On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-0561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Wefing, Grall and Messano.
Defendant Kelly De La Rosa, a/k/a Susano K. De La Rosa, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the single count contained in Bergen County Indictment No. 06-03- 0561, first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1). Defendant was sentenced to a custodial term of fifteen years, along with a five-year period of parole ineligibility. Appropriate financial penalties were also imposed.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.
THE STATE DEPRIVED THE DEFENDANT OF A FAIR TRIAL WHEN IT PRESENTED EXPERT TESTIMONY THROUGH DETECTIVE DARGAN WHICH WENT BEYOND LAY OPINION TESTIMONY AND FOR WHICH THE STATE DID NOT HAVE THE DETECTIVE QUALIFIED AS AN EXPERT WITNESS. (Partially raised below)
THE STATE'S EXPERT IMPROPERLY TESTIFIED TO THE ULTIMATE ISSUE OF GUILT, A MATTER WHICH INVADED THE PROVINCE OF THE JURY. (Not raised below.)
VARIOUS TRIAL TACTICS BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially raised below.)
§A - Asking the Defendant if the Officers were Lying
§C - The Prosecutor's Overzealous
Behavior Demeaned and Belittled the Defendant
THE COURT ERRED WHEN IT FAILED TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF UNLAWFUL POSSESSION OF COCAINE NOTWITHSTANDING THE DEFENDANT'S REQUEST NOT TO HAVE THE CRIME CHARGED.
THE COURT IMPOSED AN EXCESSIVE SENTENCE THAT DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.
We have considered these arguments in light of the record and applicable legal standards. We remand the matter for further proceedings regarding the denial of defendant's motion to suppress.
Defendant argues that his motion to suppress evidence seized from his car without a warrant should have been granted because: "[t]he search exceeded the scope and authority of the consent search by improperly invading the integrity of the structure of the vehicle"; "the State failed to establish that [he] voluntarily waived his right to be present at the scene of the car when being searched and failed to establish that [he] had the opportunity to withdraw consent . . . because he was not present at the vehicle"; the form used to obtain his consent "did not properly advise [him] of his right to withdraw consent at any point during the course of the search . . ."; and because defendant's "detention constituted the functional equivalent of an arrest[,]" and the State lacked probable cause. We consider these points in light of the salient testimony adduced at the pre-trial evidentiary hearing on defendant's motion.
On September 22, 2005, Detective Gerard Dargan of the Bergen County Prosecutor's Office was assigned to a multi-jurisdictional task force that "target[ed] criminal activity in the Bergen County/Hudson County area." He was contacted by an informant, who advised that defendant and Omar Ferrer would be flying from Newark Airport to Georgia that day. The informant had been "reliable" in the past, and his information had led to "a large number of cases" involving "large scale distributions of cocaine, multiple kilos, arrests and large sums of . . . currency." The informant told Dargan that the men would be "picking up a . . . 2001 [white] Hyundai Santa Fe" with Pennsylvania registration. The informant further told Dargan that the men would be driving back through New Jersey during the evening of September 23, and "was fairly certain that the vehicle would be ...