On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0576-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and C.S. Fisher.
Tried to a jury, defendant Kareem Goines was convicted of all counts of an indictment charging him with possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35- 10(a)(1) (count one); possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and possession with intent to dispense or distribute cocaine within 1,000 feet of school property used for school purposes, contrary to N.J.S.A. 2C:35-7 (count three). Prior to sentencing the State moved for an extended term pursuant to N.J.S.A. 2C:43-6(f). The sentencing judge granted the motion, and on April 21, 2006, the court merged the convictions on the first two counts and committed the defendant on the school zone conviction to an extended term of eight years with a three-year period of parole ineligibility.
The following testimony was adduced at trial. Jersey City police officer Dino Nerney testified at trial that at approximately 7 p.m. on December 12, 2004, he was conducting narcotics surveillance from the back of an unmarked undercover SUV in the area of Bayview Avenue and Martin Luther King Drive (MLK). He was backed up by officers Edward Nieves and Scott Rodgers as a "perimeter unit" in another unmarked vehicle. Nieves testified that the area was chosen for surveillance because, "its a known high narcotics area" and complaints of drug activity had been received from neighborhood residents.
When he parked, Nerney saw a man later identified as defendant standing on the southwest corner of MLK wearing a camouflage coat, blue jeans, and a beige knit cap. After about two minutes, a black woman approached the south corner of MLK and waved to the defendant. Nerney was about fifteen to twenty feet away and had a clear, unobstructed view as the defendant crossed the street to meet the woman. After a brief conversation, the woman handed defendant what Nerney described as "green paper currency," that defendant placed in his pocket. The defendant and the woman walked in front of Nerney's SUV and stopped a few feet from a driveway to the Sacred Heart School. Using binoculars, Nerney saw defendant walk five or ten feet away from the woman, bend down, and pick up a clear plastic bag from the grass next to the sidewalk curb. He removed a small, shiny object from the bag, replaced the bag in the grass, walked back to the woman and handed her the object. The woman then walked away, heading eastbound on Bayview Avenue toward Ocean Avenue.
Based on his training and experience, Nerney concluded that he had witnessed a drug transaction. He radioed Nieves and Rodgers to stop the woman. But he then saw defendant start to follow her. Nerney suspected that defendant was making sure that the woman was not arrested. He explained it was common practice for drug dealers to follow a buyer to see whether they were stopped by the police. As a result, Nerney instructed the other officers to "back off" and not arrest the woman so that he could focus upon the activities by defendant as a drug seller.
After a moment defendant crossed the street and entered a house in the middle of the block and which Nerney believed to be 156 Bayview Avenue, although he later said he was not sure of the exact address. After about five minutes, defendant came out of the house wearing the same clothes. He walked past the SUV, and Nerney said he was "100 percent sure" it was the same man he saw selling drugs. Nerney radioed Nieves and Rodgers to arrest defendant and told them that defendant's "stash" was on the ground near the school. After defendant was arrested, Nerney circled the area in the SUV to look for the woman purchaser, but he was unsuccessful.
Officer Edward Nieves testified that he and Officer Rodgers were on duty in an unmarked vehicle as a perimeter unit working with Officer Nerney who was in the area of Bayview Avenue and MLK. Nieves and Rodgers sat a few blocks away waiting for Nerney to provide them with any description of individuals who needed to be stopped or arrested. Nerney eventually radioed the unit to stop a black female wearing a black leather jacket and blue jeans, but as they started toward Bayview and MLK, Nerney instructed them to back off. Later Nerney radioed them with a description and location of defendant and told them to stop him. After Nieves and Rodgers stopped defendant west of MLK on Bayview Avenue, Nerney radioed Rodgers to check the area for a stash location while Nieves remained with the defendant. Once Rodgers returned with a plastic bag containing drugs, Nieves placed defendant under arrest. He then searched the defendant and found two $5 bills and thirty-one $1 bills in his jacket pocket.
Rodgers testified that he and Nieves received the description of a suspect from Nerney and were instructed to stop him. Rodgers said when they stopped defendant, they advised him of the investigation, patted him down for weapons and made sure that he was secure. He then radioed Nerney, who gave him directions to where he believed the stash was located. Rodgers said he found the stash near the Sacred Heart School by a black metal fence with a small curb. The stash was in a bag with a butterfly logo placed in the grass on the inside of the curb so it could not be seen from the street. The bag contained twenty-six vials of a substance later identified as cocaine.
Sergeant Wally Wolfe of the Jersey City Police Department was qualified as an expert in the area of narcotics packaging and distribution. He testified that a vial of cocaine is typically sold for $10 on the streets of Jersey City. He said a dealer usually does not have his cocaine stash on his person, but keeps it within his sight. He opined that the quantity of cocaine and its location indicated an intent to distribute.
On cross-examination Wolfe answered that the area of Bayview Avenue and MLK was a well-known cocaine market and that in such a high-narcotics area there could be a myriad of stash locations. He said that drug dealers carefully watched their stash and that it was not common for a dealer to leave his stash in a clear plastic bag lying in the grass. He also said that it would have been unwise for a dealer to leave his stash and walk into a residence.
The defense witnesses were George Kelly, Jr. and Graham Speaks. Kelly testified he lived at 156 Bayview Avenue in Jersey City, the house that Nerney believed defendant entered after the transaction. Kelly said that he recognized Goines and believed that he lived down the street at 150 Bayview Avenue. Speaks testified he lived at 150 Bayview Avenue and that Mary Speaks, defendant's grandmother, also lived there. Speaks testified that on Sunday, December 12, 2004, he returned home from church at about 2 p.m. He saw defendant in the guest room watching a pro football game and joined him until just before dinner at 6 p.m. After dinner he and defendant watched the game until it was over. He said defendant left the house at about 7 p.m.
On appeal, defendant raises the following legal arguments:
POINT I - THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II - The DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ACCURATELY AND COMPLETELY ON THE LAW OF SCHOOL DRUG CRIMES. (Not Raised Below.)
POINT III - STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below.)
POINT IV - DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION.
POINT V - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below.)
POINT VI - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below.)
POINT VII - THE DEFENDANT'S SENTENCE WAS EXCESSIVE.
Defendant's major argument is that the trial judge erred in failing to grant his motion for judgment of acquittal at the conclusion of the trial because the State's proofs were insufficient to convict him of distribution or possession with intent to distribute a controlled dangerous substance within 1,000 feet of school property and, alternatively, that the trial judge failed to adequately instruct the jury on the issue of whether the property in question was actually used for school purposes at the time of the offense.
A motion for judgment of acquittal will generally be denied if there is sufficient evidence to warrant conviction. R. 3:18-1. The trial judge must evaluate the sufficiency of the evidence in determining whether the State met its burden to all elements of the charged crime under the following standard:
Whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony and all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
The applicable statute, N.J.S.A. 2C:35-7, provides that a person who distributes or possesses a controlled dangerous substance with the intent to distribute within 1,000 feet of school property is guilty of a third-degree offense, and a person convicted of this offense must serve a mandatory prison term. The State is obliged to prove that the defendant was within the 1,000 foot distance and that the property in question was used for school purposes "regularly, consistently, and actually." State v. Thomas, 132 N.J. 247, 258-59 (1993). It is not necessary for the State to prove that defendant intended to distribute drugs within the 1,000 foot zone as long as it can establish that possession was within the zone coupled with an intent to distribute generally. State v. Bethea, 243 N.J. Super. 280 (App. Div.), certif. denied, 122 N.J. 401 (1990). The State need not prove that the defendant knew the property in question was school property, but it must prove that an objectively reasonable person would know it. State v. Ivory, 124 N.J. 582, 592-93 (1991); State v. White, 360 N.J. Super. 406, 412 (App. Div. 2003).
The use of the property for school purposes is an essential element for the State's requisite proofs. Ivory, supra, 124 N.J. at 587. As we stated in State v. King, ...