On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-0394.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Wefing, Payne and Baxter.
Tried to a jury, defendant William Hohney appeals from his November 14, 2008 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count four); and second-degree distribution of CDS within 500 feet of a prohibited location, N.J.S.A. 2C:35-7.1 (count five). After merging counts one, two and three with count five, the judge sentenced defendant on count five to an eight-year term of imprisonment, subject to a three-year parole ineligibility term. On count four, the judge imposed a sixteen-year sentence, with an eight-year period of parole ineligibility, concurrent to the sentence on count five.
On appeal, defendant raises the following claims:
I. THE JURY INSTRUCTION PROVIDED AFTER THE FOREPERSON INDICATED THE JURY WAS DEADLOCKED WAS INADEQUATE, MISLEADING AND RESULTED IN A MISCARRIAGE OF JUSTICE (Partially Raised Below).
II. THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY (Not Raised Below).
III. DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
IV. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We reject each of these contentions and affirm defendant's conviction and sentence.
On November 19, 2007, New Jersey State Trooper Carlos Rodriguez was on routine patrol in North Camden with Troopers Austin and Rawles.*fn1 At approximately 8:11 p.m., they observed two individuals, defendant and a juvenile, standing on the corner of 7th Street and York Avenue in front of a store. Rodriguez parked the unmarked van approximately 75 to 100 feet away so they could observe the individuals. Rodriguez testified that he had an unobstructed view, and although it was dark, he was able to see the two with the light coming from the storefront and streetlights.
A short while later, the troopers observed a silver Toyota arrive and a white female exit the vehicle and approach defendant. After a brief conversation, the woman handed defendant money, while the juvenile, who was standing nearby, was observed "looking around the area as if he was looking for somebody or something." Defendant called to the juvenile, who then handed an item to the woman. After examining the item, she quickly returned to her vehicle. As the troopers approached the intersection, she quickly drove away and was never apprehended.
Rodriguez testified that he and the other two troopers exited their vehicle and identified themselves as "State Police," at which time the juvenile entered the store and threw a small plastic bag toward the food aisles. Rodriguez retrieved the bag, and found it to contain crack cocaine and heroin. Defendant and the juvenile were both arrested. Defendant was found with $70 in currency on his person. Rodriguez testified that the intersection of 7th and York was within 1000 feet of a school and 500 feet of a public park. On cross-examination, Rodriguez testified that defendant was wearing a "black hat."
The State also called as a witness Randall C. MacNair, an investigator in the narcotics unit of the Camden County Prosecutor's Office, who was qualified as an expert witness in the field of street-level drug operations. MacNair testified that there is not a specific procedure to which all drug "set[s]" adhere, and the details of the operation will vary based upon the location. He explained to the jury that if two drug dealers are working together, one person, the "moneyman," would act as a lookout and collect the money, while the other person would give the CDS to the buyer. MacNair explained that such a scheme, where one person holds the money and the other person holds the drugs, benefits drug dealers because it enables ...