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State v. Jackson

July 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ASMAR JACKSON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0316.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I.

DEFENDANT'S CONVICTION WAS AGAINST THE WEIGHT OF ...


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