STATE OF NEW JERSEY v. HERBY CHANOINE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3195-04T43195-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERBY CHANOINE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 11, 2006 - Decided February 2, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Ind. No. 04-04-00330.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Peter Ventrice, Designated Counsel,

of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

A three-count indictment charged defendant Herby Chanoine with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession with intent to distribute cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three). Prior to trial, defendant's motion to suppress items seized from his apartment including documentation that established his identity, currency, and paraphernalia, was granted. The case was tried on October 27 and 28, 2004, and the jury returned a verdict of guilty on all three counts of the indictment.

At sentencing on January 21, 2005, defendant's attorney asked the court to sentence defendant as if he were being sentenced for a third-degree offense:

Mr. Chanoine is a young man who was in school, doing well in school, both at Fairleigh [Dickinson] and enrolled at Seton Hall University. I also submitted to the Court proof of his employment. He was a working man and he was also educating himself in two different colleges.

. . . .

Even though Mr. Chanoine was convicted of a second degree 500 foot charge I would ask your Honor to sentence Mr. Chanoine as a third degree, rather than the second degree.

The presentence report noted that defendant had been arrested on several different occasions, but this was his first indictable conviction. The trial court merged counts one and two with count three and imposed a seven-year prison term on count three, reasoning as follows:

Anything less than a period of incarceration would be the cost of doing business, as a drug dealer, which is what you are. You might be a college kid, too, that is possible, but you have crossed the line when you started selling drugs or having possession with intent to sell drugs.

I don't see anything mitigating here.

I could clearly justify a higher number, but you have shown me the fact that he has attended college and he's done pretty good in college. So although I found the aggravating outweighs the mitigating I'll sentence him to the presumptive term on Count three to a 7-year term.

Defendant now makes the following arguments:

POINT I

THE TRIAL [COURT] SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT INTENDED TO DISTRIBUTE COCAINE.

POINT II

DEFENDANT SHOULD HAVE BEEN SENTENCED AS A THIRD DEGREE OFFENDER BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE AGGRAVATING FACTORS, AND THE INTEREST OF JUSTICE SO DEMANDED.

POINT III

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT INTENDED TO DISTRIBUTE COCAINE. (Not Raised Below.)

We have considered each of these arguments in light of the record, the briefs filed, and the applicable law. We conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

During the trial, Detective Keith Franklin of the Union County Prosecutor's Office was qualified as an expert in narcotics without objection. When responding to a hypothetical question that assumed facts corresponding to the facts adduced at trial, Detective Franklin provided the following testimony:

In my opinion, to possess 8 vials of cocaine would be for personal use; but to take the eight vials and to put [them] into a plastic bag as we have here in S-1 and then put that into a stash location some place in the hallway would be for possession with intent to distribute.

After the State rested, defendant's attorney argued that defendant was entitled to a judgment of acquittal as to counts two and three of the indictment. The court denied the motion noting that if the jury believed the testimony of Detective Franklin, then it could conclude beyond a reasonable doubt that defendant was guilty of all three charges.

Pursuant to R. 3:18-1, a defendant is entitled to entry of a judgment of acquittal if, "[a]t the close of the State's case or after the evidence of all parties has been closed, . . . the evidence is insufficient to warrant a conviction." In deciding a motion for acquittal, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Martin, 119 N.J. 2, 8 (1990) (internal quotation marks omitted). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996). Based on our review of the record, we are satisfied that the trial court did not err in denying defendant's motion for a judgment of acquittal. There was sufficient evidence presented to submit the factual disputes to the jury and sufficient proofs to support defendant's convictions. Defendant's remaining contentions are equally without merit.

 
Affirmed.

(continued)

(continued)

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A-3195-04T4

February 2, 2006