On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1490.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Graves.
Defendant Johnny Jones appeals from a final judgment of conviction for possession of a controlled dangerous substance (CDS) with intent to distribute and distribution of a CDS. He seeks the vacation of the judgment and a remand to the trial court, arguing essentially that: (1) the State proceeded on an erroneous legal theory; (2) the trial judge failed to properly instruct the jury as to joint possession in the context of the facts of the case; (3) improperly admitted testimony from State witnesses led to an unjust result; and (4) the jury should have been able to consider the State's failure to produce a witness at trial. We reject defendant's assertions of error, and we affirm the judgment of conviction.
On January 27, 2005, defendant Johnny Jones was arrested in the area of Belmont Avenue and North Eighth Street in Paterson, New Jersey. Defendant was subsequently indicted and charged with the following offenses: (1) third-degree possession of a CDS, heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); (2) third-degree distribution of a CDS, heroin, contrary to N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); (3) third-degree distribution of a CDS, heroin, within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 and 2C:35-5(a) (count three); (4) third-degree possession of a CDS, heroin, with intent to distribute contrary to N.J.S.A. 2C:35-5(a)(1), (b)(3) (count four); and (5) third-degree possession of a CDS, heroin, with intent to distribute within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 and 2C:35-5(a) (count five).
A trial was held before Judge Nestor F. Guzman of the Law Division, Passaic County, and a jury, over the course of three days - May 31, 2006 and June 1, 2, 2006. Sergeant George Rosario, Detective Claudio Mella and Detective Al Lewis testified on behalf of the State. Their depictions of the events leading up to defendant's arrest on January 27, 2005 were materially the same.
Sergeant Rosario was conducting surveillance in the area of Belmont Avenue and North Eighth Street in Paterson on January 27, 2005. The Sergeant observed a white male, later identified as Gregory Hemstra, approach the intersection, converse with a black male, later identified as defendant, and give the black male cash in exchange for a small item. Hemstra then started to walk up North Eighth Street. Sergeant Rosario called his arrest teams giving descriptions of both suspects and an order to apprehend them.
Detective Mella, acting as a member of a two-person arrest team, received Sergeant Rosario's directions. The detective and his partner were able to recognize Hemstra from Sergeant Rosario's description. After police questioning, Hemstra disclosed the location of two glassine envelopes of suspected heroin on his person. Hemstra was placed under arrest and transported to the location of the alleged dealing and defendant's subsequent arrest.
Meanwhile, a second two-person arrest team composed of Detective Lewis and his partner also received Sergeant Rosario's instructions. Upon seeing that defendant fit Sergeant Rosario's description of the suspected seller, Detective Lewis and his partner approached the area. The arrest team saw defendant place a white spray can with a black lid near some curbside garbage cans as they approached. While Lewis recovered the spray can and found eight glassines of suspected heroin inside, his partner detained defendant. Defendant was placed under arrest. Rosario positively identified Hemstra and defendant as the individuals involved in the exchange he had observed. The contents of all glassines were later confirmed to be heroin.
Defendant testified on his own behalf. Though defendant admitted to having an addiction to heroin and possessing eight glassines of heroin on the date of his arrest, he denied that he was a drug seller. Defendant stated that he returned home for his lunch break and intended to visit the bodega across the street from his home. Accompanied by his co-worker, an individual known only as Eddie, defendant then saw Hemstra, who he knew from his neighborhood. Defendant told Hemstra that he was going to get a sandwich and obtain some heroin in the back of the bodega. Hemstra asked if defendant and/or Eddie could get two glassines of heroin for him.
Over the course of defendant's testimony, he gave three distinct accounts of the events leading up to his arrest. In all three accounts, unlike the State's account of events, the transactions involving the heroin took place within the bodega and defendant was arrested shortly after exiting the bodega. In defendant's first account of the events, Eddie bought the heroin for both defendant and Hemstra, and then gave each of them their share. In the second version, an unnamed dealer within the bodega ("bodega dealer") gave defendant and Hemstra their separately purchased glassines of heroin. In defendant's third depiction, he bought ten glassines of heroin from the bodega dealer and Hemstra later gave defendant money in exchange for two glassines of heroin. The jury convicted defendant on all five counts of the indictment.
At the sentencing hearing, the court merged counts one (possession) and two (distribution) into count three (distribution within 1,000 feet of a school) and merged count four (possession with intent to distribute) into count five (possession with intent to distribute within 1,000 feet of a school). The court imposed a term of four years imprisonment with three years of parole ineligibility on count three and a concurrent term of four years imprisonment with three years of parole ineligibility on count five.
Defendant subsequently filed a motion to dismiss counts three and five on the grounds that the school that provided a factual basis for the school zone offenses had relocated prior to the date of his arrest. The State consented to the dismissals. At the resentencing hearing, the court dismissed counts three and five, merged count one into count two, and sentenced defendant to two years probation with 502 days of jail-time credit on count two and a concurrent sentence of two years probation on count four. Defendant was thereafter released from custody.
The points of argument raised by defendant, through counsel, in his brief on appeal are the following:
POINT I: 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 PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS SOLELY ON THE BASIS OF JOINT POSSESSION. (NOT RAISED BELOW)
A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT JOINT POSSESSION IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.
B. THE TRIAL COURT ERRED IN ITS INSTRUCTION OF THE LAW OF INTENT TO DISTRIBUTE CDS AND JOINT POSSESSION OF CDS BY FAILING TO MAKE IT CLEAR THAT A TRANSFER BETWEEN JOINT POSSESSORS IS NOT DISTRIBUTION.
POINT II: 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 ...