On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 07-10-1657 and 08-01-0183.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Payne and Baxter.
Defendant, Anthony Beckwith, was indicted by a Hudson County Grand Jury, along with others, pursuant to Indictment No. 07-10-1657, for the crimes of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Seventh Count); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (Eighth Count); third-degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Ninth Count); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Tenth Count); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Eleventh Count); second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1a (Twelfth Count); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2, 2C:35-5a(1) and 2C:35-5b(3) (Thirteenth Count). He was charged in Indictment No. 08-01-0183 with second-degree possession of a revolver for an unlawful purpose, N.J.S.A. 2C:39-4a (First Count), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Second Count), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9e (Third Count).
Defendant was tried on Indictment No. 07-10-1657. He was convicted by a jury of all charges except conspiracy. Defendant was sentenced to three years in prison for merged counts of possession and possession with the intent to distribute CDS. He was sentenced to five years in custody with three years of parole ineligibility on the school zone charge, and he was sentenced to three years in custody on the merged weapons charges. Although these sentences were run concurrently, defendant was also given a consecutive sentence of five years in custody on the charge of possessing a weapon while committing a CDS crime. Aggravating factors 3 (risk of reoffense) and 9 (the need for deterrence) were found, N.J.S.A. 2C:44-1a(3) and (9), along with mitigating factor 11 (the hardship imposed on defendant's pregnant fiancée), N.J.S.A. 2C:44-1b(11).
Following trial, on July 14, 2008, defendant pled guilty, pursuant to Indictment No. 08-01-0183, to second-degree possession of a weapon for an unlawful purpose after accepting a plea offer of five years in custody with three years of parole ineligibility, concurrent to the sentence imposed on the earlier indictment. As we have stated, defendant's appeal addresses that earlier 2007 indictment.
On appeal, defendant presents the following arguments:
POINT I THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD POSSESSED CDS AND THE GUN.
POINT II THE TRIAL COURT ERRED IN PERMITTING SERGEANT CHRISTOPHER ROBATEAU TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS. (Not Raised Below.)
POINT III THE WARRANTLESS SEARCH AND SEIZURE OF THE CDS AND GUN WAS NOT BASED ON ANY REASONABLE AND ARTICULATE (SIC) SUSPICION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION SUPPRESSING THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I PARS. 1 AND 10. (Not Raised Below).
POINT IV NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL.
POINT V THE DEFENDANT CLEARLY AND CONVINCINGLY SHOWED THAT RELEVANT MITIGATING FACTORS WERE PRESENT TO AN EXTRAORDINARY DEGREE, AND, CUMULATIVELY, THEY GREATLY EXCEEDED ANY AGGRAVATING FACTORS.
The record establishes that, on the morning of July 17, 2007, the Jersey City police conducted a drug surveillance in the area of 49-A Jewett Avenue. While the surveillance was underway, Officer Ray Weber, who was located in very close proximity to the events he described, observed Roscy Dennis*fn2 sitting on the steps of 49-A Jewett Avenue, where he was joined by defendant, who exited the building and sat beside Dennis for a short time before both men reentered the building, reappearing shortly thereafter. Olu Rotilu was seated nearby in a silver Nissan Altima. Thereafter, Vagarri Craig, a passenger who was driven to the location in a blue Volvo, left the car while counting currency, approached Dennis and defendant, and conversed with them. Dennis then called to Rotilu, who left the Altima and engaged in what ...