On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-11-1720.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Espinosa.
Defendant was indicted and convicted on charges of possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); distribution of heroin in a quantity of less than one-half ounce, N.J.S.A. 2C:35-5(a)(1) (count two); distribution of heroin within 1000 feet of a school property, N.J.S.A. 2C:35-7 (count three); resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count five). He appeals from his convictions and sentence. We affirm.
On the morning of October 13, 2006, Lieutenant Paul Schuster of the New Brunswick Police Department set up surveillance in an area known for street transactions involving controlled dangerous substances. A group of approximately six men were lingering by a vacant lot and were approached by two men. Schuster knew one of the men as Harold Robinson. Robinson and the second man, co-defendant William Warsham, stopped at the curb. Warsham walked to the group, spoke with one of the men in the group and then returned to talk to Robinson. After approximately five minutes, defendant arrived on a bicycle and approached the group of men. Schuster had known defendant for approximately thirty years from the neighborhood. Defendant engaged in a conversation with a short, stocky woman standing there. Although defendant's back was to Schuster, he was able to observe arm movements by defendant which appeared to him as though defendant and the woman were exchanging something.
Eventually, Warsham approached defendant and engaged in conversation with him. Schuster saw what appeared to be a bundle of heroin packets in defendant's hands and then saw him take some of the packets from the bundle and give them to Warsham, who proceeded to hand defendant cash. After this exchange, Warsham and Robinson walked away. This transaction occurred within 1000 feet of an elementary school.
Schuster radioed back-up units and directed them to arrest Warsham and Robinson.*fn1 Warsham threw something from his right hand to the ground as the officers approached him. The officers recovered four packets of heroin, having a weight of.02 grams, that had been discarded by Warsham.
As plainclothes officers pulled up to defendant to arrest him, they announced, "Police." Defendant fled on foot but was tackled by Officer John Yurkovic. As they fell to the ground, Yurkevic observed defendant putting small packets into his mouth. He ordered defendant to stop resisting and, after a brief struggle, was able to handcuff defendant. Yurkovic commanded defendant to open his mouth but did not see any packets in his mouth. A search of defendant's person resulted in the recovery of $60 in cash but no drugs. Defendant declined the officers' offer to take him to the hospital, denying that he had swallowed anything.
Defendant did not testify at trial. Co-defendant Warsham testified that he did not engage in a drug transaction.
The jury found defendant guilty on all counts. The trial court granted the State's motion to have defendant sentenced to a mandatory extended term on counts two (distribution of heroin) and three (distribution of heroin within 1000 feet of school property) pursuant to N.J.S.A. 2C:43-6(f). Counts two and three were merged and defendant was sentenced to terms of imprisonment as follows: four years on count one; seven years with minimum parole ineligibility of fourty-two months on count three; six months on count four and eighteen months on count five. All sentences were ordered to run concurrent to the sentence imposed on count three.
On appeal, defendant raises the following issues:
THE SENTENCES PURSUANT TO DEFENDANT'S CONVICTIONS FOR POSSESSION OF CDS, POSSESSION OF CDS WITH INTENT TO DISTRIBUTE WITHIN 1000 FEET OF A SCHOOL PROPERTY WERE MANIFESTLY EXCESSIVE ...