On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
Defendant Dominick Anderson was convicted by a jury of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), for which he was sentenced to four years in prison with an eighteen-month parole bar. He was acquitted of CDS possession with intent to distribute and possession with intent to distribute CDS in a school zone. He appeals from the conviction and the sentence. We affirm.
These are the most pertinent facts, based on the trial record. According to State Trooper Gregory Austin, on March 23, 2007, he and Trooper Dorothy Quinn were conducting a surveillance operation in Camden. They observed what appeared to be a hand to hand drug sale between defendant and a customer.
They arrested defendant and another individual whom they believed was involved in selling drugs. When Trooper Austin searched defendant, he found a small bag of heroin in defendant's jacket pocket. He also found over $800 in defendant's pockets. Trooper Quinn corroborated Austin's testimony. Investigator Randall McNair, an expert witness in drug distribution, testified about typical practices in street level drug sales. He also explained that it was not standard police practice to test small bags of drugs for fingerprints, because the bags were typically handled by several people and were unlikely to yield useful fingerprint results.
Defendant's girlfriend, Juquay Howell, testified that she was with defendant all day on March 23, 2007, and she was present when he was arrested. According to Howell, defendant was engaged in innocent activities and was not selling drugs. She contended that the police did not find any drugs when they searched defendant. She also testified that defendant had a large amount of cash because she had given him $500, with which they were going to pay her electric bill.
On this appeal, defendant presents the following points for our consideration:
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 ON THE LAW OF ALIBI. (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 BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION.
POINT III: 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 TRIAL COURT PERMITTED THE STATE'S EXPERT WITNESS TO ALSO BE A ...