On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0673.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Payne.
Defendant, Christopher Guiles, appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), possession of CDS with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7. Defendant appeals, as well, from his extended term sentence as a persistent offender of ten years with five years of parole ineligibility, imposed pursuant to N.J.S.A. 2C:44-3a.
The record demonstrates that, on February 11, 2007, during a planned surveillance, Officer Michael Burgess, a member of the Narcotics Unit of the Jersey City Police Department, observed defendant and Tony Carter engaged in two drug sales near a bodega on a corner in Jersey City, located within 1000 feet of a school. In each case, contact by the buyer was initially with Carter, but the hand-to-hand sale transaction was completed by defendant. In the first instance, the buyer was not located by the police following the sale. In the second, other police officers stationed as part of a perimeter unit followed the buyer, Eugene Chambers, who drove his truck to his residence, where Chambers parked. A bag of suspected heroin, marked "First Class," was found in plain view by the officers in a beverage cup located between the two front seats in the console of the truck driven by Chambers. Chambers was arrested.
Following the arrest of Chambers, defendant was arrested by Police Officer Peretti, and Officers Butrose and Lugo arrested Carter. A bag of suspected heroin marked "First Class" was removed from defendant's jacket pocket during the course of a search incident to arrest, along with cash in the amount of $233. Additionally, after defendant had been removed from the police's holding cell for transport to the jail, a stash of thirteen bags of "First-Class" heroin was discovered near where defendant had been seated in the cell.
Following a jury trial, at which defendant did not testify or offer witnesses, defendant was convicted of possession of heroin, possession with intent to distribute heroin, and possession with intent to distribute heroin within 1000 feet of a school. He was acquitted of charges of distribution to Chambers, distribution to Chambers within 1000 feet of a school, and conspiracy to distribute.
On appeal, defendant presents the following arguments:
THE STATE'S RELIANCE ON AN ABSENTEE WITNESS TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITION. [(Not Raised Below)]
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, INCOMPLETE, AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE. (Not Raised Below)
A. THE TRIAL COURT FAILED TO DISTINGUISH BETWEEN A TRANSFER FROM ONE JOINT POSSESSOR TO ANOTHER (NO INTENT TO DISTRIBUTE) AND A TRANSFER TO A THIRD PARTY (INTENT TO DISTRIBUTE).
B. THE INSTRUCTION PERMITTED THE JURORS TO FIND THE DEFENDANT GUILTY OF INTENT TO DISTRIBUTE BASED ON AN ATTEMPTED DISTRIBUTION, BUT THE COURT FAILED TO INSTRUCT THE JURORS ON THE LAW OF ATTEMPT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW ...