July 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ASMAR JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2009
Before Judges Lisa and Alvarez.
Defendant Asmar Jackson appeals his convictions after trial by jury on Camden County Indictment No. 05-01-0316, charging him with second-degree possession of cocaine with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count one); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count three); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count four). He also challenges his sentence on the basis that it was disproportionate to that of his co-defendant, Naeem Cotton. We affirm.
Defendant was sentenced on August 25, 2006, to nine years of imprisonment subject to four years of parole ineligibility. The sentence was imposed solely on count one, intent to distribute within 500 feet, as the trial court merged all other offenses. Appropriate fines and penalties were assessed, and defendant forfeited $983 taken from his person at the time of arrest.
The following facts were developed at trial. The charges arose from undercover police surveillance on August 19, 2004, at approximately 8:10 p.m. Detective John Gramaglia, an eight-year veteran of the Camden City police, together with his partner, engaged in surveillance at the intersection of Eighth Street and Ferry Avenue. They had an unobstructed view of the street.
Just after their arrival, Detective Gramaglia saw two men, whom he subsequently identified as defendant and Cotton, as well as Cotton's pregnant girlfriend, engaging in drug transactions. Gramaglia watched as defendant and Cotton each separately conducted a sale. He noted that defendant placed his proceeds in his right front pants pocket. After taking money from the buyer, each defendant walked over to a maroon chair sitting beneath a tree and lifted it up, exposing a small black box on the ground. Each would remove the drugs from the box, close and cover the box with the chair, and then return to the buyer to complete the transaction. Cotton and defendant's sales overlapped.
The officers called for backup, during which time Gramaglia and his partner remained in their surveillance location. Once defendants were taken into custody, Gramaglia made a positive identification at the scene and retrieved the black box, which contained eight bags of crack cocaine. $983 was found in defendant's pants pocket, including three $50 bills, thirty-three $20 bills, twelve $10 bills, ten $5 bills, and three $1 bills. Over $1300 was taken from Cotton.
None of the bags were tested for fingerprints. Gramaglia and the State's expert in illegal narcotics, Joseph Gurcik, both testified that to do so would be futile given the number of times the bags are handled before they are sold. Gramaglia also testified that despite having recovered thousands of bags of drugs over his many years as a police officer, none was ever tested for fingerprints. The present transactions occurred within 1000 feet of three different schools and 500 feet of two public housing projects.
Defendant did not testify. Cotton, who entered a guilty plea to the school-zone offense and was sentenced on August 19, 2005, to four years subject to fifteen months of parole ineligibility, was defendant's only witness. Cotton claimed that he was acquainted with defendant, and that the two had been engaging in idle conversation about "some girl" when both men were arrested. Cotton said that defendant knew nothing about the drugs, but acknowledged coming forward with this information only a month before defendant's trial. While on the stand, Cotton admitted that his prior criminal history included three convictions for drug distribution and one for handgun possession. Cotton did not dispute his own guilt, but claimed that defendant was innocent.
Defendant raises the following points on appeal:
DEFENDANT'S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE STATE'S APPLICATION FOR AN EXTENDED TERM UNDER N.J.S.A. 2C:43-6f WAS AN ARBITRARY AND CAPRICIOUS ABUSE OF PROSECUTORIAL DISCRETION AND VIOLATED STATE V. LAGARES, 127 N.J. 20 (1992) (PARTIALLY RAISED BELOW).
Defendant's first contention is that the verdict is against the weight of the evidence. Defendant's objection focuses on the following: the transaction was observed at dusk, and no testimony was proffered as to the lighting conditions, none of the drug purchasers were arrested, and police did not obtain fingerprint evidence from the bags.
Rule 2:10-1 bars a defendant from raising the issue of whether a verdict is against the weight of the evidence on appeal unless a motion for a new trial has been previously made. No such motion was made here. Accordingly, defendant is procedurally barred from raising the issue. State v. Brown, 325 N.J. Super. 447, 456 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000).
In any event, Detective Gramaglia testified that he had an unobstructed view of the drug transactions, and, most significantly, that the officers kept defendants in their line of vision until they were arrested. The failure to arrest buyers in no way weakens the State's proofs against defendant. In light of the expert testimony proffered by the State regarding the futility of testing drug bags for fingerprints, the failure to test the bags in this case clearly fits into the norm. In no way do any of these points establish that the jury's verdict was against the weight of the evidence. There is no logical nexus between the asserted defects in the State's proofs and some unspecified unfairness in defendant's conviction.
Defendant also contends that the State's application for an extended-term sentence was an arbitrary and capricious abuse of prosecutorial discretion. The State did not seek imposition of an extended term sentence on count one, the public-zone distribution charge. That was the sole count on which defendant was sentenced, all other counts being merged into that second-degree offense. The State's application therefore had no effect on the sentence ultimately imposed on defendant. No further discussion is warranted. R. 2:11-3(e)(2).
Defendant further contends that his sentence was inappropriately disparate to that of Cotton. We disagree. Because trial counsel did not challenge the sentence on this basis, this claim is considered under the plain error standard.
R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Our review of a disparity argument is limited. State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996). As the State points out, disparity in and of itself does not constitute an abuse of discretion. State v. Roach, 146 N.J. 208, 232-33, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Where there is an adequate factual basis for different treatment, it will be sustained. The question on appeal is whether the disparity is justified. Id. at 233. A reviewing court cannot substitute its judgment for that of the sentencing court, even if it would have reached a different result. State v. Natale, 184 N.J. 458, 489 (2005).
In this situation, the disparity resulted from the fact that Cotton pled guilty to a third-degree offense, while defendant was convicted of a second-degree offense. Furthermore, Cotton negotiated his plea more than a year before defendant's trial. His more favorable sentence does not mean that defendant's sentence was a punishment inflicted because he went to trial. Cotton merely received a benefit by negotiating a guilty plea to a lesser offense. See State v. Baker, 270 N.J. Super. 55, 78 (App. Div.), aff'd, 138 N.J. 89 (1994). Additionally, there are some key factual distinctions, as the State points out, between the two individuals' criminal histories. Defendant was nearly twenty-four at the time of his offense and had previously been imprisoned for a school-zone distribution offense, including a parole ineligibility term. Cotton had just turned nineteen when this offense occurred, had no prior indictables, and had never been to prison. In addition to his prior indictable drug distribution conviction, defendant had five municipal court convictions, whereas Cotton had only three. Because the sentencing judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and no mitigating factors, N.J.S.A. 2C:44-1(b), he sentenced defendant in the high end of the permissible second-degree range to nine years subject to four without parole. The judge appropriately weighed the aggravating and mitigating factors as to the second-degree offense. In sum, the disparate sentences do not shock our conscience or require judicial intervention. State v. Roth, 95 N.J. 334, 364-65 (1984).
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