On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2011
Before Judges Cuff and Lihotz.
A jury found defendant Roger E. Coley, Jr., guilty of third degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); and third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35- 5a(1) (Count Two). After merging Count One with Count Two, defendant was sentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility.*fn1 The appropriate fines, fees, penalties and assessments were also imposed. We reverse the conviction for possession of CDS with intent to distribute and remand for further proceedings. We affirm the possession of CDS conviction.
On the evening of November 28, 2007, defendant Roger E. Coley, Jr., was driving a car in Woodbridge. There was one other occupant of the car. Defendant stopped the car at a red traffic signal. Unknown to him, a police car was nearby. The driver of the police vehicle determined that there were active arrest warrants for the owner of the car. When the traffic light turned green, the driver accelerated eventually reaching fifty-four miles per hour in a twenty-five mile per hour zone. The police officer, Brian McGuirk, activated the overhead lights and siren on the police vehicle and stopped the car. The officer believed at least one other person was in the car.
Immediately after stopping, the driver, later identified as defendant, emerged from the driver's side of the car flailing his arms and yelling, "I don't have a license." Officer McGuirk instructed defendant to return to the car. Although defendant did so, he kept the door ajar. McGuirk requested assistance and, as he awaited the arrival of another officer, defendant emerged from the car and approached him again. At this time, McGuirk drew his weapon and instructed defendant to return to the car.
McGuirk arrested defendant due to outstanding arrest warrants. As the officer commenced applying handcuffs, defendant placed his left hand on top of his head and dropped a small white plastic bag from his right hand. After both wrists were secured, the officer instructed defendant to spread his feet outwards to allow the officer to frisk defendant for weapons. As defendant spread his legs, he moved his right foot forward in an attempt to kick the dropped article under the car and out of the sight of the officer. After the officer placed defendant in the rear passenger seat of the police vehicle, McGuirk informed another officer at the scene to retrieve the article dropped by defendant and kicked under the car. The police officer, who retrieved the small plastic bag, opened it. McGuirk looked inside and saw four, individually wrapped packages, which he believed were heroin.
On appeal, defendant raises the following arguments:
POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE 14TH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED EXPERT WITNESS OPINIONS.
POINT II THE TRIAL COURT ERRED BY NOT GRANTING
DEFENDANT'S MOTION PURSUANT TO R. 3:18-1 FOR A JUDGMENT OF ACQUITTAL AND R. 3:18-2 TO SET ASIDE THE VERDICT AS TO THE INTENT TO DISTRIBUTE COUNT IN THE INDICTMENT AND ...