July 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCEL PRIDGEN, RESPONDENT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
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 Evidence at Trial.
The Law on Possession of CDS.
The Law as Applied to this Case.
POINT II: IT WAS ERROR TO ADMIT THE CDS INTO EVIDENCE BECAUSE IT WAS IRRELEVANT, NOT PROBATIVE IN THE ABSENCE OF ANY LINK TO DEFENDANT AND HIGHLY PREJUDICIAL. (Not Raised Below)
POINT III: DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
POINT IV: DEFENDANT'S SENTENCE WAS EXCESSIVE.
In a supplemental pro se brief, defendant raises the following additional points*fn3
POINT I: THE COURT VIOLATED PETITIONER'S SIXTH, AND FOURTEENTH AMENDMENT RIGHT TO HAVE HIS CHOICE OF COUNSEL.
POINT II: COUNSEL PREJUDICED PETITIONER BY NOT OBJECTING TO THE INSTRUCTION ON DISTRIBUTING AND DISPENSE PURPOSE OF COCAINE, WHEN THE JURY ASKED THE JUDGE TO DEFINE DISTRIBUTING AND DISPENSE PURPOSE. THE TOTAL JURY INSTRUCTION WAS PREJUDICE AND CUMULATIVE ERRORS THAT VIOLATED PETITIONER'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
POINT III: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO FILE A CLEARLY MERITORIOUS MOTION TO SUPPRESS THE C.D.S.
A. Law Enforcement Violated Defendant Pridgen's Fourth Amendment Rights By Not Obtaining A Warrant Prior To Stopping His
Vehicle, Arresting Him And Searching His Person.
POINT IV: THE STATE FAILED TO NOTIFY DEFENDANT BEFORE TRIAL THAT THEY WILL BE RELYING ON THE [LAB CERTIFICATE] VIOLATED DEFENDANT'S RIGHT UNDER THE CONFRONTATION CLAUSE U.S.C.A. CONST. AMEND. 6, 14; N.J.S.A. CONST. ART. I, ¶ 10; N.J.S.A. 25C:35-19.
POINT V: COUNSEL'S CUMULATIVE PERFORMANCE WAS CONSTITUTIONALLY DEFICIENT AND PREJUDICED THE PETITIONER, CUMULATIVE ERRORS.
POINT VI: THE ERRORS OF COUNSEL IN THIS MATTER WERE SO BAD THAT ACTUAL PREJUDICE NEED NOT BE SHOWN.
POINT VII: DEFENDANT'S SENTENCE IS [ILLEGAL] AND THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM OF FIFTEEN YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE AND VIOLATES DEFENDANT'S RIGHT TO A FAIR HEARING AND DUE PROCESS OF LAW.
Defendant's pro se points I through VI are based on matters outside the record and are more appropriately raised in a petition for post-conviction (PCR) relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We therefore decline to consider them without prejudice to defendant's right to file a timely PCR petition.
Having reviewed the record, we conclude that all of defendant's remaining arguments are without merit and, except to the extent addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant contends that the court should have granted his motion for a directed verdict at the close of the State's case. However, there was ample evidence from which the jury could infer that defendant possessed the twenty vials of cocaine, and that he possessed that amount of cocaine with the intent to distribute it. See State v. Reyes, 50 N.J. 454, 458-59 (1967). The police were not required to fingerprint the vials or photograph them at the scene where they were recovered; McVicar's eyewitness testimony was sufficient. There was no objection to the introduction of the CDS vials in evidence, and we find no error, plain or otherwise, in their admission in evidence. See R. 2:10-2.
In challenging his sentence, defendant admits that the extended term range for a second-degree offense, the type of which he was convicted, is ten to twenty years. See N.J.S.A. 2C:43-7(a)(3). He further acknowledges his eleven prior Superior Court convictions. Our review of the trial court's decision, which imposed a sentence in the mid-range of the possible extended term, is very limited. In his sentencing decision on August 20, 2009, Judge Callahan carefully weighed the appropriate factors in imposing the fifteen-year sentence and explained his reasons for imposing the seven and one-half years of parole ineligibility. We find no abuse of discretion or other error in the sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 364-65 (1984).