On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-04-00358.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2012
Before Judges Nugent and Haas.
Tried before a jury on a four-count indictment, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third-degree possession of CDS, cocaine, with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); and fourth-degree possession of radio to intercept emergency communications while committing or attempting to commit a crime, N.J.S.A. 2C:33-22 (count four). The trial judge merged count one into count two and sentenced defendant to four years in prison on count two; to a concurrent four-year term, with a three-year period of parole ineligibility on count three; and to a concurrent eighteen-month term on count four. The judge also ordered defendant to pay mandatory fines and penalties.
On appeal, defendant raises the following contentions:
OFFICER DUFFIELD'S OPINION TESTIMONY THAT ITEMS FOUND DURING THE SEARCH OF THE HOME ARE COMMONLY USED IN NARCOTICS DISTRIBUTION SHOULD NOT HAVE BEEN ADMITTED SINCE DUFFIELD WAS NEVER QUALIFIED AS AN EXPERT AND, ABSENT AN INSTRUCTION CONCERNING EXPERT TESTIMONY, HIS TESTIMONY DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED MR. OSBY OF DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10). (RAISED BELOW).
THE PROSECUTOR'S STATEMENTS DURING SUMMATION COMMENTED UPON FACTS NOT IN EVIDENCE, THEREBY DEPRIVING MR. OSBY OF DUE PROCESS AND A FAIR TRIAL (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10 (NOT RAISED BELOW).
THE TRIAL COURT'S RULING THAT DEFENDANT COULD NOT TESTIFY AS TO RONALD GROSS' NARCOTICS ACTIVITIES PREVENTED MR. OSBY FROM PRESENTING HIS DEFENSE AND, THEREBY, DENIED HIM A FAIR TRIAL. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10). (RAISED BELOW).
THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING MR. OSBY TO A FOUR YEAR SENTENCE WITH A THREE YEAR PERIOD OF PAROLE INELIGIBILITY.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions.
The State developed the following proofs at trial. In the afternoon of February 6, 2009, Detective Harold Duffield of the Millville Police Department was conducting a drug surveillance operation of a residence on Buck Street in Millville. The residence was across the street from a parochial school. Duffield was positioned about 150 feet away from the residence and, with the use of binoculars, he had a clear view of the residence. He had already obtained a search warrant for the residence.
At 2:09 p.m., Duffield observed a man, later identified as defendant, exit the residence onto the porch. Defendant made a hand-to-hand exchange of items with another man, who had approached the porch and left after the exchange. Over the next ninety minutes, Duffield observed three additional hand-to-hand exchanges between defendant and individuals who came to the porch and then immediately left. Duffield observed one of the individuals hand "currency" to defendant.
After the fourth exchange, Duffield notified his supervisors of his observations. Shortly thereafter, about twenty New Jersey State Troopers arrived to "make sure the residence was safe" before Duffield entered the residence. Trooper John Sheeran went into the kitchen and observed cocaine and drug paraphernalia in plain view on the table and countertop. Defendant and four other individuals, defendant's fiancee June Rogers, and her two sons and a nephew, were present in the home.
After the residence was secured, Duffield entered the kitchen and saw two clear plastic bags of a white, rock-like substance that later tested positive for cocaine. The largest piece of cocaine weighed 7.144 grams. Duffield also found a boX of plastic sandwich bags, a digital scale and a razor blade. There appeared to be cocaine residue on the blade. Inside a cigar box on the kitchen counter, Duffield found another scale, more cocaine, a marijuana grinder and additional razor blades. Finally, Duffield found a scanner on the kitchen table and a second scanner on the dining room hutch. The scanner in the dining room was on and was tuned into the Millville Police radio frequency at the time the police entered the residence.
Duffield brought defendant into the kitchen to speak to him. Duffield gave defendant his Miranda *fn1 warnings. Defendant told Duffield that "all the drugs in the house were his and that he did not want [Rogers] to get in any trouble." A search of defendant's person revealed a small bag of marijuana and $340 in cash.
At 5:25 p.m., defendant was taken to the police station and he gave a taped interview. He again admitted that all of the drugs in the residence were his and that he sold cocaine for profit. The marijuana, however, was for his personal use. Defendant provided precise estimates of how much cocaine was in the home and he accurately described what the police would find in the cigar box. He made these admissions prior to Duffield telling him what the police had found.
Defendant explained that "the plastic baggies are actually there for me to dispense the drugs you know and put them in things when I sell them actually," and that the scale was used "[t]o actually weigh it." He further explained that the razor blades were "[t]o cut it." Defendant told Duffield that he purchased cocaine for resale for approximately $1,100 an ounce and that he sold it for twice that amount. The taped interview was played for the jury at trial.
Testifying for the defense, Rogers asserted that defendant had been going out on the porch during the day to smoke, because he was not allowed to smoke inside the house. She did not see him speak to anyone outside, except for a UPS delivery person. Rogers and her two sons testified that they had never seen the cocaine, scale or other paraphernalia before the police arrived at the residence. Rogers claimed that the marijuana found in the house belonged to her nephew; the baggies found in the kitchen were used by her to hold snacks; the $340 found in defendant's pants pocket was the remainder of a tax refund she had previously given him; and she purchased the scanner the day before the raid so she could monitor the activities of her son, who had previously been arrested.
During his testimony, defendant claimed he lied to Duffield in his statement so his family members would not be arrested.
He alleged he had obtained the information about how much cocaine costs from his cousin, Ronald Gross, who he had observed selling cocaine on previous occasions. He also asserted that Gross had been in the residence earlier in the day, but that he had left an hour or two before the raid. Defendant claimed that he did not see the cocaine in the kitchen before the ...