On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-0199.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
After his motion to suppress was denied, defendant was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance (CDS), specifically cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)
(3) (count two); and third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). The trial judge merged counts one and two with count three and sentenced defendant to an extended term of eight years of imprisonment, with a four-year period of parole ineligibility. The court entered a judgment of conviction dated July 23, 2010.
Defendant appeals and raises the following arguments for our consideration:
BECAUSE LAW ENFORCEMENT SEIZED PHYSICAL EVIDENCE AS A RESULT OF APPREHENDING [DEFENDANT] IN A RESIDENCE WITHOUT PROBABLE CAUSE TO BELIEVE THAT HE HAD COMMITTED A SERIOUS CRIME, IN VIOLATION OF THE N.J. CONST. ART. I § 7 AND U.S. CONST. AMEND. IV, THE EVIDENCE MUST BE SUPPRESSED (RAISED BELOW).
OFFICER ROSA'S OPINION TESTIMONY THAT HE OBSERVED A POSSIBLE NARCOTICS TRANSACTION AND THE OMISSION OF ANY EXPERT INSTRUCTION CONCERNING THAT TESTIMONY DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).
THE OMISSION OF A CRITICAL PART OF THE EXPERT INSTRUCTION ON HOW THE OPINION TESTIMONY OF DETECTIVE HOLLOWAY SHOULD BE WEIGHED DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).
THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND APPEARED TO TAKE INTO ACCOUNT IMPROPER, INACCURATE, OR UNSUBSTANTIATED INFORMATION IN SENTENCING [DEFENDANT] TO AN EIGHT YEAR SENTENCE WITH A FOUR YEAR PERIOD OF PAROLE INELIGIBILITY.
For the reasons that follow, we reject these ...