NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 12, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1213.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Appellant filed pro se supplemental briefs.
Before Judges Alvarez and Waugh.
Tried before a jury, defendant Amean Ellis was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and second-degree possession with intent to distribute a controlled dangerous substance in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). At the sentence hearing on June 7, 2010, the trial court granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), merged defendant's second and third-degree convictions, and imposed a term of fifteen years imprisonment, subject to seven and one-half years of parole ineligibility, along with appropriate fines and penalties.
Defendant now appeals, and we affirm his convictions. We remand the matter for further consideration of the sentence, however, because of the State's failure to file the extended-term motion within fourteen days of the return of the verdict as required by Rule 3:21-4(e), and because the record is unclear as to the predicate offenses.
We glean the following facts from the trial record. The Woodbridge Police Department received a call regarding a disturbance at a motel at approximately 1:50 a.m. on April 22, 2008. When Officer Benjamin Stevenson arrived, he met defendant, who appeared to have been "severely beaten, " in the motel lobby. Defendant explained to Stevenson that when he answered a knock at his door, two men forced their way in, punched and kicked him, and stole his wallet and cell phone. Defendant walked back to his room, accompanied by Stevenson, where the officers observed furniture "strewn about" and blood splattered on one of the beds. After defendant was taken out of his room to be transported to a nearby hospital, Stevenson noticed, on a dresser, fourteen small plastic bags containing a white powdery substance he believed was cocaine; he also saw marijuana sitting on a candy wrapper on a table. Stevenson seized the drugs and defendant was later arrested.
At approximately 10:30 p.m. that same date, Officer Dean Janowski was dispatched to that same motel, where the night manager escorted him to defendant's room and turned over a shopping bag filled with items that had been found there: two scales, three boxes of plastic sandwich bags, two pairs of scissors, and several individually packaged bags of cocaine. In total, there were thirty bags, each containing approximately a gram of cocaine, and two additional bags each containing approximately half a gram of cocaine.
During the trial, the State qualified as its narcotics expert Investigator Blaise DiPierro of the Middlesex County Prosecutor's Office. He testified that the fourteen bags of cocaine Stevenson seized each held close to a gram of cocaine and were "corner cut." The thirty-two bags Janowski retrieved were also corner cut. DiPierro opined that the number of bags, greater than would be possessed for individual drug use, were consistent with distribution.
Defendant, who has a prior criminal history, testified that he lived in Georgia with his family and had been staying in New Jersey to visit with relatives in the area. Sometime in the evening of April 21, 2008, he smoked a "Philly blunt" cigar filled with marijuana. He invited a woman named Tiffany, last name unknown, whom he had met at a convenience store on a previous trip to New Jersey, to spend the evening. After she arrived, she and defendant talked and drank beer until she received a phone call and went outside to her car. Shortly after her return, he heard a knock and a voice saying "police." When defendant opened the door, it slammed into his face. He blacked out, and when he recovered consciousness, found himself alone, on the floor, and bleeding.
Defendant went down to the motel lobby and asked for assistance. He agreed that when Stevenson arrived, he walked him back to his room. Defendant insisted that only the marijuana belonged to him and denied using cocaine. He claimed that the paraphernalia and drugs were not his, and could not explain their presence in the motel room. He ...