On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-12-2744.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Rodríguez and Yannotti.
Pursuant to Rule 3:18-2, the State appeals from the April 9, 2009 order granting defendant John Arthur Jones's motion for a judgment nov on two convictions. Defendant cross-appeals from the remaining convictions. We affirm on the appeal and cross-appeal.
These are the State's proofs. On January 24, 2008, Neptune Police Officer Jason Petillo conducted a surveillance at the intersection of West Lake and Myrtle Avenue at 10:36 a.m. This is considered a high-crime area. Petillo saw two men. One was later identified as defendant. The other male, an African-American wearing a red sweatshirt, remains unidentified. The men stood in front of a liquor store. Petillo utilized binoculars to enhance his view. A blue Chevy pickup truck pulled up fifteen yards from the two men. Another male, later identified as co-defendant Anthony Vecchione, Jr., exited the vehicle and engaged in a conversation with the two men.
According to Petillo, he saw the unidentified male point in the opposite direction of Petillo's surveillance. The three men walked on Myrtle Avenue and stopped five yards before reaching the blue pickup truck. The three men "looked around." Petillo observed defendant reach into his left pants pocket with his left hand and pull out a napkin. Defendant used his right hand to pull small objects out of the napkin and handed the objects to Vecchione. Vecchione looked down at the items and smiled. Vecchione then reached into his left jacket pocket with his left hand and removed money. Vecchione separated the money, handed it to defendant and walked away. The unidentified male also walked away.
Petillo contacted Officers Kirchner and Monahan and provided a description of the suspected seller, who was inside the liquor store, and Vecchione's vehicle. Monahan responded to the liquor store. Defendant, who appeared "visibly nervous," was standing by the lottery counter. Monahan instructed defendant to step away from the counter and provide identification. Defendant submitted to a pat down search.
Defendant was arrested and searched. The search revealed sixteen Percocet pills contained inside a napkin. This was seized along with a piece of plastic glove. Monahan was unable to recall whether any money was found on defendant's person.
Officer Gregory T. Washington followed and then stopped Vecchione's pickup truck within two blocks of the liquor store. The pickup truck was following a black vehicle. Washington stopped Vecchione and questioned him. Vecchione informed Washington that he was in the area to meet his co-worker "Jason." Vecchione denied stopping anywhere else. Monahan informed Washington that defendant was under arrest for possession of Percocets. Washington arrested Vecchione. A search of Vecchione did not reveal any CDS. It is undisputed that the arrest occurred within 1,000 feet of a Roman Catholic school.
At headquarters, Monahan gave the Miranda*fn1 warnings to defendant. Defendant initialed each line to acknowledge that he understood each warning. According to Monahan, no promises were made to defendant prior to the an interview. Defendant denied selling two Percocets to Vecchione. However, he confessed that he provided the unidentified male a Percocet after the man complained of pain. Defendant received no money from the unidentified male for the Percocet.
Vecchione initially denied purchasing anything from defendant. Petillo informed Vecchione that his story was not consistent with defendant's version of the events. Vecchione confessed that he purchased Percocet pills for $10 from defendant. He threw the pills out his car window when he saw a patrol car behind him.
Vecchione pleaded guilty in exchange for the State's recommendation of a probationary sentence, conditioned on four months already served. He agreed to provide truthful testimony at defendant's trial. At trial, Vecchione testified that he went to the liquor store to meet "John" to purchase an ounce of marijuana. He purchased two Percocet pills from defendant and intended to follow the unidentified male to purchase marijuana. Defendant offered to sell him the pills after he told defendant why he was at the liquor store.
Following a jury trial, defendant was convicted of third degree possession of CDS, N.J.S.A. 2C:35-10a(1); third degree distribution of CDS to an unidentified male, N.J.S.A. 2C:35-5b(5); and third degree distribution of CDS to an unidentified male while within 1,000 feet of school property, N.J.S.A. 2C:35-7. Defendant was acquitted of third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(5); third degree possession of CDS with intent to distribution while within 1,000 feet of school property; third degree distribution of CDS to Vecchione, N.J.S.A. 2C:35-5b(5); and third degree distribution of CDS to Vecchione, while within 1,000 feet of school property, N.J.S.A. 2C:35-7.
Defendant moved for judgment nov as to the two counts charging a distribution to an unidentified male. The judge granted the motion, holding that there was insufficient corroboration to satisfy the independent proof requirement. On the remaining conviction, the State moved pursuant to N.J.S.A. 2C:43-7(a)(4) for imposition of an extended term based on defendant's prior criminal ...