On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Sapp-Peterson and Espinosa.
Defendant Lamar Franklin appeals his conviction for narcotics-related offenses arising out of the execution of a search warrant and the sentence subsequently imposed. We affirm the conviction and remand for re-sentencing.
The evidence presented to the jury at trial disclosed that the search warrant was issued for a Johnson Avenue apartment (apartment) in Newark. When officers arrived at that location on February 2, 2007, they first knocked on the door. After hearing a female voice say, "[d]on't open that door," the officers forcibly entered and observed defendant exiting from a front bedroom and walking down a hallway. Defendant's sister and co-defendant, Myisha Sumter (Myisha),*fn1,*fn2 was seated at a table in a dining area along with her daughter. Sergeant Anthony Costa testified that when defendant attempted to leave the apartment, he "detained him immediately." Sergeant Costa further stated that when he "grabbed" him, defendant "tensed up." Fearing that defendant may be armed, he patted defendant for weapons. He found no weapons but felt a bulge in defendant's pocket that he "knew to be vials of cocaine" and recovered forty-six red vials of suspected cocaine from the jacket pocket. A search of the apartment uncovered eighty-two additional vials of cocaine and thirty glassine envelopes of heroin from inside a sneaker located in the bedroom from which police first saw defendant exiting. Police also recovered weapons and live rounds of ammunition from the apartment. During the course of the search, an unidentified male knocked on the door and police heard him say that he wanted to buy "two dimes," meaning two ten-dollar vials of cocaine. Police opened the door and arrested the individual.
After defendant, co-defendant Myisha, and the prospective buyer were arrested, two more persons came to the apartment, Stepffone Sumter*fn3 (Stepffone) and his relative, a juvenile. Stepffone told police he was interested in his family member. Police made no further inquiries of him at that point and they did not frisk him or the juvenile for weapons because they did not perceive them to be a threat to their safety. Nor did the police, at that point, attempt to determine in whose name the apartment was being leased.
Stepffone testified on behalf of the defense. He indicated that the apartment had originally been leased to his mother, with whom he had lived. He explained that she had since died and he had been living alone in the apartment as of January 2005. He denied that Myisha was also living there, despite being cross-examined about prior eviction notices that indicated otherwise. He indicated, however, that his niece, Kashima Sumter, who was romantically involved with defendant, had a key to his apartment. He denied that the loaded gun or any of the drugs confiscated from the apartment had been left there by him.
Myisha testified that she lived elsewhere in Newark but had lived at the apartment for thirty days in 2004. She denied telling police at the time of her arrest that she lived in the apartment. She indicated that she was at the apartment on February 2, to visit with her daughter over whom she had lost custody. When she arrived at the apartment, her other daughter was present, and defendant and Kashima walked in. She further testified that after being at the apartment for about one-half hour, the police entered and that she was seated at the kitchen table smoking marijuana, which police confiscated. She denied seeing police recover forty-six vials of cocaine from defendant.
Defendant and Myisha were indicted on twelve counts of narcotics and weapons offenses stemming from the events of February 2. The jury convicted defendant of the charges arising from the forty-six vials of cocaine confiscated from his person, while Myisha was convicted of all charges resulting from the execution of the search warrant that uncovered additional drugs, weapons, and ammunition.
On appeal, defendant raises the following points for our consideration:
THE [TRIAL COURT] ALLOWED IMPERMISS[I]BLE EXPERT TESTIMONY FROM A LAY WITNESS WHO WAS NEVER QUALIFIED AS AN EXPERT, AND FAILED TO GIVE A JURY INSTRUCTION REGARDING THE EXPERT TESTIMONY. [(Not Raised Below).]
THE TRIAL COURT ABUSED ITS DISCRETION BY PREVENTING MR. FRANKLIN FROM PRESENTING A DEFENSE, VIOLATING ...