On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1802.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and LeWinn.
Defendant Marcel Pridgen was convicted by a jury of these charges: second-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a public housing zone, N.J.S.A. 2C:35-7.1; third-degree CDS possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:5a(1), 5b(3); and third-degree CDS possession, N.J.S.A. 2C:35-10a(1). After merger, he was sentenced to fifteen years in prison with seven and one-half years of parole ineligibility. We affirm the conviction and the sentence.
I These are the most pertinent facts. Sergeant Thomas McVicar of the Jersey City Police Department was conducting a surveillance operation on Bramhall Avenue when he saw defendant ride a bicycle into the area. He saw defendant stop and walk into an alleyway between two buildings. McVicar testified that he saw defendant walk ten to twelve feet down the alley and "remove a plastic bag from the front of his shorts underneath his T-shirt." He then observed defendant "digging in the dirt, placing that plastic bag into the dirt" and then "covering it up somehow." Defendant then "left the alleyway" and rode away on his bike.
Believing that defendant might have just buried a stash of drugs, McVicar drove around the corner to alert his back-up officers, Hilburn and Dowell, and returned with them to the alleyway. McVicar located the place where he had seen Pridgen digging. Under a piece of wood, McVicar found "the hole dug in the ground," and from the hole he "recovered a plastic bag," containing twenty gold-capped vials of a substance he suspected was cocaine.*fn1 After recovering the CDS, the three officers located defendant a half-block away and arrested him. According to McVicar, the drugs were found within 500 feet of a public housing project and within 1000 feet of a school. McVicar explained that he did not think it was necessary to have the vials fingerprinted, because he had seen defendant bury them.
On cross-examination, McVicar admitted that shortly before he observed defendant burying the drugs, he also observed someone selling drugs nearby. That individual, named Miller, also had a stash of drugs, which the police found hidden about fifty feet away from defendant's stash. Miller's stash consisted of thirty-two blue-capped vials of cocaine and a bag of heroin. He was also arrested. However, McVicar believed that defendant was not involved in Miller's activities.*fn2 Officer Dwayne Dowell corroborated McVicar's testimony about the recovery of defendant's stash of drugs, and about the recovery of Miller's stash from a completely different location.
Sergeant Wally Wolf, testifying as an expert witness, explained to the jury what a "stash" was and how street-level drug dealers use them to avoid being caught with a large quantity of drugs. He also explained that drug dealers package cocaine in "clips" of ten vials containing one tenth of a gram each, and they sell each vial for eight to ten dollars. Thus, the twenty vials in defendant's stash would amount to two grams of cocaine. He testified that cocaine purchased in quantity would sell for thirty-five to forty dollars a gram. It would then be sold in tenth-of-a-gram vials for about triple that price. According to Wolf, no one wanting two grams of cocaine for personal use would buy twenty separate vials, because of the huge mark-up in price.
II On this appeal, defendant raises the following points of argument:
POINT I: IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL.
The Standard for a Motion of Acquittal.
The Law on Possession ...