On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0409.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
In this appeal, defendant seeks reversal of his conviction of drug offenses based on, among other things, his contentions that the evidence was insufficient to support the verdict and that the prosecutor made incorrect statements to the jury as to what the evidence reflected. We find no merit in these and defendant's other arguments and affirm, although a remand is necessary to correct the judgment of conviction.
Defendant was indicted and charged with: conspiracy to commit second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:5-2; two counts of third-degree CDS possession, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); two counts of third-degree CDS possession with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and two counts of second-degree CDS possession with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Co-defendant Nicholas Dorch was also indicted and charged with the same offenses.
Defendant and Dorch were tried together over the course of three days. The evidence adduced at trial came from only witnesses called by the State, namely, the officers involved in the arrest and subsequent search, a chemist, who identified the seized substances as cocaine and heroin, and a city surveyor, who testified that the area where the events in question occurred was within 1000 feet of a school and within 500 feet of a public housing facility.
The evidence provided by these witnesses revealed that, on October 12, 2008, at approximately 10:35 p.m., a police detective of seventeen years experience was conducting surveillance on South 16th Street in Newark. The detective observed an unidentified male wearing headphones approach defendant, who was standing in front of his home, counting money. Dorch was observed "pacing up and down" in the vicinity. Words were exchanged between defendant and the man wearing headphones, and they "gesture[d] to each other." The detective could not hear what was said. Dorch then walked into an alleyway two houses down from defendant's location, where he was observed reaching behind and picking up items from behind a discarded door lying in the alley. Dorch returned and handed the retrieved items to the man with the headphones, who then walked away.
Following these observations, police arrested defendant and Dorch. Officers searched the area behind the discarded door in the nearby alleyway and recovered numerous bags and folds of cocaine and heroin. Defendant was found to be in possession of $608 and Dorch was in possession of $540.
After the State rested, defendant unsuccessfully moved for a judgment of acquittal. The jury later found defendant and Dorch guilty of all charged offenses.*fn1 Prior to sentencing, defendant filed a motion for a new trial, which was also denied.
Following appropriate mergers, the trial judge sentenced defendant to an eight-year prison term on the second-degree public-housing convictions and a five-year prison term on the third-degree school-zone convictions. On the latter, the judge imposed four-year periods of parole ineligibility.*fn2
Defendant appeals, arguing:
I. BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE THE CHARGES ON THE INDICTMENT BEYOND A REASONABLE DOUBT, THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT ...