STATE OF NEW JERSEY v. MONTIQUE BYRD

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5926-04T45926-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MONTIQUE BYRD,

Defendant-Appellant.

____________________________________

 

Submitted September 20, 2006 - Decided October 10, 2006

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Docket No. 04-10-1489.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Brian D. Winters,

Designated Counsel, of counsel and on the

brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Mary E. McAnally,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

Defendant Montique Byrd was tried before a jury and convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10a; third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b; and third-degree possession of heroin with intent to distribute, within 1,000 feet of school property, N.J.S.A. 2C:35-7. The court granted the State's motion seeking to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and sentenced defendant to an aggregate term of eight years, with four years of parole ineligibility to run concurrent to an unrelated prior sentence. The court also imposed the mandatory fines and penalties.

We gather the following facts from the evidence presented at trial.

The incident leading to defendant's arrest occurred sometime after midnight on July 15, 2004. On this date, City of Paterson police detective Timothy Tabor established a surveillance post in the vicinity of Keen Street and Graham Avenue, an area known for high levels of illicit drug sales. A map admitted into evidence indicated that this area was also within 1,000 feet of Public School No. 10.

Tabor dressed in plain civilian clothes, with his police badge hanging around his neck. He positioned himself in such a manner where he had an unobstructed view of an area illuminated by street lights. From this vantage point, Tabor saw a man, subsequently identified as defendant, wearing a black-hooded sweatshirt and black jeans. He was standing on the corner of Keen Street and Graham Avenue.

Tabor described his surveillance location as an elevated two-story-high position, thirty to forty feet away from the location were defendant was standing. Tabor also had binoculars with him, which he used intermittently. Defendant was standing directly in Tabor's line of vision.

In contrast to the normal flow of pedestrian traffic, defendant remained standing in one location. At one point, Tabor observed a woman engage defendant in a brief conversation. The woman then gave defendant what appeared to be paper currency. While the woman waited, defendant walked across the street toward a truck that was parked in a parking lot approximately ten to fifteen feet away. Tabor then observed defendant bend down near the truck's rear tires and remove a black plastic bag. Defendant then retrieved an unknown object from the bag, returned the bag to the rear wheel area, and walked across the street where the woman was waiting. Defendant handed the woman the object he had retrieved from the bag, and the two parted, with the woman heading west toward Keen Street.

Based on his training and experience, Tabor concluded that he had just witnessed an illicit narcotics transaction. He radioed defendant's description to other Paterson detectives who were located nearby. These officers were designated "the scoop team," because of their responsibility to apprehend suspects identified as participants in drug transactions. Within minutes, the "scoop team" officers arrived at the scene and arrested defendant. A search of the truck's rear tires revealed a black plastic bag containing twenty-two folds of heroin stamped with the logo "Heavyweight." The police also recovered $586 from defendant's person.

As part of its case in chief, the State also presented the testimony of a narcotics detective who was qualified by the court as an expert in the area of illicit drug sales. This witness opined that the manner in which the heroin was packaged was consistent with a drug distribution scheme.

Defendant testified in his own defense. He stated that he had won the money found on his person from playing dice. He also addressed and admitted to a number of prior criminal convictions that had been previously sanitized by the trial judge in a N.J.R.E. 104 hearing. See State v. Brunson, 132 N.J. 377, 391 (1993); State v. Sands, 76 N.J. 127, 147 (1978).

Against this factual backdrop, defendant now raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISCLOSE THE SURVIELLANCE LOCATION.

POINT II

PURSUANT TO THE HOLDINGS IN STATE V. NATALE AND ITS PROGENY DEFENDANT'S SENTENCE MUST BE REVERSED AND REMANDED.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, A NEW TRIAL.

POINT IV

THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE EXPERT TESTIMONY AS TO DEFENDANT'S GUILT. (Not Raised Below)

Defendant's arguments in Points I, III, and IV attacking his conviction lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. As to the argument concerning the expert testimony in Point IV, we are satisfied that the testimony solicited from the witness, by way of a hypothetical question, fell within the bounds set out by the Supreme Court in State v. Nesbitt, 185 N.J. 504, 512-13 (2006); see also State v. Walker, 385 N.J. Super. 388, 408 (App. Div.), certif. denied, 187 N.J. 83 (2006). With respect to the sentence imposed by the court, because the eight-year term is above the now defunct presumptive term of seven years, State v. Natale, 184 N.J. 458, 466 (2005), we are compelled to remand this matter for re-sentencing. State v. Thomas, 188 N.J. 137, 152 (2006).

Defendant's conviction is affirmed. The matter is remanded for re-sentencing.

 

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6

A-5926-04T4

October 10, 2006

 


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