On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Following his arrest by police officers, who later testified they had witnessed defendant engage in an illegal hand-to-hand drug transaction in Newark on April 8, 2006, defendant was indicted and charged with: third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession with the intent to distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession with the intent to distribute CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).
Count three was dismissed prior to trial. At the conclusion of a three-day trial, defendant was convicted on the remaining counts. The trial judge granted the State's motion to impose an extended term, pursuant to N.J.S.A. 2C:43-6(f), and sentenced defendant to: a four-year prison term, with a two-year period of parole ineligibility, on count one, and concurrent seven-year prison terms, with forty-two-month periods of parole ineligibility, on counts two and four.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT'S INITIAL CHARGE TO THE JURY AND ITS SUBSEQUENT JURY RECHARGE WERE INADEQUATE, INCOMPLETE, AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
A. The Trial Court's Failure To Rein-struct The Jury On The Elements Of "Possession" And On The Mental States Of "Knowingly" And "Purposely" Constitute Plain Error (Not Raised Below).
B. The Trial Court's Failure To Instruct The Jury Sua Sponte On "Mere Presence" Was Plain Error (Not Raised Below).
II. DETECTIVE HOLLOWAY'S EXPERT OPINION THAT A HAND-TO-HAND DRUG TRANSACTION HAD OCCURRED CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
III. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S IMPROPER HYPOTHETICAL QUESTION (NOT RAISED BELOW).
IV. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
V. THE AGGREGATE CUSTODIAL SENTENCE OF 7 YEARS WITH 3-1/2 YEARS (42 MONTHS) OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND ...