STATE OF NEW JERSEY v. TYREE L. ROBERTSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4667-04T44667-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYREE L. ROBERTSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 8, 2007 - Decided May 22, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, I-1917-05-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donna M. Gayle, Designated Counsel, of counsel and on the brief).

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of (1) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); (2) third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); (3) third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and (4) second-degree possession of a CDS within 1,000 of a public park, N.J.S.A. 2C:35-7.1. After merging counts one, two and three with count four, the judge sentenced defendant to a discretionary extended term as a persistent offender, see N.J.S.A. 2C:44-3(a), of twelve years imprisonment with a six-year parole disqualifier. The judge also imposed appropriate monetary sanctions and loss of driving privileges.

From the trial testimony of Camden Police Officer Benjamin Vautier, these are the pertinent facts which could have reasonably been found by the jury. On March 21, 2004, at about 10:45 a.m., Vautier established a surveillance, using a "spotter scope," a twelve-inch monocular that is set up on a tripod, a device typically used in the military, which greatly enhances vision at a long distance. The weather was clear. Without obstruction, Vautier observed about a block away activities conducted by defendant and another man. Through his monocular, Vautier observed three or four transactions in which unknown individuals first approached the other man and handed him money. That man then directed them to defendant, who was standing apart from him but on the same side of the street. When the individual went to defendant, defendant handed the individual an object, after which the individual quickly left the area.

Suspecting he had witnessed drug transactions, Vautier alerted other officers in the area by radio and arranged to close in on defendant and the other man. Vautier got into his vehicle and the two police units closed in on defendant and the other man. At close range, Vautier observed defendant toss a plastic bag onto the porch of an abandoned house. Vautier arrested defendant, and other officers arrested the other man. Vautier was certain that defendant was the man he observed handing objects to others during his surveillance. After arresting defendant, Vautier retrieved the plastic bag that defendant had discarded. It contained fourteen baggies of heroin. Defendant had no drugs or money on his person. The other man had $45 in currency on his person. The location of the activities was within 1,000 feet of a school and 500 feet of a park.

Investigator Terry King of the Camden County Prosecutor's Office testified as an expert in drug distribution activities. Based upon a number of circumstances, including the high drug area where the activity occurred, the packaging of the seized drugs, and the activities observed by Vautier during his surveillance, King opined, in response to a hypothetical question, that the drugs were possessed with intent to distribute. See State v. Odom, 116 N.J. 65, 81 (1989).

When the State rested, Judge Baxter inquired whether defense counsel wished to make any motions, to which counsel responded in the negative. The trial continued, and defendant was convicted of all four counts in the indictment against him and sentenced in the manner we have described.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED WHEN IT NEGLECTED TO SUA SPONTE GRANT A JUDGMENT OF ACQUITTAL IN FAVOR OF DEFENDANT AT THE END OF THE STATE'S CASE.

POINT II

THE JUDGE ABUSED [HER] DISCRETION IN SENTENCING WHEN [S]HE IGNORED THE MITIGATING FACTORS AND SENTENCED DEFENDANT TO A TERM THAT WAS MANIFESTLY EXCESSIVE.

At the close of the State's case, a trial court may, on "its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." R. 3:18-1. Defendant's argument that the judge should have exercised that authority in this case is plainly without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Viewing the State's evidence in its entirety, including direct and circumstantial evidence, and affording the State the benefit of all favorable inferences, there was more than ample evidence upon which the jury could reasonably find defendant guilty of all charges beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

Sentence was imposed before the Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006). The State concedes, and we agree, that a remand for resentencing in accordance with the holding of that case is required.

 
Defendant's conviction is affirmed. The matter is remanded for reconsideration of sentence in light of State v. Pierce, supra.

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A-4667-04T4

May 22, 2007