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State v. Gibson

Decided: March 3, 1978.


Matthews, Crane and Antell. The opinion of the court was delivered by Matthews, P.J.A.D.


Defendant Gibson, Franklin Horton and two others were indicted for possession of hashish with intent to distribute (N.J.S.A. 24:21-19(a)(1)), and possession of hashish and cocaine (N.J.S.A. 24:21-20(a)(1)). During the trial Horton pleaded guilty. The jury found defendant guilty of both counts, and acquitted the other two.

Defendant was then charged as a second offender and found guilty of that charge. He was sentenced to a 12-15-year term on the first count of the indictment and the second count was merged into the first; the sentence to be served consecutively to any sentence imposed for probation violation. A $5,000 fine was also imposed.

Thereafter he was charged with violating probation. It was alleged that the drug possession of which he had been convicted had occurred on August 28, 1975. At that time he was serving a two-year probationary term which, by its terms, was to end on March 15, 1976. The probation violation was not charged, however, until after defendant had been convicted of the substantive crime on October 22, 1976. Therefore, by the time he was found guilty, on November 5, 1976, of violating probation, his probationary term had ended in excess of seven months earlier.

Defendant's appeal from the criminal trial and the second offender determination wsa consolidated with his appeal from the finding of probation violation.

Defendant raises the following arguments here:

(1) It was error for the State to fail to disclose to defense counsel that codefendant Horton had a charge pending against him at the time of trial.

(2) It was error to deny his mistrial motion based on Horton's hearsay testimony regarding other crimes committed by him.

(3) Horton's cross-examination was improperly restricted.

(4) Certain defense witnesses were improperly prevented from testifying regarding his state of mind.

(5) Cumulative error requires reversal.

(6) He was selectively prosecuted under the second offender provisions of the narcotics act.

(7) It was error to hold that he had violated probation.

(8) The sentence is excessive.

On August 28, 1975 codefendant Tisi, who worked with codefendant Horton, went to Horton's apartment so that Horton could pay Tisi for some work he had done. At about the same time Philander Smith drove codefendant Henderson and defendant Gibson to Horton's apartment. They arrived at about the same time as Tisi and Horton. Gibson left the car and walked to the apartment with the two. Smith remained in the car with Henderson. Thereafter, the latter got out of the car and went inside, ostensibly to use the bathroom. At about the same time, Smith saw four men walk toward the building and enter. Consequently, he drove away.

Tisi testified that while he was in the living room and Horton and defendant were in the bedroom, Henderson knocked at the door. She asked to use the bathroom and Tisi let her in. She walked into the bathroom. Almost immediately someone else knocked at the door, but this time Tisi did not open it. The door came crashing down and six police officers entered. One of the officers was James J.

Tomaini. He and the others were there to execute a search warrant.

Tisi claimed that when the officers entered Henderson was just coming out of the bathroom and Tisi was standing somewhere between the door and the bedroom. Tomaini testified, however, that as soon as he entered he saw Henderson and Tisi sitting at the dining room table and that on the table was a dish containing "two little straight lines" of a white powdered substance. The dish also contained a tightly rolled $5 bill. A tightly rolled bill is often used to inhale narcotics. He also said that he saw Horton in the bedroom.

Tomaini went into the bedroom and approached Horton. He saw Horton knock the screen out of the window and drop a brown paper bag out of the building. Tomaini looked out the window and saw that another police officer had caught the bag.

Tomaini and the others began to search the apartment. As Tomaini searched a 2'X5' closet in the bedroom, he found defendant inside, crouching, facing the side of the closet.

During the trial Horton pleaded guilty. He hold the jury that he understood that the prosecutor would tell the judge that he had cooperated, and that he hoped that the judge would be lenient but he had been made no promises regarding the length of his sentence.


At no time during the trial was there ever any indication that Horton had another charge pending against him when he testified. When defendant argued his new trial motion he alleged that sometime during the second day of Horton's testimony a prosecutor was presenting evidence to the grand jury, which several days after defendant's trial had been completed, resulted in an indictment against Horton. Defendant ...

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