January 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SULE OSEI A/K/A, HIAWATHA BIBBY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT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 HAD FIRST-[H]AND KNOWLEDGE OF THE FACTS. (Not Raised Below).
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.
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 ADMISSION OF UNDULY PREJUDIC[IAL] LOCATION-PROFILING EVIDENCE. (Not Raised Below).
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 ERRONEOUS, ONE-SIDED, PREJUDICIAL INSTRUCTION ON THE LAW OF CIRCUMSTANTIAL EVIDENCE. (Not Raised Below).
THE DEFENDANT'S SENTENCE IS EXCESSIVE. THE DEFENDANT'S SENTENCE SHOULD BE VACATED AND REMANDED IN LIGHT OF THE AMENDMENT TO THE SCHOOL ZONE LAW [N.J.S.A. 2[C]:35-7].
We have considered defendant's arguments in light of the record and applicable law and determine that none of them are of sufficient merit to warrant a discussion in a written opinion.
R. 2:11-3(e)(2). Nonetheless, we add the following comments.
In Point VI, defendant argues that his sentence was excessive and that in light of the recent amendment to N.J.S.A. 2C:35-7 (permitting sentencing court to "waive or reduce" the minimum term of parole ineligibility) this court should vacate his sentence and remand for re-sentencing. We disagree.
We reject defendant's argument challenging his sentence as excessive. Although defendant raised the issue in his point heading, he did not brief the argument. Accordingly, the issue is deemed waived. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2011). What is more, based on defendant's past convictions for drug offenses, the court properly sentenced defendant to an extended-term sentence, and the sentence was not excessive.
Defendant argues next that we should vacate his sentence and remand for re-sentencing pursuant to the recent amendment to N.J.S.A. 2C:35-7. We decline the invitation to vacate the sentence. Although defendant may be entitled to have his sentence reconsidered pursuant to that statutory amendment, defendant must first move for that relief in the trial court.
Effective January 12, 2010 and applicable to any case pending on that date, N.J.S.A. 2C:35-7a ("Review of sentence for violation of drug-free school zones provisions") provides in relevant part:
[n]otwithstanding any court rule limiting the time period within which a motion to reduce or change a sentence may be filed, any person who, on the effective date of this act [January 12, 2010], is serving a mandatory minimum sentence as provided in section 1 of P.L. 1987 c. 101 [N.J.S.A. 2C:35-7] and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court. If the court finds that the sentence under review does not serve the interests of justice, the judge may re-sentence the defendant pursuant to subsection b. of section 1 of P.L. 1987, c. 101 [N.J.S.A. 2C:35-7]. In determining whether the sentence under review serves the interests of justice, the court shall consider all relevant circumstances, including whether the defendant pleaded guilty pursuant to a negotiated agreement, and whether the prosecution has agreed to dismiss one or more charges which, upon conviction, would have subjected the defendant to the presumption of imprisonment under subsection d of [N.J.S.A. 2C:44-1]. The determination by the court shall not be subject to appeal.
Based on the plain language of the statute, defendant must first seek the relief requested in the trial court. Accordingly, we reject defendant's argument under N.J.S.A. 2C:35-7a without prejudice to defendant filing a motion in the trial court for a review of his sentence.
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