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State v. Soto

Decided: May 31, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARTIN ANTHONY SOTO, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Middlesex County.

Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D. Landau, J.A.D., concurring in part and dissenting in part.

Long

In December 1987, defendant Martin Anthony Soto was arrested in Perth Amboy in possession of 2.41 grams of cocaine. The State Street location of his arrest is within 1,000 feet of two schools. Defendant was charged in Middlesex County Indictment No. 499-03-88 with third degree possession of a controlled dangerous substance, cocaine, with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count one); third degree possession of a controlled dangerous substance, cocaine, with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-5a and 2C:35-7 (count two); and third degree possession of a controlled dangerous substance, cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count three). After a jury trial, defendant was convicted on all counts. The trial judge merged count three into count one for sentencing. He then sentenced defendant on count one to a custodial term of five years and on count two to a consecutive custodial term of five years with three years of parole ineligibility. The judge imposed separate Drug Enforcement Demand Reduction penalties of $1,000 on each conviction and also imposed appropriate Violent Crimes Compensation Board penalties. In addition, he suspended defendant's driving privileges for six months on each conviction, the suspensions to run concurrently.

Defendant appeals claiming that the following errors warrant reversal:

POINT I:

THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II:

THE PROSECUTOR'S MISCONDUCT IN HIS SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL

POINT III:

THE JUDGE ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT TWO.

POINT IV:

INASMUCH AS THE NON-MERGER PROVISIONS OF 2C:35-7 OFFEND BOTH DUE PROCESS AND FUNDAMENTAL CONCEPTS OF CRIMINAL JUSTICE, THE JUDGE ERRED IN NOT GRANTING DEFENSE COUNSEL'S MOTION TO MERGE COUNT ONE CHARGING A VIOLATION OF 2C:35-5 WITH THE CONVICTION FOR 2C:35-7 ...


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