On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-0246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Carchman, Parrillo and Ashrafi.
Tried by a jury, defendant Jacquim Lovely was found guilty of three counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); three counts of third-degree distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). After merging the distribution counts with the school zone counts, the judge sentenced defendant to an aggregate extended term of ten years with five years of parole ineligibility, N.J.S.A. 2C:43-6(f), and a concurrent eighteen-month term on the resisting arrest conviction. On appeal, defendant challenges the sufficiency of the evidence to support his convictions and the quantum of his sentence. We affirm.
According to the State's proofs, on December 4, 2004, at around 6:15 p.m., Sergeant Nick Flora was conducting surveillance in the area of Ocean and Claremont Avenues in Jersey City. Perimeter units were standing by to stop suspected drug offenders at Flora's direction. From the middle row of a minivan parked forty or fifty feet away, Flora observed defendant walking back and forth in front of a bodega. An individual identified as Council Reid approached defendant, conversed with him, and then handed him money. In exchange, defendant handed over an item to Reid. After receiving a description from Flora, Officer Douglas Paretti stopped Reid, who was walking northbound on Ocean Avenue and then east to Carteret Avenue. Reid had two bags of heroin, one marked with the logo "X-Box" and another, "Cradle to the Grave."
Approximately ten minutes after the first transaction, Flora observed defendant and another individual identified as William Taylor conversing. Defendant pulled out several items from his jacket pocket, counted them, and then handed the items to Taylor. In return, Taylor gave money to defendant. Once again, Flora relayed his observations to the perimeter units, including his view of Taylor entering a parked purple minivan and traveling north on Ocean Avenue toward Carteret Avenue. After receiving the information from Flora, Officer Paretti stopped Taylor and found four bags of heroin on his person, three with an "X-Box" logo and one labeled "Too Fast, Too Furious."
Minutes later, Flora observed defendant enter a liquor store and meet up with a third individual, Jerry Chandler. During the ensuing conversation, Chandler gave defendant money and in exchange received a small object from defendant, which he put in his rear pocket. After receiving a description from Flora about the suspect's clothing, physical appearance, and direction of travel, Officer Paretti stopped Chandler, who was also walking toward Carteret Avenue past Paretti's position. After being advised of the surveillance, Chandler handed Paretti one or two bags of heroin from his back pocket.
Following the third transaction, defendant walked his bike southbound on Ocean Avenue while looking back, and then began riding his bike in the same direction. At the same time, Flora relayed defendant's description and directed the perimeter units to stop him. While setting up another surveillance operation in the area, Officer Michael Burgess and Detective Trish Cassidy spotted defendant and pulled over their unmarked car about twenty feet from the corner of Myrtle Street and Ocean Avenue. When Burgess exited and exposed the police shield on his neck, defendant stated, "Oh shit," dropped the bike, and ran northward on Ocean Avenue. Burgess chased defendant for about half a block and then tackled him to effectuate the arrest. A search of defendant incident to his arrest revealed no drugs but sixty dollars, in denominations of one twenty dollar bill, three ten dollar bills and two five dollar bills.
At the close of the State's case, defendant moved for a judgment of acquittal on all charges, pursuant to Rule 3:18-1. In denying the motion, the court reasoned:
This case is a case of credibility of the officer, Officer Flora primarily to what he did see or didn't see, how he could have seen it, not seen it, the distances but quite frankly even though his - there's no corroboration of what he had seen, that's not unusual. In fact we're dealing here with drug transactions. They're done secretly, furtively, quickly even though sometimes and most times even on the open street it's still not something that occurs you know in flagrant situations as far as you know daylight.
So there are always issues here as to what could have been seen and not seen but those are issues that a jury has to decide. As far as I'm concerned in terms of my findings, credible in terms of surviving any motions and that the state has met its burden. Of course giving all favorable inferences they could find the defendant guilty beyond a reasonable doubt of one, two or all three transactions.
Defendant argues that the trial court erred in denying his motion for judgment of acquittal on the drug distribution charges because he did not have a CDS in his possession when he was apprehended; Sergeant Flora could not identify the small items as CDS; the police lost sight of the suspected buyers before they were ...