On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Ashrafi and Nugent.
Defendant, Michael J. Myles, appeals from his conviction by a jury of
third degree possession of cocaine, N.J.S.A. 2C:35-10
(a)(1) (count one), third degree possession of cocaine with the
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two),
and third degree distribution of cocaine, N.J.S.A. 2C:35-
5(a)(1) and (b)(3) (count three). The judge merged counts one and two
with count three, and imposed a sentence of eight years of
imprisonment with four years of parole ineligibility.*fn1
We affirm the conviction and sentence, but remand for
correction of the judgment of conviction.
At trial, the State presented evidence that on July 19, 2008, at approximately 10:30 p.m., officers from the Trenton Anti-Crime Unit were conducting a "buy-bust" operation in which undercover agents purchased narcotics, then radioed back-up units to arrest the dealers. Detectives Erica DiMarcello and Tim Miller were in plain clothes, driving an unmarked pick-up truck in an area of Trenton known for drug transactions, when they spotted defendant. Defendant made eye contact with them and yelled "yo," a term they understood to be used by drug dealers to attract potential buyers. DiMarcello pulled the truck over, and defendant walked to the passenger side and bent his head down.
Miller said, "I have twenty, hook me up." Defendant told the detectives to wait, walked away, then returned two or three minutes later with a substance that proved to be crack cocaine.
Miller gave defendant two marked ten dollar bills and defendant told the detectives to "remember this face the next time you're in the area."
Miller radioed Officer Jason Snyder and a back-up unit, told them he had purchased crack cocaine, and gave them a description of the dealer. Snyder saw defendant a minute or two later and arrested him. DiMarcello and Miller then drove by the site of the arrest and radioed to Snyder that he had arrested the right person. Snyder subsequently searched defendant and found a razor blade, but neither the marked bills nor any drugs. Defendant was transported to the Trenton Anti-Crime Unit where Miller subsequently arrived and processed him. Miller testified that defendant blurted out, "I didn't sell you crack."
The jury rejected defendant's defense of mistaken identification. Defendant presents the following points for our consideration on appeal:
Point One - THE JURY CHARGE ON
IDENTIFICATION WAS INADEQUATE AND CONFUSING.
Point Two - DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AT EVERY STAGE OF HIS TRIAL.
Point Three - THE TRIAL COURT ...