STATE OF NEW JERSEY v. CESAR A. OGANDO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5682-04T45682-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CESAR A. OGANDO,

Defendant-Appellant.

______________________________________

 

Submitted July 31, 2006 - Decided August 15, 2006

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 04-02-0821.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jean B. Bennett, Designated Counsel, of counsel and on the brief).

James P. Lynch, Acting Camden County Prosecutor, attorney for respondent

(Roseann A. Finn, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Cesar A. Ogando appeals from a final judgment of conviction and sentence. He was tried to a jury and convicted of possession of heroin, a crime of the third degree, N.J.S.A. 2C:35-10a(1) (count one); possession of heroin with intent to distribute, a crime of the third degree, N.J.S.A. 2C:35-5a(1), b(3) (count two) and possession of heroin with intent to distribute within 1,000 feet of a school, a crime of the third degree, N.J.S.A. 2C:35-7 (count three). The judge merged counts one and two into count three and sentenced defendant to a three-year term of incarceration and imposed a three-year term of parole ineligibility, as required by N.J.S.A. 2C:35-7.

On December 30, 2003, Lieutenant Joseph Galiazzi was assigned to conduct an undercover surveillance operation in an area of the City of Camden known for drug trafficking. Between seven and eight o'clock p.m., he saw defendant standing on a street corner. A street light allowed him to see a woman approach defendant and hand him cash, which defendant put in his pocket. Defendant walked to the porch of a nearby house, lifted a floor board and removed and then replaced an object. He returned to the woman and handed her a smaller object. The Lieutenant saw a second person approach defendant and watched while defendant again accepted money, went to the porch and returned to hand something to the buyer. At that point, the Lieutenant called for back-up and continued to watch defendant until they arrived.

Defendant was arrested. He had $127 in cash, and a package that contained six clear bags with blue paper and white powder was found under the floor board on the porch of the vacant house. Subsequent testing demonstrated that the powder was heroin.

Defendant produced a witness who testified that there were a number of people on the street on the night defendant was arrested. She explained that the people on the street were dressed in similar clothing. She contended that she saw a different person selling drugs from the porch. She did not see defendant going to the porch and the street light was not working that night.

Defendant raises one argument on appeal. That argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). He contends that the verdict was against the weight of the evidence. The issue was not raised below, and it is appropriate for us to disregard the argument when the defendant has not moved for a new trial on this ground before the judge who had an opportunity to hear the testimony. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974).

Moreover, our review of the record convinces us that there was no miscarriage of justice that would have given the trial judge or this court reason to disturb this verdict if defendant had raised the issue in accordance with the Rules of Court. See State v. Sims, 65 N.J. 359, 373-74 (1974). The State's proofs were adequate to permit the jury to find each essential element of each crime charged beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); State v. Reyes, 50 N.J. 454, 458-59 (1967), and those adequate proofs were not undermined by the defense evidence.

Affirmed.

 

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4

A-5682-04T4

 

August 15, 2006