STATE OF NEW JERSEY v. FUQUAN MORGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4864-03T44864-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN MORGAN,

Defendant-Appellant.

_____________________________________

 

Submitted: October 12, 2005 - Decided June 1, 2006

Before Judges Kestin and Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 03-05-1651.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged in two indictments with the same four crimes allegedly committed on two different dates. The charges in indictment number 03-04-1526 arose from an incident on March 16, 2003; indictment number 03-05-1651 involved an incident on March 27, 2003. In the fourth count of each indictment, defendant was charged with second-degree possession of CDS within 500 feet of public property with intent to distribute (N.J.S.A. 2C:35-7.1); and, in counts one, two and three respectively, he was charged with three third-degree crimes involving the CDS: possession (N.J.S.A. 2C:35-10a(1)), possession with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(3)), and possession within 1,000 feet of a school with intent to distribute (N.J.S.A. 2C:35-7).

A jury found defendant guilty of all crimes charged in indictment number 03-04-1526. Thereafter, he pled guilty to count three of indictment number 03-05-1651 pursuant to a plea agreement in which the State agreed to recommend a prison term of eight years with three years of parole ineligibility to be served concurrently with the sentence imposed on indictment number 03-04-1526. In accordance with the plea agreement, the remaining counts of indictment number 03-05-1651 were dismissed.

In sentencing defendant on indictment number 03-04-1526, the trial court granted the State's motion to impose an extended term on repeat drug offender and persistent offender grounds. See, respectively, N.J.S.A. 2C:43-6f; :44-3. The court merged all the convictions and, on count four, ordered a prison term of twenty years with ten years of parole ineligibility. On the single conviction under indictment number 03-05-1651, the court imposed a concurrent term of imprisonment for eight years with thirty-six months of parole ineligibility. Appropriate assessments, fees, penalties and driver's license suspensions were also ordered in both judgments of conviction.

Defendant appeals from both judgments arguing the following issues:

POINT I THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED NOT ONLY GENERAL METHODS OF DRUG DISTRIBUTION BUT ALSO THE OPINION THAT DEFENDANT HAD ENGAGED IN STREET-LEVEL DRUG DISTRIBUTION IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (Not Raised Below)

POINT II IMPOSITION OF AN ABOVE THE PRESUMPTIVE, PERSISTENT OFFENDER EXTENDED TERM WITH THE MAXIMUM PAROLE DISQUALIFIER VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

POINT III THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM EXTENDED TERM OF TWENTY YEARS WITH TEN YEARS OF PAROLE INELIGIBILITY.

We affirm the convictions and the imposition of an extended-term sentence, but reverse for reconsideration of the duration of imprisonment terms ordered.

The evidentiary flaw asserted by defendant in challenging the convictions is not a basis for a reversal. In perusing the record to determine whether it discloses a violation of the principle of State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), we note a single comment that might qualify, made by the police detective who testified as an expert in the field of street-level narcotics in the City of Newark. As part of a series of narrative responses to hypothetical questions and follow-up inquiries, the officer said: "[I]t would be my opinion that the officers had just observed an illegal hand-to-hand narcotic transaction. . . ." Taken in context, this response was a distinctly passing comment that lacked the capacity for unfairness recognized in Baskerville. See also State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351 (App. Div. 1999). Thus, the standards of State v. Odom, 116 N.J. 65 (1989), were met. See also State v. Summers, 176 N.J. 306 (2003).

Defendant's argument challenging the imposition of an extended term on constitutional grounds is without merit. See State v. McMillan, 373 N.J. Super. 27 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). His constitutionally based challenge to the imposition of a maximum period of parole ineligibility is, likewise, meritless. See State v. Abdullah, 184 N.J. 497, 508-12 (2005).

On the remaining issue on appeal, because the sentences imposed following a jury trial, see State v. Soto, ___ N.J. Super. ___ (App. Div. 2006)(slip op. at 9), were above the presumptive terms that then applied, and because the aggravating factors recited by the court went beyond considerations bearing solely on defendant's criminal history, a remand for reconsideration of the duration of the sentence is required. See State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, supra, 184 N.J. 497.

The convictions are affirmed. The matter is remanded for reconsideration of the duration of the sentences.

 

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A-4864-03T4

June 1, 2006