On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-09-1243 and 05-10-1440.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Skillman and Graves.
Defendant Isaac Ricks appeals from a judgment of conviction and sentence entered after a trial by jury and from a sentence imposed following his entry of a guilty plea to a charge in a separate indictment. We affirm.
A jury convicted defendant of fourth-degree possession of marijuana with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count one of Hudson County Indictment No. 05-09-1243), and third-degree possession of marijuana with intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-7 (count two of Indictment No. 05-09-1243). On June 2, 2006, the court granted the State's motion to impose a mandatory extended term for a repeat drug offender under N.J.S.A. 2C:43-6(f); merged count one into count two; and sentenced defendant to a ten-year extended prison term with five years of parole ineligibility.
On the same day, defendant was sentenced on a separate indictment. Prior to sentencing, defendant pled guilty to count two of Hudson County Indictment No. 05-10-1440, which charged him with third-degree possession of marijuana with intent to distribute within a school zone, in violation of N.J.S.A. 2C:35-7. Pursuant to a negotiated plea agreement, defendant acknowledged that he was subject to an extended ten-year term with five years of parole ineligibility. In return for defendant's guilty plea, the State agreed to dismiss count one of the indictment, and it agreed to recommend that defendant's sentence would be concurrent with the sentence that he received as a result of his jury trial. Pursuant to the plea agreement, the court imposed a concurrent ten-year term with five years of parole ineligibility on the second indictment.
During defendant's trial, Jersey City Police Detective Amy Hulings testified that on June 8, 2005, at approximately 11:00 a.m., she was working undercover in the vicinity of Bramhall Avenue and Bergen Avenue, when she observed two men, later identified as defendant and co-defendant Ronald Moore, talking to each other in front of 625 Bramhall Avenue. About twenty minutes later, a black Honda parked nearby, and the driver approached Moore. After a brief conversation, the driver of the Honda took cash out of his pocket and handed it to Moore. Moore then walked to the driveway of 624 Bramhall to pick up a small item. When he returned, Moore gave the small item to the driver of the Honda, who got back in the car and drove away.
Shortly thereafter, an unidentified female approached defendant and, after a brief conversation, the female gave defendant cash. Defendant then took a small item out of a green pouch that he had in his front pocket and handed the item to the female.
Detective Hulings also testified as follows:
Right after I saw that, another male who we later identified as Chris Legrand walked up to the vehicle that I was in, which had tinted windows. He started pressing his face to the windows, like walked around the vehicle, looked in the side windows, looked in the front, and then looked over at defendant and Mr. Moore and yelled out "Five-oh," and was pointing to the vehicle I was in.
At that point Detective Haulings believed that she had just witnessed two drug transactions, but she also believed that the surveillance had been compromised, and she directed her back-up unit to the scene. When defendant was arrested and searched, Officer Ferrante, a member of the back-up team, recovered a green pouch from defendant's front pocket, which contained fourteen small bags of marijuana. In addition, Ferrante recovered forty-six dollars in currency from defendant.
Detective Christopher Robateau testified as an expert witness for the State. Robateau testified that a "dime bag" of marijuana usually sells for "between seven and eight dollars per bag." After being asked a hypothetical question with facts similar to the present case, Robateau testified that in his opinion, the fourteen bags of marijuana recovered from defendant were for distribution rather than for personal use. Robateau based his opinion on "the totality of the circumstances," including the observations by Detective Hulings; the fact that the hand-to-hand transaction took place in an area known for narcotics activity; the quantity of the individually packaged drugs; the denominations of the currency recovered from defendant (two tens, two fives, and sixteen singles), which were indicative of drug sale proceeds; and the fact that no drug paraphernalia was recovered from defendant. In forming his opinion, Detective Robateau did not rely on the fact that Christopher Legrand had pointed to the undercover police vehicle and shouted "five-oh."
Shortly after 11:00 a.m. on the second day of trial, the State advised the court that it was going to rest its case "as soon as the jury comes out." Defense counsel then advised the court that defendant "found Christopher Legrand, and Mr. Legrand can be here tomorrow morning." When the court asked what Legrand would testify to, counsel responded:
Your Honor, Mr. Legrand is going to testify that when he saw the van, it looked like the van that had done the shooting of his sister a week before and . . . it was in the same place, . . . and that's why he went to the van to look at it, to investigate to see if it was the same one.
And that's why he investigated and said it was cops, but not to advise people it was cops. It's like it's not the ...