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State v. Feliciano

Superior Court of New Jersey, Appellate Division

August 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JORGE FELICIANO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 29, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-10-2749.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, on the brief).

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).

Before Judges Graves and Espinosa.

PER CURIAM

In a four-count indictment, defendant Jorge Feliciano was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35:7.1 (count four); and a disorderly persons offense, possession of drug paraphernalia, N.J.S.A. 2C:36-2. Following a jury trial, defendant was acquitted of counts two, three, and four (the distribution charges), but he was convicted of count one (possession). The court found defendant not guilty of the disorderly persons offense and sentenced him to a three-year period of probation with sixty hours of community service. Mandatory penalties and assessments were also imposed.

Defendant presents the following argument on appeal:

POINT I
THE OFFICERS' OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN, [1] (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARS. 1, 9, 10). (Partially Raised Below).

We conclude from our examination of the record that the officers' opinion testimony was harmless, and we affirm.

The State presented testimony from Timothy Carey, an agent with the Department of Homeland Security (DHS), who was involved in surveillance of a home on Highland Avenue in Newark on August 26, and 27, 2008. The home appeared to be a single family residence, but Carey later learned "there were multiple people in multiple apartments" residing at the home. Carey testified that on August 26, 2008, while conducting surveillance, he saw "people coming and going" from the home:

[W]e did see three younger Hispanic males occasionally come in and out of the residence [and] we did not know who they were at the time. Occasionally, people would drive into the driveway and they would meet people in the driveway. Occasionally, sometimes [they] would go in the front door. Sometimes . . . the males would come ...

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