STATE OF NEW JERSEY v. SHERWIN TANN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5663-05T45663-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHERWIN TANN,

Defendant-Appellant.

__________________________________________________________

 

Submitted June 12, 2007 - Decided June 28, 2007

Before Judges Stern and Coburn.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, 05-01-0069.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Gregory P. Jordan, Designated

Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jason P. Statuto,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Two) and (2); third-degree possession of heroin with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (Count Three); and second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, park or building, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a (Count Four). After merging the first three counts into Count Four, Judge Marmo sentenced defendant to imprisonment for eight years with three and one-half years of parole ineligibility.

On appeal, defendant offers the following arguments:

POINT I

IT WAS PLAIN ERROR NOT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF POSSESSION OF CDS, THE ELEMENTS OF WHICH ARE SUPPORTED BY THE EVIDENCE; A REVERSAL IS WARRANTED (NOT RAISED BELOW)

POINT II

THE TRIAL COURT ERRED IN DENYING A MOTION FOR A JUDGMENT OF ACQUITTAL

POINT III

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT REASONABLE INFERENCES WERE EVIDENCE (NOT RAISED BELOW)

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE STIPULATIONS TO BE ENTERED (NOT RAISED BELOW)

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO DISMISS COUNT 4 OF THE INDICTMENT

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Nonetheless, we add the following comments.

Defendant was arrested on February 3, 2006, in Paterson, after he was observed engaging in two narcotics transactions in a school zone, which was also within 500 feet of Roberto Clemente Park. Defendant's vehicle was stopped and the search revealed thirty-seven glassine bags of heroin on the vehicle's back seat. The defense was that the heroin was placed in the vehicle by someone else.

There was no request for a charge under the disorderly persons offense set forth in N.J.S.A. 2C:33-2.1, and we perceive no error, let alone plain error, in the absence of a charge on that offense in the circumstances of this case.

The judge properly denied defendant's motion for a judgment of acquittal on any of the counts of the indictment.

Of course, the judge was correct in charging the jury that it could draw reasonable inferences from the evidence and in admitting the stipulations into evidence. Although the record does not include the pre-sentence report, the judge found that defendant had a record that included prior felonies. He found no mitigating factors and three aggravating factors that were fully supported by the evidence. Although defendant argues that the judge should have found as a mitigating factor that defendant's conduct did not cause serious harm, such a finding would have been inappropriate. See, e.g., State v. Rivera, 253 N.J. Super. 598, 606, certif. denied, 130 N.J. 12 (1992).

Affirmed.

 

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A-5663-05T4

June 28, 2007