April 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOMINICK ANDERSON A/K/A JAMES TONY, TONY READ, DOMINIQUE ANDERSON AND ANDERSON P. DOMINICK, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 30, 2009
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 FACT WITNESS WITHOUT ADEQUATE GUIDANCE TO THE JURY. (Not Raised Below)
POINT IV: 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 EVIDENCE OF GUILT BY ASSOCIATION. (Not Raised Below)
POINT V: 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 STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXLUDED. (Not Raised Below)
POINT VI: THE SENTENCE IS EXCESSIVE. (Not Raised Below)
A. The Trial Court Improperly Balanced The Aggravating And Mitigating Factors.
B. The Court Made Findings Of Fact To Enhance The Sentence.
Having reviewed the record, we conclude that these arguments, most of which are being raised for the first time on appeal, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
We find no merit in plaintiff's contention that the court should have given the jury an alibi charge. Simply put, there was no alibi defense. Defendant's girlfriend did not testify that defendant was not present at the scene of the crime. See State v. Mucci, 25 N.J. 423, 431 (1957). She testified that he was at the scene, where the police arrested him. However, she was a witness to defendant's arrest and testified that events did not occur the way the police said they did. No alibi instruction was required.
Defendant's Point II contends that Detective McNair should not have been permitted to testify concerning what defendant characterizes as "fingerprint evidence," because McNair was not a fingerprint expert. To the contrary, McNair did not testify as a fingerprint expert, but merely testified that it was not customary for the police to test bags of narcotics for fingerprints. This testimony was unobjectionable, and was within his area of expertise.
Defendant's points III, IV and V contend that the State improperly presented expert and other testimony on the issue of whether defendant was engaged in selling drugs. Defense counsel did not object to this testimony and even if any of the testimony was admitted in error, it had no clear capacity to produce an unjust result, R. 2:10-2, because defendant was acquitted of the distribution charges.
Finally, in light of defendant's extensive criminal record, we find no error in the sentence, which is not shocking to the conscience or otherwise excessive. See State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).
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