On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 05-11-1197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Carchman and Parrillo.
Tried by a jury, defendant, Blair Manning, was found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count I); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count II); third-degree possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (Count III); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count IV). After appropriate mergers, defendant was sentenced to a mandatory minimum extended term sentence on the school zone offense, N.J.S.A. 2C:35-7, of seven years with a three-and-one-half year period of parole ineligibility, to run concurrently with an eighteen-month term on the resisting arrest offense.*fn1
Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on July 8, 2005, at approximately 5:25 p.m., Detective William Mulryne of the Trenton Police Department, assigned to the Vice Enforcement Unit, was conducting a narcotics surveillance at the corner of Walnut Avenue and Chambers Street, within 1,000 feet of Trenton Central High School. Approximately twenty to thirty people were gathered at the intersection. The area under surveillance was known for narcotics activity.
At that time, Mulryne observed an individual approach defendant, who was on a bicycle, at the intersection. After moving to the side of a corner liquor store and speaking briefly with the other man, defendant "reached down his right leg area, reached up under his [sweatpants], retrieved some objects from his sweatpants, handed the [. . .] buyer some objects and then received paper currency from him." Detective Mulryne was approximately sixty to seventy feet from defendant, and his view was unobstructed.
A short time later, defendant was approached by a group of four individuals. Again, Mulryne observed that after a brief conversation, defendant "reached down to his ankle, . . . retrieved objects from the same right ankle from underneath his [sweatpants], and . . . handed the objects to each of the individuals[.]" The buyers then handed defendant paper currency. Mulryne believed, based on his experience and training, that he had witnessed defendant engage in two narcotics transactions.
Mulryne then radioed assisting units, relaying a description of defendant riding a bicycle as well as the detective's observations of the suspected drug transactions. Although unable to locate any of the buyers, members of the arrest team observed defendant riding his bicycle on Chambers Street, exited their police vehicle, identified themselves, and told defendant to stop as he was under arrest. Instead of complying, defendant pedaled away from the officers who pursued him on foot, ordering him to stop. Eventually, about three-quarters down the street, defendant lost control of the bicycle as he reached down toward his ankle. At that point, he was placed under arrest and a search of his person revealed 1.24 grams of crack cocaine in his jeans, which were worn underneath his sweatpants. Defendant was also found in possession of $66.
On appeal, defendant raises the following issues:
I. THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE JURY THAT "MERE PRESENCE" ALONE COULD NOT SUSTAIN A CONVICTION. [NOT RAISED BELOW].
II. THE DEFENDANT'S SENTENCE IS EXCESSIVE. We find no merit in these ...