that Scurry had the right to raise, at any time, his sixth amendment right to confront the witness that "produced [the lab] certification." He urged proof that the item seized was cocaine is an essential element the jury must determine from the State's proof "from either the testimony of the . . . chemist, or the laboratory certificate." Defendant joined in Scurry's motion at that time. The court ruled that defendants waived their constitutional right to challenge the admissibility of the lab report because no objection to the admissibility of the report was filed in accordance with the provisions of N.J.S.A. 2C:35-19(c).
Defendants also objected to the testimony of the State's proffered expert, who proposed to testify on the characteristics of possession of drugs with the intent to distribute. The court permitted the testimony over the objection. During the expert's testimony, Scurry's attorney raised a further objection, arguing that the testimony had gone beyond that which was permissible opinion testimony. Defendant's attorney joined in the motion, arguing that
[a]ll of the testimony regarding what's typical and what's usual, you know, may be somewhat informative to the jury, and information that is beyond their common everyday knowledge. But as [Scurry's] counsel pointed out, the question at this point, but for the fact that it's prefaced with this hypothetical, is a question that is asking precisely what happened in this case with, you know, the facts. And then asking this witness to give an opinion as to what happened. Whether there was a possession with intent to distribute. So it's going to the ultimate issue. And I think the jury and only the jury can decide. [(Emphasis added).]
The court agreed and sustained the objection to the question.
The jury convicted defendant of both charges. Defendant moved for a judgment of acquittal. Defendant argued that the State failed to prove beyond a reasonable doubt that defendant possessed cocaine with the intent to distribute, noting that no drugs were found in his possession. The court denied the motion, finding that there was ample evidence before the jury from which it could find that defendant possessed the cocaine and possessed it with the intent to distribute.
At sentencing, the court found that there was a risk that defendant would engage in further criminal activity, N.J.S.A. 2C:44-1(a)(3); the extent and seriousness of his prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court "plac[ed] very little credibility on the defendant's most recent claims that he . . . has substantial substance abuse issues." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF THE WARRANTLESS SEARCH AND SEIZURE.
a. DETECTIVE GRAMP LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO CONDUCT AN INVESTIGATORY STOP OF THE APPELLANT.
b. THERE WAS NO PROBABLE CAUSE TO ARREST THE APPELLANT, THEREFORE THE SEARCH WAS ILLEGAL.
THE EXPERT TESTIMONY OF DETECTIVE MICHAEL DONATO IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY THEREBY CREATING UNDUE ...