On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1321.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010
Before Judges Payne and Messano.
Defendant, Vinson Wingate, was convicted by a jury of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1), third-degree distribution and/or possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5b(3), third-degree possession of cocaine with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7, second-degree possession of cocaine with the intent to distribute it within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a. After merger of the third-degree drug convictions into the second-degree drug conviction, defendant was sentenced to ten years in custody, subject to a five-year period of parole ineligibility. He was additionally given a concurrent eighteen-month sentence on the conviction for resisting arrest. Defendant has appealed his conviction and his sentence.
In a counseled brief, defendant has made the following arguments:
THE COURT ERRED IN PERMITTING THE STATE TO POSE A HYPOTHETICAL QUESTION TO THEIR DRUG EXPERT WHICH CALLED FOR A CONCLUSION ON THE ULTIMATE ISSUE IN THE CASE.
THE SENTENCE IMPOSED, 10 YEARS WITH A FIVE YEAR PAROLE BAR, WAS MANIFESTLY EXCESSIVE.
Defendant has additionally filed a pro se brief in which he argues that variances between the police report and the trial testimony of Sergeant Jeffrey Frett require reversal of the verdict against defendant. He additionally argues that the sentence is manifestly excessive when considered in the light of defendant's actual prior convictions.
Testimony in this matter establishes that, on the morning of March 12, 2008, members of the Camden Police Department were conducting an undercover surveillance in the area of Tenth Street and Carl Miller Boulevard near the Branch Village public housing complex and Cream School. At 10:50 a.m., Police Officer Miguel Rodriguez observed a person, later identified as defendant, exchanging what he described in his police report as an "unknown item," which he removed from his left front coat pocket, for currency proffered by a heavy-set Caucasian woman. A few minutes later, another female approached defendant, and another exchange of currency for an item occurred.
At this point, Rodriguez requested that an assisting unit move in and detain defendant. Within one minute, a marked Camden police car, driven by Sergeant Jeffrey Frett and occupied by his brother, Sergeant William Frett, came to the scene and stopped within ten feet of defendant, who was standing with another black male. The two were ordered to approach the police vehicle. However, defendant instead fled on foot, pursued by William Frett. Jeffrey Frett drove along side of defendant as he ran. During his flight, defendant was observed by Jeffrey Frett to toss an object into what was termed an empty trash can in the police report, but was described as a dumpster by Frett in his trial testimony. Soon thereafter, Jeffrey Frett blocked defendant's progress with his police car, and defendant was taken down and handcuffed. After a clear plastic bag containing twenty-one smaller green, heat-sealed bags of crack cocaine was retrieved from the dumpster by Jeffrey Frett, defendant was arrested. The sum of $140 was recovered from defendant in a search ...