On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-02-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Rahean Brown was convicted of third-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2 (Count One); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Two); third-degree possession of heroin, N.J.S.A. 2C:35- 10a(1) (Count Four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Five); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and 2C:35-7 (Count Six); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Seven); and third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (Count Eight).*fn1 After appropriate mergers, defendant was sentenced on Counts Six and Eight to concurrent five-year terms with three-year parole bars, and on Count Two, to a concurrent eighteen-month term of imprisonment. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on the morning of October 1, 2001, while on narcotics surveillance in his unmarked vehicle in the area of Carteret and Ocean Avenues in Jersey City, Officer Christopher Robateau observed defendant and a juvenile, J.W., standing on the southeast corner of that intersection. About fifteen minutes later, Kenneth Brown approached and engaged in a brief conversation, after which Brown handed defendant paper currency. After counting the bills, defendant nodded to J.W., who then removed an object from his jacket pocket and handed it to Brown. As Brown left the area, Robateau radioed other officers stationed on the perimeter of the surveillance area with a description of Brown, while he continued monitoring defendant. Brown was thereafter apprehended, found to be in possession of a bag of heroin, and arrested.
While Brown was being searched, Robateau saw an unidentified female approach defendant and converse with him briefly. She handed him paper currency, and defendant then pointed to J.W. The woman, as directed, approached J.W., and he handed her a similar object from his jacket pocket. Robateau again radioed his perimeter units to arrest the woman, but the officers were unable to find her.
Thereafter, Robateau ordered the arrest of defendant and J.W. As officers approached the two suspects in an unmarked vehicle, they fled the scene in opposite directions. During the chase, Officer Alexander Bermudez saw J.W. discard several objects from his jacket pocket, which were later retrieved and, after testing, determined to be twenty packets of heroin. Officer Bermudez eventually apprehended J.W.
Meanwhile, Officer Vincent Romano pursued defendant in his police vehicle. As defendant ran on the sidewalk, Officer Romano drove parallel with him, displayed his badge, and yelled, "Stop. Police," multiple times through his open window. Defendant, however, continued to flee. Romano ultimately overtook defendant by pulling into a supermarket driveway and using his vehicle to cut defendant off. When arrested, defendant was found to have $290 in cash on his person.
On appeal, defendant raises the following issues:
I. THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED SINCE HE WAS NOT INFORMED OF THE CONSEQUENCES OF A STIPULATION. (NOT RAISED BELOW).
A. AGREEMENT TO A STIPULATION IS A PERSONAL RIGHT OF THE DEFENDANT WHICH MUST BE EXAMINED BY A TRIAL JUDGE ON THE RECORD TO ENSURE THAT THE DEFENDANT IS AWARE OF THE CONSEQUENCES OF SUCH A DECISION.
II. THE JURY INSTRUCTIONS, IN SUBSTANCE AND IN THE ORDER IN WHICH THEY WERE PRESENTED BY THE TRIAL COURT, WERE AMBIGUOUS AND MISLEADING. (NOT RAISED BELOW).
III. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING MR. BROWN TO AN EXCESSIVE AND UNJUSTIFIED PRISON TERM WITHOUT SUBSTANTIVE ...