October 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JACQUIM LOVELY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 apprehended; and the CDS retrieved from the suspected buyers had varied labels. We disagree.
"At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal... if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard the trial court must apply is, "'whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find'" guilt of the charge beyond a reasonable doubt. State v. Denofa, 187 N.J. 24, 44 (2006) (quoting State v. Reyes, 50 N.J. 454, 458, 459 (1967)).
On review, we apply the same standard in determining whether the trial judge should have granted the motion for judgment of acquittal. State v. Moffa, 42 N.J. 258, 263 (1964) (citing State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)).
Governed by these standards, we conclude the State's proofs were sufficient to warrant defendant's convictions for drug distribution within a school zone and resisting arrest. As to the former, the State produced eyewitness testimony that defendant exchanged several small items for cash and that all three individuals seen receiving the objects and fitting the description radioed in were found with heroin in their possession within minutes, and within the immediate vicinity, of the transaction with defendant. From this evidence, it may be reasonably inferred that defendant exchanged heroin for money, N.J.S.A. 2C:35-5(a)(1), (b)(1), and N.J.S.A. 2C:35-7. The fact that Sergeant Flora could not identify the small items as packages of heroin, or may have momentarily lost sight of the purchasers before their apprehension, does not detract from the reasonableness of the inference arising from the totality of the surrounding circumstances. Nor does the fact that defendant did not have drugs in his possession at the time he was apprehended, or that the labels on the heroin varied somewhat, preclude a reasonable jury from finding guilt beyond a reasonable doubt. As the trial judge noted in denying defendant's motion for acquittal, "[t]hese questions about the money and all of these other situations are purely fact-finding decisions that have to be made to [sic] the jury."
It is well-settled that evidence may be direct or circumstantial, "and giving the State the benefit of all... the favorable inferences which reasonably could be drawn" from its proofs, Reyes, supra, 50 N.J. at 459, we are satisfied that a reasonable jury could find guilt on the drug distribution charges beyond a reasonable doubt.
We are equally satisfied there is sufficient evidence to support the resisting arrest conviction. A person is guilty of a fourth-degree crime if "he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(2). The use of force against the arresting officer is not required as a basis for the charge. State v. Williams, 229 N.J. Super. 179, 181-83 (App. Div. 1988). Here, the evidence demonstrates that Officer Burgess displayed his police shield to defendant so that defendant knew he was being arrested, but nevertheless fled. The police chase only ended when Burgess was able to tackle defendant. These facts suffice to establish the fourth-degree offense of resisting arrest. State v. Henry, 323 N.J. Super. 157, 162 (App. Div. 1999); State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).
Defendant next contends his sentence is excessive. We disagree.
The court granted the State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), in light of defendant's previous conviction in 2000 for distributing a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7.
A person convicted of... distributing [or] dispensing [a CDS]... on or near school property... who has been previously convicted of... distributing [or] dispensing... a [CDS]... shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. [N.J.S.A. 2C:43-6(f).]
Distributing a CDS within 1,000 feet of school property is a crime of the third degree. N.J.S.A. 2C:35-7.
As such, the mandatory extended term is five to ten years. N.J.S.A. 2C:43-7(a)(4), (c). The term of imprisonment shall also include a minimum term "fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater...." N.J.S.A. 2C:43-6(f).
In sentencing defendant to an extended term of ten years with a five-year parole bar, the court found two aggravating factors - "the strong need to deter the defendant and the risk of reinvolvement[,]" N.J.S.A. 2C:44-1(a)(3), (9), but no mitigating factors. On this score, in addition to his previous school zone drug distribution conviction, defendant was convicted in 2000 for possession of firearms for an unlawful purpose, N.J.S.A. 2C:39-4(a). He previously served a three-year State prison sentence which obviously did not deter him from committing the present crime. Thus, the court's findings of aggravating factors were "'grounded in competent, reasonably credible evidence.'" State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). When weighed against the absence of any mitigating factors, defendant's maximum term sentence does not "shock the judicial conscience." Roth, supra, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). We, therefore, find no warrant for interference.
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