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State v. Preston

July 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES T. PRESTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-2927.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 15, 2009

Before Judges Carchman and Parrillo.

Tried by a jury, defendant James T. Preston was found guilty of possession of heroin and cocaine, N.J.S.A. 2C:35-10a(1) (counts 1 and 4); possessing these drugs with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (counts 2 and 5); and possessing them with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (counts 3 and 6).*fn1 After merging counts 1 and 2 with count 3, and counts 4 and 5 with count 6, the court imposed on defendant concurrent extended-term sentences of six years, with a three-year period of parole ineligibility. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs, on August 4, 2005, at about 10:00 a.m., Newark Police Detectives Larry Collins and Mark Johns, responding to numerous complaints of drug activity, set up surveillance in the area of Hartford and Norfolk Streets, a known high narcotics location. They positioned themselves in the rear of their undercover blue Dodge van, equipped with tinted windows so no one could see inside, and parked on the east side of Norfolk Street, near the corner of Hartford Street, facing north. It was a sunny day and the officers' view was unobstructed.

From a distance of about 35 feet, the officers observed defendant dressed in a white t-shirt, black shorts and black and tan boots, sitting alone on a wrought iron fence railing at the corner of Hartford and Norfolk Streets. Within a few minutes, a woman approached defendant still seated on the fence. They spoke briefly, defendant reached into his right rear pocket and gave an item to the woman. She, in turn, gave defendant what appeared to be paper currency. The transaction lasted approximately fifteen seconds. Afterwards, the woman walked south on Norfolk Street out of the detectives' view, and defendant returned to sitting on the fence.

A few minutes later, a man, later identified as co-defendant Donnell Bradley, approached defendant while he was still sitting on the fence. The two men spoke briefly and, once again, defendant reached into his right rear pocket, took out an item and handed it to Bradley, who then gave defendant paper currency. This transaction also endured for only ten to fifteen seconds.

Based on their collective experience observing hundreds of narcotics transactions and making numerous undercover "buys" themselves, Collins and Johns decided to arrest Bradley to confirm there had been a drug deal. Accordingly, the detectives followed Bradley in their undercover van, and eventually walked into a liquor store on Norfolk Street that Bradley had just entered. After identifying themselves as police officers and displaying their badges, the detectives detained Bradley.

Detective Johns then searched him and recovered a clear vial with a gold top containing suspected cocaine.

A few minutes later, defendant entered the liquor store and was arrested and searched. Detective Collins recovered fourteen gold top vials containing cocaine from defendant's right rear pocket -- the same pocket the officer saw him reach into twice to make drug transactions. Detective Collins also found six vials with purple tops containing cocaine in defendant's left rear pocket, and in a small front pants pocket, five glassine envelopes stamped "Krispy Crème" in blue ink, containing heroin. Detective Johns also recovered $107 in cash from defendant: three twenty dollar bills; two five dollar bills and thirty-seven one dollar bills.

Defendant offered an entirely different account at trial. While acknowledging he was in the area of Hartford and Norfolk Streets at the time, he claimed to have been visiting his grandmother, who lived on Norfolk. He denied sitting or leaning on the fence and explained that while walking to the liquor store, he spoke to a couple of people, but only exchanged greetings. Once inside the liquor store, he saw a police officer and another person in police custody, whom he did not know. According to defendant, he was then immediately arrested and searched. He denied possessing any drugs and claimed the police found only money in his front left pocket. Defendant also claimed that it is impossible for him to reach into his right rear pocket with his hand because he had been stabbed in November 2004, and as a result, he is "handicapped."*fn2

Evidently crediting the State's version, the jury convicted defendant of six counts of drug-related offenses. This appeal follows, in which defendant raises the following issues:

TESTIMONY BY THE STATE'S FACT WITNESSES VIOLATED MR. PRESTON'S RIGHT TO CONFRONTATION AND PART OF THE STATE'S EXPERT'S TESTIMONY WAS IMPROPER EXPERT OPINION ...


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