On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. The judge denied the State's motion for an extended term and sentenced defendant to three concurrent terms of five years in prison with two and one-half years of parole ineligibility. The State cross-appeals the denial of its motion and requests that we remand for re-sentencing in the second-degree range. We affirm the convictions and remand for re-sentencing.
At 11:00 p.m. on a clear night, Trooper Plantier (Trooper Plantier) and Trooper Ryan (Trooper Ryan) were parked in an unmarked undercover police car at an undisclosed location. Trooper Plantier observed through binoculars two drug transactions in an "open-air drug market" within 1000 feet from a school. Trooper Plantier saw the first transaction from a distance of 150 feet. He noticed co-defendant Angel Lopez remove a sandwich baggie from his pocket that contained small objects and hand it to another man. That man handed what appeared to be United States currency to Lopez. Lopez then placed the currency into his right back pocket. Trooper Plantier concluded, based on his extensive training in street drug transactions -- 250 CDS arrests and 150 surveillances --that he witnessed a hand-to-hand drug transaction.
Ten to fifteen seconds later, Trooper Plantier observed the second transaction. He noticed defendant exit an SUV parked across the street from the hand-to-hand transaction and walk over to Lopez. Defendant removed a sandwich baggie from his pocket and handed it to Lopez and Lopez placed it into his left pocket. Lopez then handed currency to defendant and defendant placed it into his back right pocket. Trooper Plantier concluded that he observed a "re-up" transaction -- a drug distribution technique where a suspected drug dealer (defendant) re-stocks the drug inventory for the seller (Lopez). Trooper Plantier radioed for back-up troopers to arrest defendant and Lopez.
Sergeant Katz and Trooper Austin arrived at the scene, arrested defendant and Lopez, and conducted a search incident to the arrests. The search uncovered $2,933 from defendant's right back pocket, and $36. plus four clear plastic baggies of crack cocaine packaged for street-level sales from Lopez.
In addition to Trooper Plantier, the State called Investigator Randall MacNair (Investigator MacNair) to testify during the trial. Investigator MacNair testified as the State's expert in the field of street-level drug sales.
Lopez testified at the trial and admitted that he was addicted to crack cocaine. He stated that he had been previously arrested for possession of cocaine and that he had purchased drugs in the past. Lopez denied that he was a drug seller. Defendant did not testify. He called one witness who testified that defendant had cashed two checks at her business totaling $6,172.05.
After a four-day trial, a jury found defendant guilty of all the charges and Lopez guilty of possession of CDS.*fn1 The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f because defendant had a prior 1000-foot conviction in 2005, but the judge denied the motion.
On appeal, defendant raises the following points:
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, AS WELL AS HIS RIGHT TO CONFRONT WITNESSES, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, ...