On appeal from the Superior Court, Law Division, Passaic County.
Long and Keefe. The opinion of the court was delivered by Keefe, J.s.c. t/a
[233 NJSuper Page 40] Defendant David Love was indicted along with George Perry and Jean D. Phillips for unlawful possession of a controlled
dangerous substance, contrary to N.J.S.A. 24:21-20 (count one); possession of a controlled dangerous substance with intent to distribute it, contrary to N.J.S.A. 24:21-19a(1) (count two); and, distribution of a controlled dangerous substance, contrary to N.J.S.A. 24:21-19 (count three). Perry entered a plea of guilty to count three of the indictment and was sentenced by the trial court to an indeterminate term at the Youth Correctional Institution Complex. The remaining counts of the indictment against Perry were dismissed on motion by the State at sentencing. As a result of certain pretrial motions which addressed the admissibility of Phillips' prior conviction and the admissibility of various statements attributed to the defendants, Phillips moved for, and was granted, a severance of her trial.
The jury returned a guilty verdict against defendant on counts one and two and a not guilty verdict on count three. At sentencing the trial judge merged the defendant's conviction for possession of a controlled dangerous substance (count one) into his conviction for possession of a controlled dangerous substance with intent to distribute it (count two) and placed defendant on probation for a period of three years but ordered that he serve 300 days in the Passaic County jail, submit to drug monitoring, and surrender his gun permit as conditions of probation. The trial judge also imposed a penalty of $30.00 payable to the Violent Crimes Compensation Board. Defendant filed a timely notice of appeal. On May 22, 1987, slightly over two months from the day he was sentenced, defendant filed a motion for a stay of his sentence and for bail pending appeal. Defendant's motion was granted.
He now raises four issues on appeal.
POINT I DEFENDANT'S FUNDAMENTAL CONSTITUTIONAL RIGHTS WERE VIOLATED BY HIS UNLAWFUL ARREST AND THE COURT'S FAILURE TO EXCLUDE INADMISSIBLE EVIDENCE OBTAINED BY MEANS OF AN ILLEGAL ENTRY. (U.S. Const., Amends. IV and XIV; N.J. Const. (1947) Art. I, par. 7). (Not Raised Below).
POINT II DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS DUE PROCESS RIGHTS TO A FAIR
TRIAL BECAUSE OF HIS COUNSEL'S FAILURE TO REQUEST A SUPPRESSION HEARING. (U.S. Const. Amends. VI and XIV; N.J. Const. (1947) Art. 1, par. 10).
A. Defense Counsel's Performance Was Deficient.
B. Defense Counsel's Deficient Performance Prejudiced the Defense.
POINT III DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION AND HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY THE CONTRADICTORY AND INADEQUATE LIMITING INSTRUCTION GIVEN TO THE JURY REGARDING THEIR USE OF DEFENDANT'S CUSTODIAL STATEMENTS. (U.S. Const. Amend. V and ...