On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0078.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Grall.
Following a jury trial, defendant Assalaam Matthews was acquitted of third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three), but he was convicted of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two). At sentencing on August 10, 2006, count one was merged into count two. The court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f), and defendant was sentenced to an eight-year prison term with four years of parole ineligibility.
Defendant presents the following arguments on appeal:
DEFENDANT'S MOTION TO SEVER HIS TRIAL FROM CO-DEFENDANT WAS DENIED IN ERROR SINCE EACH DEFENDANTS THEORY WAS IN DIRECT OPPOSITION OF THE OTHERS RESULTING IN PREJUDICE TO DEFENDANT.
THE JUDGES RULING TO ALLOW CROSS EXAMINATION OF CO-DEFENDANT TO REACH BEYOND THE SCOPE OF HER DIRECT EXAMINATION COLLATERALLY PREJUDICED THE DEFENDANT REQUIRING REMAND FOR A NEW TRIAL.
THE SENTENCING JUDGE WENT BEYOND HIS SENTENCING DISCRETION WHEN HE USED FACTORS IN OPPOSITION TO HIS OWN FINDINGS AND FACTORS NOT FOUND BY A JURY TO ENHANCE DEFENDANT'S MANDATORY EXTENDED TERM.
Based on our review of the record and briefs, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
On September 2, 2005, at approximately 2:30 p.m., Officer Lawrence Smith and other Elizabeth Police Department officers executed a search warrant at 415 Cherry Street, Apartment 5K, Elizabeth, New Jersey. The residence was located in a high-drug trafficking area and within 1000 feet of Alexander Hamilton Middle School.
When Officer Smith arrived, he encountered defendant and co-defendant Lydia Kolas (Kolas) outside 415 Cherry Street. He asked defendant and Kolas their names, which they gave, and where they lived. Both defendants indicated they lived in Apartment 5K.
Officer Smith obtained keys to the building and apartment from defendant and used one key to enter the building. He knocked on the door of Apartment 5K, but no one answered. Officer Smith noticed that the door was unlocked and proceeded inside the apartment. Smith later verified that the key he received from defendant unlocked the door to Apartment 5K.
Upon entering the apartment, Smith found "60 vials of cocaine, a paper bag full of empty vials, [and] a paper bag with plastic vial tops." The cocaine and empty vials were found inside a small shoebox located on top of a dresser in the rear bedroom. Inside the dresser drawer, the police found a cable bill dated August 18, 2005, addressed to defendant at the apartment, and one piece of mail addressed to Kolas. The police also found an AmeriChoice card in Kolas's name inside the same drawer, and Officer Smith noticed men's and women's clothing on the bedroom floor and inside the bedroom closet.
As the police began the search, defendant and Kolas entered the apartment. After the police discovered the cocaine, Officer Smith advised defendant and Kolas of their Miranda*fn1 rights. Officer Smith testified that both individuals acknowledged that they understood their rights.
Defendant verbally waived his Miranda rights and agreed to speak with Officer Smith. Officer Smith asked defendant if the cocaine belonged to him. Defendant responded: "I guess I'll take it. They got nothing to do with it." Smith repeated the question and defendant responded: "I'll take it. That's what you want. Right?" After Smith said that all he "really wanted was the truth," defendant said the cocaine was his. Smith asked defendant "how much cocaine was there," and defendant responded:
"I'll take it. What more do you want." Once again, Officer Smith stated he "wanted the truth." At that point, Kolas interrupted and said "it's mine."
Officer Smith asked Kolas "how much cocaine was there." Kolas responded: "about 60 bottles." Smith asked Kolas if she made the admission "to protect her boyfriend," and Kolas responded: "it's mine and that's all you need to know." Smith concluded defendant and Kolas shared the bedroom where the cocaine was discovered. Defendant and Kolas were charged, arrested, and transported to police ...