On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-07-1487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Parker and Yannotti.
Defendant James F. Boyd was charged under Atlantic County Indictment No. 05-07-1487 with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of a CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four).
On April 18, 2006, after his motion to suppress was denied, defendant pled guilty to possession of a CDS, as charged in count one. Defendant was then tried before a jury, which found him guilty on all of the remaining charges. The trial court thereafter sentenced defendant to an aggregate seven-year term of imprisonment. Defendant appeals, challenging his convictions and the sentences imposed. For the reasons that follow, we affirm but remand the matter to the trial court for entry of a corrected judgment of conviction merging counts two and three with count four.
We briefly summarize the evidence presented at the trial of this matter. James Armstrong (Armstrong) was employed by the Atlantic City Police Department (ACPD) as a detective. Armstrong testified that, on May 26, 2005, at about 8:00 p.m., he was conducting surveillance in the area of Kentucky and Bellevue Avenues in Atlantic City, which he described as a "high narcotics trafficking area[.]"
Armstrong said that he observed an unidentified black male approach defendant and engage him in a brief conversation. The unidentified male handed defendant paper currency. Defendant, in turn, reached into his pocket, took out an item and handed it to the unidentified male, who then departed.
Armstrong was using binoculars at the time. He stated that his view of the interchange between defendant and the unidentified male was unobstructed. Armstrong said that it was dark at the time but the street lights were on and he was able to see their faces and what they were wearing. He stated that defendant "was wearing a distinctive red jacket and red bandanna[.]" The unidentified male was wearing a brown leather coat. There were no other persons on the street at the time.
Armstrong additionally stated that, after the exchange with the unidentified male, defendant walked north on Kentucky Avenue, where he met two other males. Armstrong left the surveillance location, got into his marked police car and went to look for defendant. Armstrong observed defendant with the other males walking northbound on Kentucky Avenue. Armstrong and another officer stopped the three men.
Armstrong searched the right front pocket of defendant's pants. He said that he found "five small green ziplock type baggies containing a white rocky substance." Armstrong searched the left front pocket of defendant's pants and found sixty dollars in cash. In the right front cargo pocket of defendant's pants, Armstrong recovered "fifteen empty small green ziplock type baggies" and "rubber surgical gloves."
Armstrong testified that the baggies "are consistent with packaging narcotics for sale." He further testified that the rubber gloves are used to package narcotics "because the bags are so small that often times if you are doing [the packaging] with your skin, [the drugs] would stick to your fingers."
Armstrong placed defendant under arrest and transported him to police headquarters. He testified that he secured the narcotics. Armstrong also identified a map that depicts the City's schools and a one-thousand-foot radius around each school. He identified another map that depicts certain areas designated as public property and a five-hundred-foot radius around each of those areas. Armstrong pointed out the location where defendant had engaged in the exchange with the unidentified male.
Donna Green (Green), who was also employed by the ACPD as a detective, testified that in June 2005, she served as the department's narcotics custodian. She said that she had responsibility to "oversee all [of] the narcotics evidence that was seized by the department." Green stated that on June 9, 2005, she transported evidence seized from defendant to the State Police laboratory in Hammonton, New Jersey for testing. The results of the tests were admitted into evidence. The tests were positive for cocaine.
Defendant elected not to testify and he did not call any witnesses in his behalf. He was convicted of possession of a CDS with intent to distribute (count two); possession of a CDS with intent to distribute within 1,000 feet of school property (count three); and possession of a CDS ...