On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS); third-degree possession of CDS with intent to distribute; third-degree possession of CDS with intent to distribute within 1000 feet of a school, and fourth-degree resisting arrest. Defendant argues that the assistant prosecutor made improper comments in her opening statement, there was no basis for either the investigatory stop or the claim that he abandoned the drugs, the judge erred by denying his motion for acquittal, and his sentence was excessive. We disagree and affirm.
On December 20, 2007, at approximately 7:00 p.m., Trooper Gregory Austin and three other officers were in an unmarked police car patrolling a known "drug area" of Camden. While at an intersection, Trooper Austin observed defendant receive money from Tonya Homan in a nearby empty parking lot. After accepting the money, defendant turned around, walked a few steps away, and picked up a small bag.
The troopers exited their vehicle, approached defendant, and announced their presence. Defendant dropped the bag and fled, but was quickly apprehended. The troopers arrested defendant, searched him, and recovered $324 from his pocket. Trooper Austin retrieved the bag and found that it contained twelve individual ziploc bags each holding a substance subsequently determined to be heroin.
Defendant moved to suppress the heroin and argued that the investigatory stop was unjustified because the officers had no reasonable articulable suspicion to believe a drug transaction had occurred. Trooper Austin testified at the hearing and the judge found his testimony to be credible. The judge concluded that the officers had probable cause to arrest defendant "based on the observation of an apparent CDS transaction" and denied the motion.
At trial, the assistant prosecutor described the location of defendant's arrest as an area known for drug crimes. She stated: around a little after 7:00 in the evening, four state troopers were on patrol in Camden. They were approaching an intersection at Fourth and York [s]treets.
And you will hear from a witness that that's a high crime area and it's known for drug distribution. And the four troopers were driving up towards the intersection and you will hear from a trooper that he observed what he believed to be a drug transaction. Because he used circumstantial evidence, he put two and two together to make four.
Both Trooper Austin and Investigator Mark English testified that the location of defendant's arrest was known for drug trafficking. Investigator English also explained that it is typical for drug sellers to stash drugs in a bag away from their person. At the conclusion of the State's case, Judge Wells denied defendant's motion for a judgment of acquittal.
Homan testified at trial on behalf of defendant and admitted that she was attempting to purchase drugs on December 20, 2007, but not from defendant. She claimed that ten to fifteen other people were in the area that night.
A jury found defendant guilty of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Four). 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, and the judge granted the motion. He merged Counts One and Two into Count Three and sentenced defendant to a ...