Submitted: December 16, 2013.
Approved for Publication May 9, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-12-00629.
Joseph E. Krakora, Public Defender, attorney for appellant ( John Douard, Assistant Deputy Public Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent ( Gregory G. Waterston, Assistant Prosecutor, on the brief).
Before Judges YANNOTTI, ASHRAFI and LEONE. The opinion of the court was delivered by LEONE, J.S.C. (temporarily assigned).
[435 N.J.Super. 502] OPINION
LEONE, J.S.C. (temporarily assigned).
Defendant Kashif K. Patterson appeals from his judgment of conviction for drug offenses. We affirm his convictions despite [435 N.J.Super. 503] claims of prosecutorial misconduct. However, we hold that N.J.S.A. 2C:43-6(f) cannot be used to impose an extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. Thus, we remand for the vacating of defendant's sentences and resentencing.
On September 3, 2009, law enforcement officers executed a search warrant at a residence. They surprised defendant and co-defendants George E. Roane, III and Amir R. Cooke. The three defendants were around a table in the living room. On the table there was a cellophane bag containing ninety-two baggies filled with crack cocaine. On the floor next to the table, in plain sight of defendants, there was a cellophane bag containing eighty baggies filled with crack, and a clear bag containing crushed oxycodone pills. In the bedroom and kitchen, the police found eight glass vials containing marijuana, hundreds of empty vials, six oxycodone pills, and a digital scale.
Detective Patrick Vengenock found in defendant's pocket $1,175 in cash, including thirty-seven $20 bills and thirteen $10 bills. Roane had $192 in his pockets. In Cooke's pockets, police found one vial of marijuana and one $10 baggie of crack.
Defendant told Vengenock that the cocaine was not his. Roane said he had just
arrived. Cooke claimed all 172 baggies were his and for his personal consumption.
The indictment charged all three defendants with six counts. Count one charged third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); count two charged third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); count three charged second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5(a)(1) and -7.1; count four charged third-degree [435 N.J.Super. 504] possession of oxycodone, N.J.S.A. 2C:35-10(a)(1); count five charged fourth-degree possession of less than an ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12); and count six charged third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5(a) and -7.1.
Cooke pled guilty to count two, and defendant and Roane went to trial together. The State called Detective Vengenock, a searching officer, and a police drug expert. The expert testified that the 172 baggies of crack were packaged and intended for distribution at $10 per baggie. The expert also testified that narcotics distributors frequently have large sums of cash on their person, predominantly in $10 and $20 bills.
Roane and his mother testified to support his claims that he had just arrived. Defendant presented no evidence.
The jury convicted defendant of counts one, two, three, and four, and acquitted him of counts five and six. The jury convicted Roane of counts one and four, and acquitted him of the remaining counts.
At defendant's October 8, 2010 sentencing, the court merged count one into counts two and three. On count three, charging possession of cocaine with intent to distribute within 500 feet of a public housing facility, the court sentenced defendant to twelve years in prison, with five years of parole ineligibility. On counts two and four, the court sentenced him to prison terms of four years, to run concurrent to count two and each other.
Defendant appeals, raising the following arguments:
THE PROSECUTOR COMMITTED MULTIPLE AND INTER-RELATED ACTS OF MISCONDUCT THAT DENIED MR. PATTERSON A FAIR TRIAL AND DUE PROCESS OF LAW.
A. THE INTRODUCTION OF EVIDENCE THAT MR. PATTERSON WAS UNEMPLOYED AND CARRIED $1,175 CREATED THE IMPERMISSIBLE INFERENCE THAT HE DEALT DRUGS FOR PROFIT.
[435 N.J.Super. 505] B. PROSECUTORIAL MISCONDUCT DURING SUMMATION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF, AND IMPLICITLY COMMENTED ON MR. PATTERSON'S ELECTION NOT TO TESTIFY.
C. THE PROSECUTOR INDUCED VENGENOCK TO EXPRESS AN OPINION IMPUGNING COOKE'S HONESTY WHEN HE ADMITTED THE DRUGS WERE HIS, THEREBY IMPROPERLY ATTACKING MR. PATTERSON'S DEFENSE.
D. BECAUSE OF THE MULTIPLE AND INTERRELATED INSTANCES OF PROSECUTORIAL MISCONDUCT, MR. PATTERSON WAS DENIED HIS CONSTITUTIONAL RIGHTS ...