On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-01-0084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Sapp-Peterson and Simonelli.
Following a jury trial, defendant Alvin Miller was convicted of fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(12) (count one); fourth-degree distribution of CDS, N.J.S.A. 2C:35- 5b(12) (count two); and third-degree distribution of CDS to a juvenile, N.J.S.A. 2C:35-5b(12) (count three). At sentencing, the trial judge merged count one with count two and sentenced defendant on count two to a five-year extended term of imprisonment with a two-and-one-half-year period of parole ineligibility and to a concurrent three years with an eighteen-month period of parole ineligibility on count three. The judge also imposed the appropriate penalties and fee, and suspended defendant's driver's license for six months.
On appeal, defendant raises the following contentions:
POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A BAIL REDUCTION, RESULTING IN AN UNJUST RESULT AFTER TRIAL.
POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO [SUPPRESS] EVIDENCE FOUND AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE.
POINT III THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.
POINT IV THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
At approximately 3:15 a.m. on September 8, 2007, Officer Anthony Murray of the Borough of Bradley Beach Police Department was in uniform, driving a marked police vehicle on routine patrol in the vicinity of a Hess gas station located on State Highway 71/Main Street, a high-crime area with substantial drug activity. Murray saw two men, later identified as Daniel Iraola, a juvenile, and Gregory Rudolph, exit the Hess station's convenience store and walk toward a third man, later identified as defendant, who was waiting for them at the rear of the store near an large opening in a fence. Murray saw the individuals conversing and, as he drove toward them, saw what he believed to be a hand-to-hand drug transaction between defendant and Iraola. As Murray exited his vehicle to further investigate, defendant abruptly turned, walked through the opening in the fence, and continued walking away, ignoring the officer's repeated orders to stop. Murray ordered Iraola and Rudolph to sit down and, believing defendant was going to flee, radioed for backup. Murray then saw defendant proceed to an area between two dumpsters, raise his arm in the air, and throw a black bag. Defendant then walked back to the officer. A pat down search of defendant revealed no drugs.
Sergeant Theodore Bianchi arrived at the scene and noticed that Iraola was "very nervous[,]""fidgety" and "agitated" during questioning, and reached for his waistband several times as if trying to conceal something. Iraola consented to a pat down search. As the officer searched Iraola, two blue baggies containing marijuana fell from Iraola's pant leg to the ground. Iraola said that he had purchased the marijuana from defendant for $10. The officer arrested Iraola and placed him in a patrol vehicle. Murray ...