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State v. Moore

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSHUA LEJUNE MOORE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1095.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2010

Before Judges Carchman and Lihotz.

Defendant Joshua Lejune Moore was convicted following a jury trial for third-degree distribution of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one), and third-degree distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two). After merger, the court sentenced defendant to a mandatory extended term of incarceration, pursuant to N.J.S.A. 2C:43-6(f), of eight years with a four-year period of parole ineligibility. Mandatory penalties and assessments were also imposed.

On appeal, defendant argues:

POINT I.

THE STATE FAILED TO PROVE THAT THE DEFENDANT COMMITTED THE OFFENSES OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE AND DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE ON OR WITHIN 1000 FEET OF SCHOOL PROPERTY BEYOND A REASONABLE DOUBT, THUS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II.

DEFENDANT'S SENTENCE WAS EXCESSIVE.

We affirm.

We review the trial evidence supporting the jury's verdict. On April 16, 2003, Detectives Alvaro Goncalves and Ken Mikolajczyk were conducting an undercover street narcotics sales investigation on East Elizabeth Avenue in Linden. Goncalves and Mikolajczyk sat in an unmarked police vehicle parked approximately 100 to 150 feet across the street from a specific residence in the 200 block. Their view of the residence was unobstructed. Using binoculars, the detectives watched four individuals on the porch of the residence, two of whom, Ed English and defendant, they recognized.

A third undercover detective, Keith Johnson, drove up the street, parked his car, exited the vehicle and approached the four individuals on the porch. Johnson entered the building with defendant and English. In exchange for $50, Johnson was given two plastic bags marked with a seal of "the Animal." Lab tests of the contents confirmed the substance was cocaine. Johnson exited the residence and told Goncalves he had purchased CDS from the two. Johnson later identified two photographs of defendant and English as the individuals who sold him the CDS. Mikolajczyk also consistently testified to these facts, except he stated Johnson was shown several photographs to identify the suspects.

The defense presented the testimony of Chantell Thompson, who related she had dinner with defendant on April 16, 2003. The State attacked Thompson's credibility, including her inability to recall certain details, the fact that she did not come forward until a few months before trial, and that defendant spoke to her a few weeks before she testified.

English also testified, explaining he had entered a plea agreement to testify truthfully. English identified a third party, "Damian," not defendant, as the man who accompanied him into the residence to sell the CDS to Johnson. English asserted defendant was not present.

The parties stipulated the residence where the transaction took place was within 1000 feet of a school zone. Defendant was convicted. He did not file a motion for acquittal at the close of evidence or for a new trial. R. 3:20-1.

On appeal, defendant asserts the State's evidence was insufficient to sustain the verdict and that his sentence was excessive. We have considered these issues in light of the record, the applicable law, and the arguments of counsel, and we conclude neither is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these brief comments.

Prior to our review of a defendant's claim that a jury verdict is against the weight of the evidence, he or she must have filed a motion for a new trial with the trial court within ten days of the verdict. R. 2:10-1; R. 3:20-2; State v. McNair, 60 N.J. 8, 9 (1972); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Rule 2:10-1 states:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law. Defendant's failure to do so precludes our review.

We also reject defendant's argument regarding his sentence. Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Here, the sentence imposed does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). It is permitted by statute and is not unduly punitive. State v. Morton, 292 N.J. Super. 92, 99 (App. Div. 1996).

Affirmed.

20100512

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