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State v. Fort

Decided: December 11, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD HENRY FORT, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. TASIN SALSABIL MUHAMMAD, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 197 N.J. Super. 113 (1984).

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

[101 NJ Page 124] As part of their plea agreement, co-defendants were required by the prosecutor not to testify for defendants. In affirming defendants' convictions, the Appellate Division acknowledged

that the "no testimony" restriction violated defendants' right to compulsory process, but found that the defendants had not been prejudiced by the restriction. 197 N.J. Super. 113 (1984). One judge dissented, and defendants appealed of right on the compulsory process issue. R. 2:2-1(a)(2). We denied petitions for certification on other issues raised by defendants Fort, 101 N.J. 213 (1985), and Muhammad, 101 N.J. 216 (1985), and now reverse the judgment of the Appellate Division.

I

On September 21, 1981, Newark Police received information that narcotics were being prepared for distribution at Apartment 407, 98 Broad Street. Three detectives stationed themselves outside the apartment, where they overheard a conversation concerning drug-related activities. When co-defendant Barry Madison left the apartment a few minutes later, the detectives seized him and entered the room.

Inside the room were four individuals: Henry Fort and Tasin Muhammad (sometimes described as "the defendants") and William Brown and Carmen Martinez (sometimes described as "the co-defendants"). Brown and Martinez were seated at a table bearing heroin, cocaine, and drug paraphernalia. Fort and Muhammad were seated across the room on a couch. The detectives arrested everyone and searched Madison, who was carrying a key and a rent receipt for the apartment, as well as twenty glassine envelopes containing heroin. A search of Fort and Muhammad disclosed that neither possessed any drugs or drug paraphernalia, but Fort was carrying $127.

The State contends that the defendants were part of the drug distribution activities, but the defendants stated that they were visiting the apartment to find a girl named Pam. According to Fort and Muhammad, when they arrived at Apartment 407, they were told that Pam was absent but might soon return. The defendants requested the use of the bathroom, and were permitted to wait in the apartment. While Fort was in the

bathroom, Brown removed a newspaper from the tabletop, thereby revealing the narcotics. When Muhammad realized that the co-defendants were packaging narcotics, he told Fort, and they decided to leave. The co-defendants, however, told them to wait to avoid continued coming and going from the apartment. Madison then walked out of the apartment and into the arms of the Newark Police.

The Essex County Grand Jury indicted all defendants for conspiracy to possess and distribute controlled dangerous substances, possession of controlled dangerous substances, and possession with intent to distribute. Brown and Martinez entered into a plea agreement in which the State recommended reduced jail terms without parole ineligibility.

At the core of this case is an additional term of the plea agreement in which Brown and Martinez agreed not to testify on behalf of Fort and Muhammad. Defendants contend that the "no testimony agreement" deprived them of the testimony of Brown and Martinez and thereby violated the compulsory process clauses of the sixth amendment to the United States Constitution and article 1, paragraph 10 of the New Jersey Constitution.

In support of their contention, they point to the following in-court statement made by Martinez at ...


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