On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2642.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012 Before Judges Payne, Reisner and Hayden.
Defendant, Timothy D. Brown, appeals from his conviction by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute it within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four); third-degree distribution of heroin, N.J.S.A. 2C:35-5b(3) (count five); third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count six); and second-degree distribution of heroin within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count seven).
Defendant also appeals from his sentence of five years in custody with a three-year period of parole ineligibility on count three (possession with the intent to distribute within 1,000 feet of school property); a concurrent sentence of ten years with a five-year period of parole ineligibility on count four (possession with the intent to distribute within 500 feet of public property); a concurrent sentence of five years with a three-year period of parole ineligibility on count six (distribution within 1,000 feet of school property); and a concurrent extended sentence of twelve years with a six-year period of parole ineligibility on count seven (distribution within 500 feet of public property).
On appeal, defendant raises the following issues through counsel:
Point One THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY AS TO THE LESSER INCLUDED OFFENSE OF WANDERING OR REMAINING IN A PUBLIC PLACE WITH PURPOSE OF OBTAINING OR SELLLING CONTROLLED SUBSTANCES WAS REVERSIBLE ERROR. Point Two DETECTIVE BENNETT'S OPINION TESTIMONY USURPED THE ROLE OF THE JURY.
Point Three DETECTIVE MADERA IMPROPERLY BOLSTERED THE CREDIBILITY OF DETECTIVE BENNETT.
Point Four DEFENDANT RECEIVED AN IMPROPER AND EXCESSIVE SENTENCE.
In a pro se brief, defendant raises the following additional argument:
THE TRIAL WAS TAINTED BY UNFAIR COMMENTS MADE BY THE PROSECUTOR TO THE JURY, WARRANTING VACATION OF THE VERDICTS OBTAINED.
We affirm defendant's convictions and remand for correction of his judgment of conviction.
At the trial in this matter, Detective Tracy Bennett, a member of the Essex County Sheriff's Office Bureau of Narcotics, testified that, on July 9, 2009 at 9:50 a.m., he was working undercover in the area of 16th Avenue and South 13th Street in Newark, an area known for narcotics activity. He was in an unmarked vehicle, and four other officers were present in the area in two unmarked vehicles as back-up. While conducting surveillance in that area, Detective Bennett observed defendant standing on the southeast corner of the intersection of the two streets. A man in his early sixties or late fifties, later identified as sixty-four year old Ronald Jones, approached him, and the two engaged in a brief conversation. Defendant then went to the rear of a particular residence on South 13th Street, reached under the vinyl siding, and retrieved an item - conduct that Detective Bennett observed after moving his vehicle to a better vantage point. After retrieving the item, defendant returned to the waiting Jones, where he exchanged the item for paper currency. Jones then put the object in his left pants pocket, while defendant placed the currency in his right pocket.
Following the exchange, Detective Bennett advised the backup units of defendant's and Jones's descriptions, and the directions in which they were walking. One of the units detained Jones, who was found to have four glassine envelopes of heroin stamped "boost" in his left pants pocket. Defendant was detained by the other unit. A search incident to defendant's arrest revealed a small amount of currency but no drugs. However, investigation of the location under the vinyl siding disclosed two magazine wraps containing ninety-two envelopes of heroin, seventy-two of which were marked "boost." A weapon with a magazine containing nine rounds was also recovered from the location.
The detective stated that the location at which the exchange occurred was across the street from a baseball field, located within a public park. It was also within 1,000 feet of Harriet Tubman School and within 500 feet of a public housing complex known as West Side Village.
At the conclusion of the trial, defendant was found guilty of the drug charges that we have enumerated. He was found not guilty of charges of unlawful possession of a handgun and possession of a handgun in connection with a narcotics offense. A charge of receipt of stolen property consisting of the gun was dismissed by the State. Following sentencing, this appeal was filed.
On appeal, defendant first argues that the trial court erred in denying defense counsel's request that the judge charge, as a lesser-included offense of the crime of possession of heroin, the disorderly persons offense of wandering or remaining in a public place with the purpose of obtaining or selling controlled dangerous substances, N.J.S.A. 2C:33-2.1. We disagree.
At the charge conference, defense counsel argued that the jury could find the testimony of Detective Bennett implicating defendant as a drug dealer to have been incredible. If it did so, it could also find that when defendant and Jones met, defendant intended to purchase heroin from Jones, but was deterred from doing so by the presence of the undercover officer. As a consequence, no sale took place, and the two actors simply walked away. Such a scenario was supported by the fact that, when Jones was detained, he had four folds of heroin on his person, as well as $101, whereas defendant had no drugs, and only possessed $25 in cash. If the jury believed this scenario, it could conclude that defendant wandered into the area with the purpose to unlawfully obtain heroin from Jones, and by doing so, he violated N.J.S.A. 2C:33-2.1b(1).
The determination of whether an offense is included within an offense charged is not open-ended. N.J.S.A. 2C:1-8e explains that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." Thus, whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a rational basis in the evidence to support a charge on that included offense. [State v. Thomas, 187 N.J. 119, 131 (2006).] Defendant concedes that: "The elements of the charged drug counts and the requested wandering count are neither identical nor so interconnected that proof of possession necessarily entails proof of the requested disorderly persons offense." Nonetheless, defendant contends that the "the evidence reveals a rational basis for the jury to acquit of the greater and convict of the lesser offense."
We find no support for defendant's contention. The statutory provision that defendant claims is applicable is N.J.S.A. 2C:33-2.1b(1), which states:
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance . . . and (2) engages in conduct that, under the circumstances, ...