On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1132. Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief). Peter E. Warshaw, Jr., Acting Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011 - Decided
Before Judges Gilroy and Nugent.
On May 6, 2008, a Monmouth County Grand Jury charged defendant under Indictment No. 08-05-1132 with third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1), (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35:5b(3), (count two); third-degree distribution of a CDS, N.J.S.A. 2C:35-5b(3), (count three); third-degree possession of a CDS on or within 1000 feet of school property, N.J.S.A. 2C:35-7, (count four); third-degree distribution of a CDS on or within 1000 feet of school property, N.J.S.A. 2C:35-7, (count five); and fourth- degree resisting arrest, N.J.S.A. 2C:29-2a(2), (count six).
Following his indictment, defendant filed a motion to suppress evidence that was seized pursuant to a search incident to defendant's arrest. On September 30, 2008, the court denied the motion. On March 17, 2009, a jury convicted defendant on counts one, two, four, and six.
On June 5, 2009, the court granted the State's motion to sentence defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7c. The court merged the convictions on counts one and two with the conviction on count four. On count four, the court sentenced defendant to a mandatory extended-term sentence of seven years of imprisonment with a three-year period of parole ineligibility. On count six, the court sentenced defendant to a twelve-month term of imprisonment, to run concurrent to the sentence imposed on count four. The court ordered both sentences to run consecutive to other sentences defendant was then serving.
On appeal, defendant argues:
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 TRIAL COURT'S FAILURE TO INSTRUCT THE JUR[Y] COMPLETELY AND ACCURATELY ON THE LAW OF INTENT TO DISTRIBUTE (Not Raised Below).
A. THE INSTRUCTION FAILED TO INFORM JURORS THAT THE ONLY BASIS UPON WHICH THEY COULD CONVICT THE DEFENDANT OF INTENT TO DISTRIBUTE WAS IF THEY FOUND HIM GUILTY OF DISTRIBUTION BECAUSE THE STATE CONCEDED THAT THE POSSESSION OF 19 SMALL BAGS OF HEROIN CANNOT PROVIDE A FACTUAL PREDICATE FOR FINDING THE DEFENDANT GUILTY OF INTENT TO DISTRIBUTE IN THE ABSENCE OF EXPERT TESTIMONY.
B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON EACH AND EVERY ELEMENT OF THE CRIME OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF 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 WITNESS ...