On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-01-0203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Payne, Simonelli and Hayden.
Following three sales of crack cocaine to an undercover federal special agent, defendant was charged with three counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), three counts of second-degree possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5b(2), three counts of second-degree distribution of cocaine, N.J.S.A. 2C:35-5b(2), and one count of first-degree maintenance of a drug production facility, N.J.S.A. 2C:35-4. Defendant was convicted by a jury on all charges and sentenced to an extended term of imprisonment of thirty years with a fifteen-year period of parole ineligibility on the first-degree conviction, and to a concurrent aggregate term of ten years with a five-year period of parole ineligibility on the remaining non-merged convictions. The sentence was imposed consecutively to the fourteen-year sentence with a sixty-nine-month period of parole ineligibility that defendant was presently serving for another drug conviction. Defendant has appealed.
On appeal, defendant makes the following arguments:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE PROSECUTOR'S EXERCISE OF THE ONLY PEREMPTORY CHALLENGE THE STATE EXERCISED TO EXCLUDE THE SOLE BLACK JUROR DURING JURY SELECTION BASED ON THE UNCONSTITUTIONALLY IMPERMISSIBLE GROUNDS OF PRESUMED RACE BIAS OVER DEFENSE COUNSEL'S TIMELY OBJECTIONS, THEREBY PREJUDICALLY AFFECTING APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND UNFAIR TRIAL BY PRODUCING AN UNJUST RESULT.
POINT II: THE TRIAL COURT ERRED IN PERMITTING DEA SPECIAL AGENT GREGORY HILTON TO TESTIFY AS AN EXPERT WITNESS ON THE "MAINTENANCE OF A PRODUCTION FACILITY" FOR CRACK COCAINE AND HIS TESTIMONY WAS INSUFFICIENT TO PERMIT THE JURY TO CONCLUDE THAT APPELLANT WAS GUILTY OF "MAINTAINING A PRODUCTION FACILITY" OF CRACK COCAINE IN VIOLATION OF N.J.S.A. 2C:35-4.
POINT III: APPELLANT CANNOT BE SIMULTANEOUSLY PROSECUTED AND CONVICTED DURING TRIAL OF N.J.S.A. 2C:35-4 AND N.J.S.A. 2C:35-5 WHICH BOTH PROSCRIBE PACKAGING AND REPACKAGING OF CRACK COCAINE EVEN THOUGH N.J.S.A. 2C:35-5 IS NOT A LESSER INCLUDED OFFENSE OF N.J.S.A. 2C:35-4 WHEN NEITHER THE UNITED STATES SUPREME COURT NOR THE NEW JERSEY SUPREME COURT HAS HELD THAT SUCH SIMULTANEOUS PROSECUTIONS ARE CONSTITUTIONAL, THEREBY PREJUDICIALLY AFFECTING THE SUBSTANTIAL RIGHTS OF APPELLANT TO A FAIR TRIAL BY PRODUCING AN UNJUST RESULT.
POINT IV: THE ORIGINAL JURISDICTION FOR PROSECUTION OF THIS CASE RESTS WITHIN THE FEDERAL ARENA, SPECIFICALLY THE DISTRICT OF NEW JERSEY'S TRIAL COURT, AND THE DEFENSE COUNSEL'S FAILURE TO REMOVE THIS CASE FROM STATE TO FEDERAL COURT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT V: THE TRIAL COURT SENTENCED DEFENDANT TO AN EXCESSIVE SENTENCE BY THE IMPOSITION OF A THIRTY YEAR MINIMUM WITH A FIFTEEN YEAR PAROLE BAR TO RUN CONSECUTIVE WITH DEFENDANT'S CURRENT SENTENCE.
The trial record disclosed that in 2003, the Federal Drug Enforcement Administration (DEA) assigned Special Agent Gregory Hilton to work as an undercover agent with a DEA Mobile Enforcement Team and the Monmouth County Prosecutor's Office's Narcotics Unit in efforts to prosecute drug dealers in the Monmouth County area, particularly, Asbury Park. Hilton testified at trial that, on December 11, 2003, March 11, 2004 and April 1, 2004, he purchased crack cocaine from defendant while posing as a friend of a confidential informant whom defendant had known since childhood.
On the first occasion, Hilton purchased thirty grams of crack cocaine from defendant for $750 while defendant was standing on a stair landing at the rear of defendant's apartment building. On the next occasion, Hilton entered defendant's apartment and purchased sixty-one to -two grams of crack cocaine for $1800. While doing so, he observed defendant retrieve a block of cocaine from his freezer, cut off a piece, weigh it on a digital scale, and package it in plastic. Hilton also observed a glass pot on the stove containing recently boiling water with white residue floating on top, and a large white chunk of what appeared to be crack cocaine drying on a napkin nearby. He testified that what he observed was definitely similar to his prior observations of cocaine being cooked and dried.
Hilton stated that when defendant opened the cabinet to get the scale, there was nothing else in the cabinet. When he opened the freezer to obtain the cocaine, there was nothing else in the freezer. In fact, there was nothing else but the objects that Hilton mentioned present in the kitchen. In the living room area, there was only a mattress on the floor with a sheet over it and a small table with a little radio on it.
On the third occasion, Hilton again entered defendant's apartment and bought for $1800 sixty grams of crack cocaine that defendant obtained, pre-packaged, from a larger bag of crack cocaine stored in his freezer and then weighed before making the sale. Following the sale, defendant placed the $1800 that Hilton had given him in the cabinet from which he had retrieved the scale.
Defendant did not testify on his own behalf, but offered as a character witness the superintendent of his apartment building, Carmen Gonzalez, who testified that defendant was a "good tenant." Additionally, she testified that ...