STATE OF NEW JERSEY v. JOHN M. GOLDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6253-03T46253-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN M. GOLDEN,

Defendant-Appellant.

________________________________

 

Submitted January 31, 2006 - Decided February 14, 2006

Before Judges Coburn and S.L. Reisner.

Appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-05-0648.

Jean B. Bennett, attorney for appellant.

Zulima V. Farber, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On March 20, 2003, defendant, John M. Golden, was convicted by a jury of third degree distribution of cocaine in a school zone, in violation of N.J.S.A. 2C:35-10A(1). On May 30, 2003, he pled guilty to one count of third degree school zone drug distribution and a violation of probation. Pursuant to the terms of the plea bargain, he was sentenced on all of these convictions on June 26, 2003, to an aggregate term of ten years in prison with five years of parole ineligibility. He appeals from the March 20, 2003 conviction and from the aggregate sentence. We affirm the conviction. The State concedes that because the sentence was in excess of the presumptive term, this matter must be remanded to the trial court for reconsideration of the sentence pursuant to State v. Natale, 184 N.J. 458, 495-96 (2005). We remand for that limited purpose.

I

These are the most pertinent facts. Detective Miller of the Burlington City Police Department testified that during an undercover "buy and bust" operation, she bought forty dollars worth of crack cocaine from a black male, who weighed approximately 200 pounds, was six feet tall, wore a black jacket and black pants, and was carrying "a black bag in his hand." Detective Miller testified that during the purchase, she was approximately a foot away from the seller and had ample opportunity to observe his face. She also testified that during almost four years of prior employment with the United States Border Patrol, she had received extensive training in identification of suspects.

Shortly after the purchase, she met with Officer Caruso for debriefing. At that time, he showed her a photograph of the defendant, telling her that she might or might not recognize the person in the photograph. She identified the photograph as being the person who sold her the drugs. At both the Wade hearing and at trial, Detective Miller identified defendant as the person who sold her the drugs. She testified that during the sale, she had focused on the face of the seller so that she could identify him later on. She testified that she was absolutely certain that defendant was the person who sold her the drugs. Defense counsel was given considerable latitude in cross-examining her on whether the procedure followed by Officer Caruso, in showing her only one photograph, was consistent with the Attorney General's Guidelines for photographic identification. Hence, the defense was able to develop its theory that her in-court identification of defendant was based on a suggestion created by the photograph rather than on her actual memory of what defendant looked like.

At the trial, Office Caruso testified that he was working as the "backup and identification officer" for the buy and bust operation. When he received a radio broadcast advising that a buy had occurred and giving a description of the suspect, he immediately drove to the area where the buy was reported to have occurred. When he arrived, he observed defendant at the scene. He testified that he recognized defendant because he had known him for ten years. He testified that defendant was wearing dark clothing and was carrying a black bag. Thereafter, Caruso obtained a photograph of defendant and met with Detective Miller. After telling her that "she may or may not recognize the subject in this photo," he showed her the photograph "[t]o see if she could identify the subject as being the [person] that sold her the controlled dangerous substance."[T17] According to Officer Caruso all of these events, including Miller's identification of the photograph, occurred within about ten minutes after the drug transaction.

II

On this appeal, defendant's sole basis for challenging his March 20, 2003 conviction is that the trial judge "erred in allowing the identification of defendant by Detective Miller to be presented at trial." Having reviewed the record, we find this contention to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm for the reasons stated by Judge Almeida in his oral opinion placed on the record on March 19, 2003.

While we find no merit in defendant's contention that his sentence was "manifestly excessive," we remand this matter to the trial court for reconsideration of the sentence pursuant to State v. Natale, supra, to "determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

 
Affirmed in part, remanded in part.

Defendant received two concurrent sentences of ten years, each with a five year period of parole ineligibility, for the drug offenses, plus a concurrent four-year sentence for the violation of probation.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-6253-03T4

February 14, 2006