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State v. Perez

Superior Court of New Jersey, Appellate Division

May 14, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JENNIFER PEREZ, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-05-0846.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, and Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief).

Before Judges Grall and Koblitz.

PER CURIAM

Defendant Jennifer Perez appeals from the November 20, 2009 judgment of conviction of distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-5(a) and 7.1, for which she received an extended term[1] of eight years with four years of parole ineligibility. Defendant argues that the judge improperly allowed lay opinion testimony and admitted evidence of prior bad acts, which deprived her of a fair trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant and a co-defendant were charged in Middlesex County Indictment No. 08-05-0846 with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one). Defendant was charged alone in that indictment with third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two), third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and 7 (count three), and second-degree distribution of cocaine within 500 feet of public property (count four). After defendant was convicted of all counts, the judge merged counts one, two and three into count four.

Defendant did not testify nor did she call any witnesses. The State's witnesses provided the following facts. At approximately 4:45 p.m. on April 16, 2008, New Brunswick Police Lieutenant Paul Schuster set up an undercover surveillance team in a downtown high drug area. Lt. Schuster had been in the department for thirty-six years, and in the narcotics squad since 1991. Lt. Schuster, who was using binoculars, observed what he believed to be two drug transactions between defendant and two pedestrians, during which defendant handed them a light-colored object from her mouth in exchange for cash. Defendant then walked to a pay phone across the street from Lt. Schuster's location.

Shortly after 5 p.m., defendant removed a small bag of suspected cocaine from her mouth and laid it under the pay phone. A driver picked up the bag and gave defendant cash and drove away. Back-up police cars lost the car in traffic.

Several minutes later the co-defendant approached defendant, who took another small bag from her mouth and put it under the pay phone. The co-defendant gave defendant cash and put the small bag in his right pants pocket. The back-up team chased the co-defendant who reached into his right pocket, grabbing the small bag, which fell to the street and was retrieved by the officers.

New Brunswick Police Officer Anthony Mark Abode approached defendant to arrest her and saw her swallow, as if swallowing a piece of gum. Defendant had more than $1000 in her possession. The small baggie from the co-defendant's pocket contained cocaine and DNA[2] on the baggie matched defendant's DNA. The incident occurred within 1000 feet of two ...


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