STATE OF NEW JERSEY v. JOSHUA LEJUNE MOORE

NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0557-07T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JOSHUA LEJUNE MOORE,

     Defendant-Appellant.
________________________________

           Submitted January 20, 2010 - Decided May 12, 2010

           Before Judges Carchman and Lihotz.

           On appeal from Superior Court of New Jersey,
           Law Division, Union County, Indictment No.
           03-10-1095.

           Yvonne   Smith  Segars,   Public  Defender,
           attorney for appellant (Michael A. D'Anton,
           Designated Counsel, of counsel and on the
           brief).

           Paula T. Dow, Acting Attorney General,
           attorney for respondent (Mary McAnally,
           Deputy Attorney General, of counsel and on
           the brief).

PER CURIAM

       Defendant    Joshua   Lejune   Moore   was   convicted   following   a

jury    trial      for   third-degree    distribution     of    cocaine,    a

controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and

N.J.S.A. 2C:35-5b(3) (count one), and third-degree distribution

of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7

(count two).        After merger, the court sentenced defendant to a

mandatory extended term of incarceration, pursuant to N.J.S.A.

2C:43-6(f), of eight years with a four-year period of parole

ineligibility.        Mandatory penalties and assessments were also

imposed.

     On appeal, defendant argues:

             POINT I
             THE STATE FAILED TO PROVE THAT THE DEFENDANT
             COMMITTED THE OFFENSES OF DISTRIBUTION OF A
             CONTROLLED    DANGEROUS     SUBSTANCE     AND
             DISTRIBUTION  OF   A   CONTROLLED   DANGEROUS
             SUBSTANCE ON OR WITHIN 1000 FEET OF SCHOOL
             PROPERTY BEYOND A REASONABLE DOUBT, THUS,
             THE VERDICT WAS AGAINST THE WEIGHT OF THE
             EVIDENCE.

             POINT II
             DEFENDANT'S SENTENCE WAS EXCESSIVE.

We affirm.

     We review the trial evidence supporting the jury's verdict.

On   April    16,     2003,    Detectives   Alvaro    Goncalves      and    Ken

Mikolajczyk were conducting an undercover street narcotics sales

investigation on East Elizabeth Avenue in Linden.              Goncalves and

Mikolajczyk     sat     in     an   unmarked      police   vehicle     parked

approximately 100 to 150 feet across the street from a specific

residence in the 200 block.           Their view of the residence was

unobstructed.        Using    binoculars,   the   detectives   watched     four




                                                                      A-0557-07T4
                                      2

individuals      on   the    porch   of   the   residence,   two    of   whom,   Ed

English and defendant, they recognized.

      A third undercover detective, Keith Johnson, drove up the

street, parked his car, exited the vehicle and approached the

four individuals on the porch.                  Johnson entered the building

with defendant and English.               In exchange for $50, Johnson was

given two plastic bags marked with a seal of "the Animal."                       Lab

tests    of     the   contents   confirmed      the   substance    was   cocaine.

Johnson exited the residence and told Goncalves he had purchased

CDS from the two.           Johnson later identified two photographs of

defendant and English as the individuals who sold him the CDS.

Mikolajczyk also consistently testified to these facts, except

he stated Johnson was shown several photographs to identify the

suspects.

      The defense presented the testimony of Chantell Thompson,

who related she had dinner with defendant on April 16, 2003.

The     State     attacked     Thompson's       credibility,      including      her

inability to recall certain details, the fact that she did not

come forward until a few months before trial, and that defendant

spoke to her a few weeks before she testified.

      English also testified, explaining he had entered a plea

agreement to testify truthfully.                 English identified a third

party, "Damian," not defendant, as the man who accompanied him




                                                                          A-0557-07T4
                                          3

into the residence to sell the CDS to Johnson.             English asserted

defendant was not present.

      The parties stipulated the residence where the transaction

took place was within 1000 feet of a school zone.                Defendant was

convicted.      He did not file a motion for acquittal at the close

of evidence or for a new trial.          R. 3:20-1.

      On   appeal,   defendant    asserts    the   State's       evidence   was

insufficient to sustain the verdict and that his sentence was

excessive.       We have considered these issues in light of the

record, the applicable law, and the arguments of counsel, and we

conclude neither is of sufficient merit to warrant discussion in

                                 2:11-3(e)(2).        We   add    these   brief
a   written    opinion.   R.

comments.

      Prior to our review of a defendant's claim that a jury

verdict is against the weight of the evidence, he or she must

have filed a motion for a new trial with the trial court within

                               R. 2:10-1; R. 3:20-2; State v. McNair,
ten days of the verdict.


60 N.J. 8, 9 (1972); State v. Perry, 
128 N.J. Super. 188, 190

(App. Div. 1973), aff'd, 
65 N.J. 45 (1974).           Rule 2:10-1 states:

              In both civil and criminal actions, the
              issue of whether a jury verdict was against
              the weight of the evidence shall not be
              cognizable on appeal unless a motion for a
              new trial on that ground was made in the
              trial court.   The trial court's ruling on
              such a motion shall not be reversed unless




                                                                      A-0557-07T4
                                     4

           it   clearly  appears   that   there  was   a
           miscarriage of justice under the law.

Defendant's failure to do so precludes our review.

       We also reject defendant's argument regarding his sentence.

Our role in reviewing the trial judge's sentence is a limited

one.    "[A]n appellate court should not substitute its judgment

for that of the lower court, and     ...   a sentence imposed by a

trial court is not to be upset on appeal unless it represents an

abuse of the lower court's discretion."     State v. Gardner, 
113 N.J. 510, 516 (1989).    Here, the sentence imposed does not shock

our judicial conscience.     State v. Roth, 
95 N.J. 334, 364-65

(1984).    It is permitted by statute and is not unduly punitive.

State v. Morton, 
292 N.J. Super. 92, 99 (App. Div. 1996).

       Affirmed.




                                                            A-0557-07T4
                                 5