STATE OF NEW JERSEY v. RAYMOND SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0421-04T40421-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND SMITH,

Defendant-Appellant.

_________________________________________________

 

Submitted February 8, 2006 - Decided April 26, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 02-06-0832.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Carolyn V. Bostic, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel; Amy F.

Newcombe, on the brief).

PER CURIAM

Defendant was tried to a jury and convicted of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one), possession with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3) (count two), and possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). After merger of the possession of CDS and possession with intent to distribute convictions into the conviction for possession with intent to distribute within 500 feet of a public park, defendant was sentenced to ten years in the custody of the Commissioner of Corrections with five years to be served before parole eligibility. Mandatory fines and penalties were imposed.

The testimony at trial indicated that police officers observed defendant place "a white object" "underneath [a] garbage pile," walk across the street and take "currency" from a person who rode up on a bicycle. The police approached defendant as he started to walk back into the street. Defendant began to run and was arrested after a chase. The police then found twenty "glassine envelopes" of heroin in two bundles in a "white sock" under the trash pile. Defendant was also in possession of $515 in cash.

On this appeal defendant argues that:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE

COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL

BECAUSE THE STATE FAILED TO PROVE BEYOND A

REASONABLE DOUBT THE ELEMENTS OF POSSESSION

OF A CONTROLLED DANGEROUS SUSTANCE,

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH THE INTENT TO DISTRIBUTE, AND

POSSESSION OF A CONTROLLED DANGEROUS

SUBSTANCE WITH THE INTENT TO DISTRIBUTE

[WITHIN] FIVE HUNDRED FEET OF A PUBLIC PARK

Our careful review of the record convinces us that the contention is without merit and warrants only the following comment. R. 2:11-3(e)(2).

Defendant argues that the police never saw him hand anything to Michael Garcia, the man on the bicycle, or take anything from the stash. However, Detectives Sebasco and McDonough testified that they observed defendant put the sock "underneath" or "into" the trash pile and then walk across the street where he was approached by Garcia who handed defendant money before defendant started to walk back towards the pile of debris. Accordingly, there was sufficient evidence of possession. See, e.g., State v. Lewis, 185 N.J. 363, 370-71 (2005) (upholding finding of constructive possession of CDS in a public zone while the drugs were located outside the zone); State v. Spivey, 179 N.J. 229, 236-37 (2004). Moreover, Sergeant Stamler testified that, in his expert opinion, defendant intended to distribute the heroin.

Defendant contends that the map introduced at trial was not properly authenticated, and Detective Sebasco did not testify that he measured the distance, so that the conviction for second degree possession within a public zone must be vacated.

The State contends that the 500 foot map was admissible because of the authenticating ordinance which was also introduced and, independently, because of the testimony of Detective Sebasco who marked the locations on the map and testified as to the distance of the stash from a public park. Detective Sebasco stated, without objection, that the heroin was placed within 500 feet of a public park. Moreover, defendant did not object to the admission of the map or its contents, and the County ordinance authorizing the map was also introduced. See N.J.S.A. 2C:35-7.1e. Under these circumstances, we cannot upset the verdict.

The sentencing transcript presented to us suggests there were prior sentencing proceedings which were not transcribed. In any event, as the trial judge did not relate the aggravating factors exclusively to defendant's prior record, we have to remand for resentencing. State v. Natale, 184 N.J. 458 (2005).

Affirmed and remanded for resentencing.

 

The defendant also produced expert testimony as to intent, but the issue before us is only whether there was sufficient evidence on which the jury could convict.

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A-0421-04T4

April 26, 2006