On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Waugh, and St. John.
Defendant Michael T. Powell appeals from his conviction for third-degree possession of a controlled dangerous substance, cocaine, contrary N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, in the amount of one-half ounce or more, but less than five ounces, contrary to N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count three). He also appeals from his sentence to an extended term of incarceration for fifteen years with a seven-and-one-half year period of parole ineligibility. We affirm Powell's conviction and base sentence, but remand for resentencing so that the required period of parole ineligibility can be determined in accordance with this opinion.
We discern the following facts and procedural history from the record on appeal.
On the night of November 5, 2008, Newark Police Detective Horatio Lorenzo and four other officers set up a surveillance of an apartment building on 13th Avenue in Newark, which was within 1000 feet of school property. They were acting in response to citizen complaints that drug dealing was taking place at that location. They understood that some of the apartments in the building were occupied, while others were not, and that squatters frequented the vacant portions of the premises.
The officers monitored the building from unmarked police vehicles parked across the street. Through the use of night vision binoculars, Lorenzo observed someone knock on the front door of the building. When the front door opened slightly, the person handed what appeared to be money to someone else inside the building, who then closed the door. The man inside the building was subsequently identified as Powell. "A few seconds later," Powell opened the door and handed something to the person standing outside of the building, who then left the area and was never located.
Because Lorenzo concluded he had witnessed a drug transaction, Lorenzo and the other officers walked to the building and "banged" on the front door. When Powell opened the door slightly, Officer Louis Gueddes wedged his flashlight in the doorway to prevent Powell from closing the door. The officers then identified themselves and pushed their way into the vestibule of the building.
As the officers entered, Powell ran up a flight of stairs and through a door to another floor of the building. While running up the stairs, Powell discarded a plastic bag, which was later determined to contain glass vials of cocaine. According to Lorenzo, the discarded bag contained approximately twenty glass vials.
After he reached the second floor, Powell ran past three or four apartment doors before entering a vacant apartment. He tried to shut the apartment door, but the officers pushed their way into the apartment and arrested him. No one else was in the hallway or apartment when the officers apprehended Powell.
Powell was found to have $114 in cash in his possession when arrested. In the apartment, the police found "numerous" bags containing glass vials of cocaine and ninety-two glassine envelopes containing heroin.
The glass vials recovered from the bag discarded on the steps and the vials recovered from the vacant apartment were inventoried together, rather than separately. A total of 723 glass vials of cocaine were recovered. They contained 26.8153 grams of cocaine, according to the laboratory report.
Powell was indicted on February 25, 2009. In addition to the three counts for which he was convicted, Powell was also charged with third-degree possession of a controlled dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count four); third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (count five); and third-degree possession of a controlled dangerous substance, heroin, with intent to distribute, within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count six).
Powell was tried before a jury over five days between March 24 and April 1, 2010. The jury found him guilty on the counts related to possession of cocaine, but not guilty on the counts related to possession of heroin. On June 7, the trial judge merged counts one and three into count two and imposed the fifteen-year sentence, half of which he made subject to a parole disqualifier. This appeal followed.
Powell raises the following issues on appeal:
POINT ONE: CONFUSING JURY INSTRUCTIONS AND A MISLEADING VERDICT SHEET DENIED DEFENDANT A FAIR TRIAL (Not Raised Below)
POINT TWO: THE ADMISSION OF HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL (Not Raised Below)
POINT THREE: THE TRIAL COURT'S JURY INSTRUCTION TO THE JURY ON THE DOCTRINE OF FLIGHT WAS PLAIN ERROR (Not Raised Below)
POINT FOUR: DEFENDANT RECEIVED AN EXCESSIVE SENTENCE Because the first three issues are being raised for the first time on appeal, we apply the plain error standard of appellate review. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). As related to a jury charge, plain error has been defined as "legal impropriety . . . prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
In his first point, Powell argues that the jury was confused by the jury instructions and verdict sheet with respect to the issue of the amount of cocaine in his possession. He contends that the judge should have distinguished between actual possession, the cocaine dropped on the stairs, and constructive possession,*fn1 the cocaine and heroin found in the apartment. The distinction is important, he argues, because the jury's ...