On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-01-0086 and 08-09-2696.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011
Before Judges Graves and Koblitz.
Defendant Ismael Z. Maldonado appeals from two judgments of conviction entered on November 18, 2008. Defendant was found guilty after a jury trial of all three counts of Camden Indictment No. 08-01-0086, charging third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution and/or possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2) (count two); and third-degree distribution and/or possession with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three).
A second indictment, No. 08-09-2696, charged defendant with first-degree carjacking, N.J.S.A. 2C:15-2 (count one); and second-degree robbery, N.J.S.A. 2C:15-1 (count two). Defendant pled guilty to count two of the second indictment. In exchange, the State dismissed count one and agreed to recommend a seven-year term of imprisonment to be served consecutively to the sentence on the other indictment, with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Under the terms of the plea agreement, defendant also waived his right to appeal the conviction.
At sentencing, the trial judge merged counts one and two with count three of the first indictment and sentenced defendant to a four-year term of imprisonment with three years of parole ineligibility. Defendant was also ordered to submit a DNA sample, forfeit $205, and pay $1205 in mandatory fines and penalties, and his driver's license was suspended for six months.
In conformity with the plea agreement on the second indictment, defendant was sentenced to a consecutive term of seven years in prison, with eighty-five percent parole ineligibility under NERA, along with $175 in mandatory fines and penalties. Defendant appeals, alleging two trial errors and an excessive sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The trial testimony revealed the following facts regarding the first indictment. At approximately 7:00 a.m. on September 14, 2007, Investigator Mark English, an eight-year veteran of the Camden County Prosecutor's Office assigned to the narcotics task force, was performing undercover surveillance in Camden, New Jersey, within 1000 feet of Pyne Poynt Middle School. He and his partner, Investigator Matt McKeown, were parked in an undercover vehicle on a bright morning with an unobstructed view of defendant from approximately eight to ten yards away.
From that location, English saw defendant exchange a plastic "baggie" for cash with another person, who then left the area. English and McKeown approached defendant and began to search him when eight bags of heroin fell from his pants. The officers also found $205 in defendant's pocket.
At a pretrial hearing on July 28, 2008, defendant moved to exclude the State's use in cross-examination of his 2007 Pennsylvania conviction for unlawful possession of a firearm without a license, for which he was serving a four-year term of probation.
In response to defendant's application, the judge conducted a Sands*fn1 hearing. Defense counsel argued the conviction was extremely prejudicial because a jury might conclude that if defendant was guilty of possessing a handgun without a license, he might be more likely to sell illegal drugs. Additionally, counsel asserted that the conviction was not probative for impeachment purposes because the offense did not inherently involve dishonesty.
Noting that the Pennsylvania conviction was recent, dissimilar to the pending charges and that "an appropriate instruction would be given" to the jury, the judge denied defendant's motion, permitting the State to "use evidence of that conviction to impeach the credibility or believability of the defendant [should he decide to testify]."
The lone State's witness, Investigator Mark English, testified that he had observed defendant sell drugs from a surveillance point on the "800 block of North Eighth Street" in Camden. He and his partner viewed the events while parked in a vehicle at an "undisclosed location" with an "unobstructed view" of defendant. At a sidebar conference following the prosecutor's direct examination, defense counsel informed the trial judge that she was "having a little bit of an issue with this undisclosed surveillance location." Over the prosecutor's objection that the motion should have been made before trial, defense counsel ...