On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Skillman, Gilroy and Simonelli.
A grand jury indicted defendant Rodney Harris and other individuals on numerous drug-related charges. Defendant and co-defendant Rodney Coleman, defendant's father, Kelly Felder, defendant's step-mother, and Donald Scott, defendant's neighbor, were tried jointly. A jury convicted defendant of second-degree conspiracy to possess a controlled dangerous substance (CDS) (cocaine) and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count four); distribution of CDS on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five); and third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count seven). The jury acquitted defendant of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count twelve), third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count thirteen); and third-degree distributing, dispensing or possessing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count fourteen), and the judge dismissed the disorderly persons offense of use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2.
At sentencing, the trial judge imposed a mandatory extended-term sentence of seven years on count one; merged count four with count five; imposed a concurrent five-year term of imprisonment with three years of parole ineligibility on count five; and imposed a concurrent mandatory extended-term sentence of seven years with three years of parole ineligibility on count seven. The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for two years.
We incorporate herein the facts set forth in our unpublished opinion simultaneously filed with this opinion, State v. Coleman, A-5208-06T4, which was calendared back-to-back with this case.
Against these facts, defendant raises the following contentions:
POINT I - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE JURY DELIBERATION PROCESS.
POINT II - THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION. (NOT RAISED BELOW).
POINT III - THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (NOT RAISED BELOW).
POINT IV - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.