On appeal from 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
A jury found defendant Nicholas Dorch guilty of conspiracy to commit second-degree possession of a controlled dangerous substance (CDS), specifically cocaine, N.J.S.A. 2C:5-2, 2C:35- 10a(1); two counts of third-degree possession of a CDS, one for cocaine and one for heroin, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of a CDS with intent to distribute, one for cocaine and one for heroin, N.J.S.A. 2C:35-5a(1); two counts of third-degree possession of a CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, one for cocaine and one for heroin; and two counts of second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1, one for cocaine and one for heroin. He was sentenced to eight years with four years of parole ineligibility.
At approximately 10:35 p.m. on an October evening in 2008, Detectives Ras Sheppard and Youletta Rainey, along with other officers of the Newark Police Department, were conducting a surveillance near 478 South 16th Street. The area in question is within 500 feet of a public housing project and 1000 feet of a public school. They saw a man wearing headphones approach Paul Johnson, a co-defendant tried with defendant. Johnson was on the porch of a residence, and he appeared to be counting money. The two men spoke briefly and gestured during that conversation, but neither detective heard what they said. They did, however, see defendant pacing in front of the porch. When the conversation ended, defendant walked to an alley two doors away, moved a broken door that was leaning against a wall away from the building, reached behind the door and retrieved something. Defendant than walked back and handed the man with the headphones some "items." The detectives did not see what the items were, but they saw the man with the headphones leave after receiving them.
After moving the unmarked car to a different location, the detectives returned and arrested defendant and Johnson. Detective Rainey went to the alley and moved the broken door, exposing a bag that contained six white paper folds and forty plastic Ziplock bags containing cocaine. The bags had various "stamps" on them: twenty-one brown Hershey Kisses, thirteen red diamonds, and six yellow and black Batman symbols. Three glass vials with yellow caps were also recovered along with fifty-two glassine envelopes, two of which were stamped "Plainfield" and "Green Heat." The other fifty envelopes also bore stamps - "Purple Mother" and "Purple." The contents of the envelopes were field tested and found positive for heroin.
Defendant and Johnson were also searched. Defendant had $540: one $100 bill, two $50 bills, and seventeen $20 bills. Johnson had $608: thirty $20 bills, one $5 bill, and three $1 bills.
Defendant raises the following points for our consideration on appeal:
I. DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER LAY OPINION. (Not Raised Below).
II. THE TESTIMONY REGARDING THE AMOUNT OF MONEY SEIZED FROM THE DEFENDANTS WAS IMPROPERLY ADMITTED.
III. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.
IV. THE PROSECUTOR'S COMMENTS IN HIS SUMMATION CONSTITUTED MISCONDUCT WHICH DENIED ...