On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3380.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2010 - Decided Before Judges Lisa and Alvarez.
Following trial by jury, defendant James Crawford was convicted of third-degree possession of a controlled dangerous substance (CDS), Alprazolam, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and a lesser-included disorderly persons possession of a prescription legend drug, Clonidine, N.J.S.A. 2C:35-10.5(e)(1) (count three). On April 25, 2008, defendant was sentenced as a second-time drug distributor to a mandatory extended term. N.J.S.A. 2C:43-6(f); N.J.S.A. 2C:43-7(a)(4). A sentence of five years imprisonment subject to three years of parole ineligibility was imposed on counts one and two, to be served concurrently. On count three, defendant was sentenced to six months county jail time, also to be served concurrently. Appropriate fines and penalties were assessed. He now appeals, and we affirm as to the convictions and remand for correction of the sentence.
Newark Police Officer Luther Eatmon testified that on June 6, 2006, he was assigned to the "Safe City Division" of the Newark Police Department. He and his partner, now-Sergeant Michael Santiago, were walking on Broad Street, approaching Market Street, at approximately 12:50 p.m., when he saw defendant holding an orange prescription bottle and saying "sticks," the vernacular for Xanax or Alprazolam.
When Eatmon made this observation, he was approximately eight feet from defendant. As soon as defendant saw the police, he turned and attempted to walk away but was detained, and the officers seized the prescription bottle. The arresting officers later searched defendant and found an additional prescription bottle containing seventy-four Clonidine pills. The prescription bottle for Alprazolam was in the name of Ricky Singleton and the prescription bottle containing the Clonidine pills was in the name of Carmen Guzman. On cross-examination, Eatmon said that he did actually not see defendant's "lips moving," but he "heard him verbalize sticks."
Santiago, who was a patrol officer and not a sergeant on the date of the incident, also testified. His recollection as to the date, time, and place accorded with Eatmon's testimony: as he and Eatmon walked down Broad Street towards the southwest corner, they turned and saw a man holding an orange bottle in his hand while repeatedly saying the word "sticks." When they approached defendant, since they were uniformed, defendant made a "sudden move, tried to conceal the bottle but . . . within seconds [they] detained him . . . and placed him under arrest . . . ." Santiago also recalled that when they searched defendant, they found a second prescription bottle containing Clonidine. On redirect, the officer reiterated that he first observed defendant from a distance of less than six feet, and that defendant was holding an orange prescription bottle in his hand while repeatedly saying "sticks."
Detective Reginald Holloway testified as the State's expert in street level narcotics transactions. He had been employed in law enforcement over eighteen years, eleven in the Essex County Sheriff's Bureau of Narcotics. During this time, he received specialized narcotics training and was involved in over 5000 narcotics investigations. He opined that the location of defendant's arrest was known for "it's high level distribution of CDS, narcotics, controlled dangerous substances." A hypothetical question was posed to him assuming the State's version of the facts in evidence, and he responded that the circumstances established possession of drugs for distribution rather than personal use.
After the State rested, defense counsel moved for a judgment of acquittal pursuant to Rule 3:18-1, which motion the trial court denied based on the eyewitness testimony given by Eatmon and Santiago, and the expert testimony given by Holloway. Defense counsel also advised the court that defendant would not testify but wanted the jury to be charged as to Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009).
The trial court charged the jury on count three on the lesser-included offense of possession of a prescription legend drug, N.J.S.A. 2C:35-10.5(e)(1). No objection was made by defense counsel to the instructions that were issued to the jury.
At sentencing, the trial court found aggravating factor three, the risk of reoffense, N.J.S.A. 2C:44-1(a)(3); factor six, the extent of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); and factor nine, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). The judge did find factor two in mitigation, that defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2). Defendant had been arrested on thirty-three prior occasions, and had been previously convicted of five indictable offenses, including drug distribution offenses.
Defendant raises the following points on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS ...