On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-04-0939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010 - Decided
Before Judges Graves and J.N. Harris.
A Bergen County grand jury charged defendant Travis Townsend with fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1(a) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count two); third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count five).*fn1 On August 22, 2006, a jury acquitted defendant of resisting arrest but found him guilty on the remaining four counts. Because he was a repeat drug offender, the court sentenced defendant to a seven-year mandatory extended prison term with three-and-one-half years of parole ineligibility on count three; concurrent five-year terms on counts four and five; and a concurrent eighteen-month term on count one. Appropriate statutory penalties and assessments were also imposed.
On appeal, defendant presents the following arguments:
THE JUDGE'S INTERFERENCE THROUGH THE PARTISAN QUESTIONING OF DEFENSE WITNESSES, DESIGNED TO DEMONSTRATE THAT ONE WITNESS'S TESTIMONY WAS INCONSISTENT WITH DEFENDANT'S TESTIMONY AND THAT A SECOND WITNESS'S APPEARANCE WAS NOT VOLUNTARY BUT PURSUANT TO A WRIT FROM PRISON, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. Const., Amend. XIV; N.J. Const. (1947), Art. I, pars. 1, 9, 10.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
DEFENDANT'S CONVICTIONS FOR POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE (SCHOOL ZONE) AND POSSESSION OF COCAINE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE.
Based on our examination of the record, the briefs, and the applicable law, we affirm defendant's convictions. However, we remand for resentencing.
On October 1, 2003, while patrolling a high crime area in the City of Englewood in an unmarked vehicle, Officer Salvatore LaFerlita (Officer LaFerlita) and Parole Officer Sean Van Luben (Officer Van Luben) observed defendant and Washington standing on the sidewalk consuming alcohol in violation of an Englewood ordinance. Officer Van Luben recognized Washington, a parolee, and the officers stopped their vehicle to question the two men.
At that point, defendant and Washington walked from the sidewalk area up the front steps of a residence, which was later determined to be Washington's home. The officers followed them onto the property and went "up a couple of steps." Officer LaFerlita directed his attention to defendant, while Officer Van Luben questioned Washington.
Officer LaFerlita testified that defendant "was clearly intoxicated. He was acting belligerent, he was agitated, his position was that he was on private property, he was tired of getting harassed by the cops, he wasn't doing anything wrong."
Defendant's behavior, in conjunction with an approximately seven-inch height advantage and position "one or two steps" above the officers, prompted Officer LaFerlita to conduct a pat- down search for weapons. As Officer LaFerlita began the pat down, defendant "swung his right elbow" at him and began to run.
Officer LaFerlita chased defendant past "about three houses" and tackled him to the ground. After a brief struggle, defendant was handcuffed and placed under arrest. Officer LaFerlita then searched defendant and found two clear plastic bags containing seventy-three rocks of a substance later confirmed to be crack cocaine in defendant's pocket.
At trial, the State elicited testimony from Detective Donald Ingracelino of the Bergen County Narcotics Task Force (Detective Ingracelino), who was qualified as an expert in the field of narcotics trafficking. In response to a hypothetical question, which mirrored the facts of the case, Detective Ingracelino testified that possession of seventy-three bags of crack cocaine--valued at over $700--without accompanying use paraphernalia suggested that the crack cocaine was possessed with an intent to distribute. Additionally, the parties stipulated that defendant was arrested within a school zone.
Defendant testified and admitted that he possessed the seventy-three rocks of crack cocaine, but he claimed that the cocaine was for his personal use, not distribution. Defendant's fiancee Andrian Pauli (Pauli), defendant's father, and Washington all testified regarding defendant's drug habit.
In his first point, defendant argues that he was deprived of a fair trial because the judge questioned Pauli in a manner that "suggested that the defense case was weak and inconsistent" and characterized Washington's trial testimony as "involuntary." We disagree.
Chronologically, Officer LaFerlita and defendant testified before Pauli. Officer LaFerlita stated that once defendant was apprehended, handcuffed, and placed under arrest, a subsequent search revealed two bags of crack cocaine. Defendant refuted Officer LaFerlita's sequencing, asserting that Officer LeFerlita had taken the drugs from his pocket while he was on Washington's front steps:
[DEFENDANT]: [Officer LaFerlita] went in my pocket . . . . [H]e he just stuck his hand in my pocket and pulled out two bags.
[DEFENSE COUNSEL]: And then what happened?
[DEFENDANT]: I pushed his hand away and began ...