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State v. Kelley

August 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRENCE KELLEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0648.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Defendant Terrence Kelley appeals from his conviction by a jury for possession of cocaine with intent to distribute in a school zone and for hindering prosecution. He also appeals the extended term sentence imposed by the court. We affirm.

Defendant was arrested and charged along with co-defendant Cornelius Smith on February 2, 2007. At about 11:45 a.m. on that date, Detective Evelyn Gonzalez of the Paterson Police Department was conducting surveillance in the area of 10th Avenue between East 25th and 26th Streets to address citizen complaints about drug dealing in the area. She observed defendant and Smith standing about 150 to 200 feet from where her unmarked police vehicle was parked. Ten minutes after setting up the surveillance, she observed a man approach Smith and have a brief conversation. She then saw Smith walk several feet to a public telephone, reach behind it, and obtain a dark object. She saw Smith hand something to the man in exchange for what she perceived to be paper currency. During the transaction, defendant was looking into the trunk of a green Acura parked near the pay phone. As the unidentified man walked away, Smith put something back behind the telephone, walked over to defendant, and appeared to hand him currency, which defendant placed in his pants pocket.

Ten to fifteen minutes later, Detective Gonzalez observed a second transaction with a different unidentified man conducted in a similar manner. She again saw defendant receive what appeared to be money from Smith and put it into his pocket.

Detective Gonzalez contacted other police units but they were unable to respond to her request for assistance at that time because of other duties. Gonzalez continued to observe Smith and defendant. Smith briefly spoke to defendant and then walked away. Defendant closed the trunk of the Acura, walked over to the pay phone, and appeared to retrieve something from behind the phone. Defendant then drove away in the Acura but stopped briefly at the corner of 10th Avenue and 26th Street and picked up Smith.

Detective Gonzalez again contacted other units and gave them a description of the vehicle and its direction of travel. Defendant drove on East 26th Street and made a right turn onto 11th Avenue, coming within 1,000 feet of Rosa Parks School. Sergeant Troy Bailey and Detective William Palomino stopped the Acura ten blocks away from the location of the surveillance. They found seven glassine baggies of cocaine in a magnetic black key box placed near the gas pedal. They arrested defendant and Smith.

Defendant and Smith were transported together to the police station and sat near each other handcuffed to a bar by one hand for about forty-five minutes before they were processed. When the police conducted an inventory search of the two men, they found no money on defendant's person but found $313 in Smith's possession.

At the station, Detective Gonzalez conducted a field test on the substance in the baggies recovered from the Acura. The test was positive for cocaine.

A grand jury returned a four-count indictment against defendant and Smith: (count one) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count three) third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and 2C:35-5a; and (count four) fourth-degree hindering apprehension by concealment of evidence, N.J.S.A. 2C:29-3b(1). Smith entered into a plea agreement with the State and pleaded guilty to the school zone count. Defendant was tried before a jury on March 17 to 20, 2008. The jury found him guilty of all four charges.

Defendant was sentenced on July 31, 2008. After merging counts one and two into count three, the school zone charge, the judge imposed a mandatory extended term sentence under N.J.S.A. 2C:43-6f of eight years' imprisonment with a minimum period of four years before parole eligibility. In addition, the judge sentenced defendant to eighteen months' imprisonment on count four, the hindering charge, to run concurrently to the sentence on count three. Defendant filed a notice of appeal on December 3, 2008.

On appeal, defendant raises the following points of argument:

POINT I

IT WAS PLAIN ERROR NOT TO INSTRUCT THE JURY

ON THE LESSER INCLUDED OFFENSE OF WANDERING TO OBTAIN OR SELL CDS, THE ELEMENTS OF WHICH ARE SUPPORTED BY THE EVIDENCE; A REVERSAL IS WARRANTED (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING A MOTION FOR A JUDGMENT OF ACQUITTAL AND A MOTION FOR A NEW TRIAL (PARTIALLY RAISED BELOW).

POINT III

THE COURT ERRED IN ALLOWING TESTIMONY ABOUT THE MONEY RECOVERED FROM THE DEFENDANTS AFTER COURT RULED THAT TESTIMONY COULD NOT BE ADDUCED.

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE STIPULATIONS TO BE ENTERED (NOT RAISED BELOW).

POINT V

THE TRIAL COURT ERRED BY NOT HOLDING AN APPROPRIATE CHARGE CONFERENCE WHICH PREJUDICED THE DEFENDANT (NOT RAISED BELOW). POINT VI THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (NOT RAISED BELOW).

POINT VII

THE DEFENDANT'S SENTENCE WAS DISPARATE AND NOT JUSTIFIED AS COMPARED TO HIS CO-DEFENDANT'S ...


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