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State v. Matthews

Decided: May 8, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN J. MATTHEWS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Pressler, Scalera and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

[233 NJSuper Page 293] In Indictment No. 130-01-87 defendant was charged with possession of cocaine, N.J.S.A. 24:21-20(a)(1), and possession of that substance with intent to distribute, N.J.S.A. 24:21-19(a)(1).

In Indictment No. 774-04-87 defendant was charged with possession of cocaine, N.J.S.A. 24:21-20(a)(1), and distribution of cocaine, N.J.S.A. 24:21-19(a)(1). After the trial judge concluded that defendant's prior convictions were admissible in the event he testified at trial, defendant was tried and convicted on Indictment No. 774-04-87. He subsequently pled guilty to count one of Indictment No. 130-01-87 in exchange for dismissal of count two thereof.

Defendant was simultaneously sentenced on both indictments. Count one of Indictment 774-04-87 was merged into count two of that indictment, and defendant was sentenced thereon to twelve years in the custody of the Commissioner of Corrections with six years to be served before parole eligibility. The sentence was made consecutive to any violation of parole. On count one of Indictment 130-01-87 defendant was committed into the custody of the Commissioner of the Department of Corrections for five years, with one year to be served before parole eligibility. That sentence was made consecutive to the sentence imposed on Indictment 774-04-87 and to the parole violation. A $30.00 penalty for the benefit of the Violent Crimes Compensation Board was imposed on both indictments.

On this appeal defendant argues:

POINT I THE COURT'S SENTENCE OF THE DEFENDANT WAS BOTH ILLEGAL AND EXCESSIVE.

POINT II IT WAS ERROR FOR THE COURT TO ADMIT TESTIMONY AND PHOTOGRAPHS CONCERNING AN INVESTIGATOR'S PRE-TRIAL IDENTIFICATION.

POINT III IT WAS ERROR FOR THE COURT TO PERMIT EVIDENCE CONCERNING DEFENDANT'S PRIOR ARREST AND CRIMINAL INVOLVEMENT BEFORE THE JURY.

We are satisfied that the arguments advanced in support of the Points II and III are clearly without merit and do not warrant discussion. R. 2:11-3(e)(2). We merely note that this case did not involve an identification in the traditional sense. Rather, it dealt with review of two photographs by the undercover investigator in order to obtain the name of the person who sold him cocaine on October 3, 1986. The undercover investigator indicated

that he was "unsure of the name", not the identity, of the individual who sold him cocaine, and that he looked at pictures so that the investigators could ascertain the name. We agree with the trial judge that there was no showing of impermissible suggestiveness in these circumstances, and that, in any event, the State showed by clear and convincing evidence that the in-court identification was not tainted by any out-of-court identification because there was never a question on the part of the undercover investigator as to the person, as opposed to the name of the person, from whom he bought drugs.

We also agree with the trial judge that defense counsel opened the subject of the prior investigation by virtue of the testimony he developed which suggested that one Pilod, who was involved in the related matter, was actually the seller because his name was on the report. In any event we find no prejudice, because the trial judge gave a careful limiting instruction in advising the jury not to consider why the Camden police were in possession of defendant's photograph and to consider only the evidence with respect to the present offense. The jury was expressly advised not to consider the possession of the photograph as an inference of any ...


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