Opinion
DOCKET NO. A-2239-12T3
02-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALLEN J. FARMER, a/k/a A.J. FARMER, a/k/a ALAN FARMER, a/k/a RAHEEM J. TUBBLETON, Defendant-Appellant.
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-11-0953. Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief). Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Allen J. Farmer appeals the denial of his motion for acquittal on count three of the indictment following the close of evidence at trial, as well as his sentence. After reviewing the record and applicable legal principles, we reverse defendant's conviction on that count and remand for re-sentencing.
I
In 2008 defendant was charged with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1), (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-4(a)(1) and N.J.S.A. 2C:35-5(b)(3), (count two); and third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three).
On March 31, 2011, a jury convicted defendant of all three counts. On September 7, 2012, the court granted the State's motion to sentence defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). After merging the first and second counts, the court sentenced defendant on the remaining count to a ten-year term of imprisonment, with a four-year period of parole ineligibility.
At trial, police officer Marcos Diaz testified that, on June 26, 2008, he and another officer were on patrol in Elizabeth in a marked car when they received a call to respond to the 400 block of Westminster Avenue, an area known for drug-trafficking. They noticed a man, later identified as defendant, sitting on the front steps of an apartment building at 435 Westminster Avenue. The officers parked nearby and, after exiting the patrol car, Diaz observed defendant stand up, remove an object from his pocket, toss the object to the ground, and walk to the door of the building. Diaz approached the building and retrieved the object, which was a package containing nine individually-wrapped baggies of rocks of cocaine. Defendant was then placed under arrest.
Diaz testified the State charged defendant with possession with intent to distribute within 1,000 feet of school property because, according to a map of Elizabeth to which he referred during his testimony, 435 Westminster was within 1,000 feet of Butler School, an elementary school in operation at the time of defendant's arrest. Both a copy and an enlarged version of the map to which Diaz had referred was admitted into evidence.
The record indicates this map was a "drug-free school zone map" created by the City of Elizabeth. An ordinance describing and setting forth the purpose of this map was also admitted. Elizabeth, N.J., Ordinance No. 3261 (2000). The ordinance provides that, in accordance with N.J.S.A. 2C:35-7, the map was "approved and adopted as an official . . . record of the location and areas within the municipality of property which is used for school purposes . . . and of the areas on or within one thousand feet of such school property." Ibid. Neither Diaz nor any witness testified they had personal knowledge of the actual distance.
At the close of all evidence, defendant moved for a judgment of acquittal, see Rule 3:18-1, on the third count. Defendant argued the map did not in any way depict the distance between Butler School and the location where defendant was found in possession of cocaine, and that there was no other evidence on which a jury could find beyond a reasonable doubt that defendant was within 1,000 feet of the school at such time. The court denied the motion. The jury found defendant guilty of all counts with which he was charged. The court denied the motion and permitted the jury to draw its own inferences from the map.
II
On appeal, defendant raises the following points for our consideration:
POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT THREE, THIRD-DEGREE POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE ON OR WITHIN 1,000 FEET OF SCHOOL PROPERTY, BECAUSE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT 435
WESTMINSTER AVENUE WAS WITHIN 1,000 FEET OF THE BUTLER SCHOOL.
POINT II - THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
"[A]fter the evidence of all parties has been closed, the court shall, on defendant's motion . . . , order the entry of a judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to warrant a conviction." R. 3:18-1. The test a court must apply is whether viewing the evidence in its entirety and giving the State the benefit of all favorable testimony and inferences, a jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). We utilize the same standard as the trial court in determining whether a judgment of acquittal was warranted. State v. Ellis, 424 N.J. Super. 267, 273 (App. Div. 2012) (citing State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006)).
Here, we are convinced from our examination of the map that it fails to depict the distance between any two points, let alone the distance between Butler School and the area where defendant was found to be in possession of cocaine. There is no circle or other marking depicting the one-thousand foot boundary specifically around the Butler School property. Although there are a series of connected arcs or semi-circles drawn on the map, none of these markings provide a sufficient foundation in this criminal case to determine the distance between any two points or the area that is within one-thousand feet of the Butler School property. Further, there is no indication the map is drawn to scale but, even if it were, there is no legend or graphic bar scale to enable one to measure the distance between any points on the map.
We examined the original exhibit that had been admitted into evidence, which was provided at our request during appellate oral argument. --------
As there was no competent proof beyond a reasonable doubt defendant was in possession of cocaine with the intent to distribute within 1,000 feet of school property, a key element of N.J.S.A. 2C:35-7, the motion for acquittal on the third count of the indictment should have been granted. The trial court erred in denying the motion and in allowing the jury to make its own inferences from the inadequate map. Accordingly, we vacate the conviction for N.J.S.A. 2C:35-7 and dismiss the third count.
Our disposition obviates the necessity to address the remaining argument point. Because count one and count two had been merged into count three and count three has been dismissed, counts one and two are now unmerged. Therefore, we remand this matter for resentencing on count one and count two.
Reversed on count three and remanded for re-sentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION