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State v. McLean

February 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN L. MCLEAN A/K/A KEVIN MCLEAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-12-1657.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Baxter and Alvarez.

Defendant Kelvin McLean was found guilty by a jury of possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin, N.J.S.A. 2C:35-10a(1) (count four); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); and possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count six). He was acquitted of count two, possession of cocaine with the intent to distribute, and count three, possession of cocaine with the intent to distribute within 1000 feet of school property. On August 8, 2007, following merger of counts four and five into count six, defendant was sentenced on count six to a ten-year mandatory extended term with a five-year period of parole ineligibility, pursuant to N.J.S.A. 2C:43-6f. A concurrent five-year term was imposed on count one. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.

The facts developed at trial are as follows. At approximately 10:55 a.m. on September 7, 2005, Detective Ronald Altmann, a seven-year member of the Paterson Police Department's Narcotics Division, was on surveillance assignment along with Detective Sergeant Troy Bailey, in the area of Carroll Street near Governor and Harrison Streets. That morning, while seated in the rear of the surveillance vehicle, Altmann saw two hand-to-hand drug transactions conducted from the front passenger seat of a white Mercury Sable. The transactions occurred in a parking area along the side of a building at 43-45 Carroll Street.

After the first suspected hand-to-hand transaction, Altmann changed the surveillance location because the "drug stash" was out of the officers' line of vision. Altmann testified that during the first transaction he saw an unknown individual approach defendant and engage him in a brief conversation. Defendant then walked into the parking area out of the view of the officers. He returned "a minute later and hand[ed] a small item or items to the suspected buyer, who in turn gave defendant a sum of paper money for the suspected CDS." The buyer walked out of view and the surveillance officers radioed a description of the purchaser to the backup teams, who were unable to locate him.

About ten minutes later, at 11:05 a.m., the officers saw a second individual walk through the Inca Village Housing Complex onto Carroll Street and approach defendant. The two men engaged in a brief conversation. Defendant then began to walk in the same direction as he had previously, onto the Harrison Street side of the parking area. The officers changed their location and were able to observe defendant "exiting the front passenger side of a white Mercury Sable that was parked against the building of 43-45 Carroll Street facing out towards Harrison Street." Defendant then handed this second person a small item or items in exchange for "a sum of paper money for the suspected CDS." The backup team was unable to locate the second buyer.

After the second transaction, Altmann directed the backup team to "move in and investigate further." Immediately upon defendant stepping out of the car at Detective Sergeant Mason Maher's request, Detective Mariano Formentin saw a small bundle of heroin located on the passenger floor. Formentin seized the heroin and began to search for contraband underneath the seats and elsewhere in the vehicle. Formentin found a plastic bag containing a loose quantity of crack cocaine in the glove box. Also found in the vehicle was $384; $20 was found on defendant's person. The money consisted of eight $20 bills, four $10 bills, twenty-two $5 bills and ninety-four $1 bills.

During his trial testimony, Maher on one occasion referred to defense counsel as defendant's "public defender." The attorney, who was not a public defender, asked the trial judge not to give a curative instruction as he did not wish to highlight the comment.

When defendant testified, he explained that he had been staying in an apartment at 43-45 Carroll Street with an aunt, who was ill and in the hospital, since his release from prison. He acknowledged three prior indictable convictions. Although he admitted ownership of the cocaine and heroin found at the time of his arrest, he claimed the drugs were solely for his use as he had abused drugs since 1994 or 1995. He categorically denied selling drugs. He said that the morning of September 7, 2005, he was spending time in and out of his car in the parking area because his aunt forbid him from smoking cigarettes indoors. He took out the garbage, listened to CDs in his car, and urinated against the side of the building. Additionally, he played dice games with other people on the street. His aunt had left him with $120, his sole source of funds for food, and he used "dollars" of this money to gamble.

On appeal, defendant raises the following contentions:

POINT ONE:

THE STATE'S FACT WITNESS IMPERMISS[I]BLY INTRUDED ON THE JURY'S FACT FINDING ROLE BY EXPRESSING AN OPINION ...


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