On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-0903.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Waugh.
Defendant Salah O. Ali appeals his conviction on five counts of violating the laws regarding controlled dangerous substances (CDS), as well as the resulting aggregate sentence of incarceration for ten years with a forty-month period of parole ineligibility. We affirm.
We discern the following facts and procedural history from the record on appeal.
On November 23, 2008, co-defendant Brian Mignelli contacted Ali to arrange for the purchase of heroin in Asbury Park. Mignelli and his wife then drove to Asbury Park and parked on Church Street, as he had arranged with Ali. When Ali approached the passenger's side window of the car and leaned in, Mignelli gave him $160 in cash. Ali then walked to and entered a house on Pine Street. Shortly thereafter, he exited the house and returned to the Mignelli car. He leaned into the car, took two bundles, with ten bags of heroin in each, out of his pocket, and put the bundles into the car. Mignelli told Ali to keep five bags of heroin, which Ali returned to his pocket. The transaction took place within one thousand feet of a parochial school.
The transaction described above was witnessed by two Asbury Park police officers. They approached Ali while he was still adjacent to the Mignelli car. Ali was ordered to take his hands out of his pockets, at which time he was observed to have four bags of heroin. After Ali was arrested and searched, the fifth bag of heroin was recovered.
Although Mignelli had driven away when the police approached Ali, he and his wife were pursued and eventually stopped. The remaining heroin was found in the Mignelli car, although Mignelli originally told one of the police officers that he had thrown the heroin out of the car window. In fact, he had actually given it to his wife to hide during the police pursuit.
Ali was indicted on the following charges: possession of CDS, contrary to N.J.S.A. 2C:35-10(a)(1) (Count 1); possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (Count 2); distribution of CDS, contrary to N.J.S.A. 2C:35-5(b)(3) (Count 3); possession of CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count 4); distribution of CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count 5); possession of CDS with intent to distribute within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1 (Count 6); and distribution of CDS within 500 feet of public housing, contrary to N.J.S.A. 2C:35-7.1 (Count 7).*fn1 The State dismissed counts six and seven prior to trial.
Ali was tried before a jury on January 12 and 13, 2010. After presentation of the State's case, Ali moved for acquittal on the distribution counts. He argued that, because he and Mignelli had joint possession of the heroin, he could not be convicted of distributing it to Mignelli. The trial judge denied the motion. The jury convicted Ali on all counts.
Ali was sentenced on April 23, 2010. Because of his extensive prior record, he was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). Consequently, the sentencing range for the third-degree distribution-in-a-school-zone charge was from three to ten years of incarceration. The State recommended a nine-year sentence, with fifty-four months of parole ineligibility. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), with no mitigating factors. He imposed a ten-year sentence, with forty months of parole ineligibility.
Ali raises the following issues ...