On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Defendant Rahim Muhammad appeals from his conviction by a jury of second degree conspiracy to possess, or to possess with intent to distribute, cocaine, N.J.S.A. 2C:5-2, (count one); third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), (count two); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3), (count three); and third degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, (count four).*fn1
At sentencing, the trial court determined that counts one, two and three merged with count four. On count four, the trial court sentenced defendant to six years in prison with a period of three years of parole ineligibility, suspended defendant's driving privileges for twelve months, and imposed the requisite financial penalties and assessments. We affirm.
Defendant presented no evidence at trial, so we ascertain the following facts from the State's evidence presented to the jury. On July 27, 2007, the Newark police were conducting drug surveillance at an intersection in Newark. Officer Celso Vinueza, who is the only officer who witnessed the drug transaction, testified that he was in an unmarked car in civilian clothes observing the intersection with binoculars. He observed an unidentified Hispanic male approach a group of males on the southeast corner of the intersection. A juvenile initiated a conversation with the man, and the man handed the juvenile some currency. The juvenile signaled to the group of males on the southwest corner of the intersection. The unidentified man and defendant, whom the officer identified in court, then began walking together. Defendant retrieved a plastic bag from his waistband and took from it an item which he handed to the man.
Believing that he had witnessed a drug transaction, Officer Vinueza alerted his "take down" unit. An officer from the take down unit testified that he detained the group of males on the southeast corner and, based on the description of clothing from Officer Vinueza, he arrested defendant and the juvenile. He found twenty-seven small Ziploc baggies of cocaine in defendant's waistband. The State also presented the testimony of an expert in drug distribution.
On appeal, defendant raises the following issues:
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL. SUCH DENIAL VIOLATES BOTH BANKSTON*fn2 AND CRAWFORD*fn3 AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL.
THE COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. ...