On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Michels, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
[246 NJSuper Page 599] We now hold that the Legislature did not unconstitutionally invade the domain of the Supreme Court by enacting N.J.S.A. 2C:35-19, which establishes a pretrial procedure for rendering
admissible the results of a chemical analysis of suspected controlled dangerous substances.
Following a jury trial defendant was convicted of second-degree unlawful possession of more than one-half ounce but less than five ounces of cocaine, which included at least 3.5 grams of pure free base, with intent to distribute, a violation of former N.J.S.A. 2C:35-5a(1) and b(2),*fn1 and third-degree possession of the cocaine within one thousand feet of a school with the intent to distribute, a violation of N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7. In addition to imposing penalties, fees and a revocation of defendant's driver's license, the judge sentenced defendant to concurrent terms of eight years imprisonment for the second-degree crime, four years to be served before parole eligibility, and five years imprisonment, three years to be served before parole eligibility, for drug-dealing near a school.
Defendant raises these arguments in his brief:
I THE COURT ERRED IN ADMITTING INTO EVIDENCE, PURSUANT TO N.J.S.A. 2C:35-19, A THREE PAGE CERTIFICATE OF ANALYSIS. (Partially Raised Below.)
A. N.J.S.A. 2C:35-19 Is An Unconstitutional Invasion Of The Supreme Court's Rule-Making Power . (Not Raised Below.)
B. The Admission Of The Laboratory Certificate Under N.J.S.A. 2C:35-19 Violated Defendant's Rights Under The Confrontation Clauses Of The Federal And State Constitutions. (Not Raised Below.)
C. The Admission Of The Laboratory Certificate Was Plain Error In That The Prosecution's Failure To Establish The Chain Of Custody Rendered The Certificate Irrelevant. (Not Raised Below.)
D. The Court Committed Plain Error By Admitting, Through The Laboratory Certificate, Scientific Evidence Without Foundation. (Not Raised Below.)
II THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE PRESENCE OF AT LEAST 3.5 GRAMS OF PURE FREE BASE COCAINE WAS A NECESSARY ELEMENT TO THE CRIME SET FORTH IN THE SECOND COUNT OF THE INDICTMENT. (Not Raised Below.)
III DEFENSE COUNSEL'S FAILURE TO PROPERLY EFFECT SERVICE UPON, OR AT LEAST INTERVIEW, A PURPORTED EYEWITNESS TO
DEFENDANT'S ARREST DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below.)
IV THE COURT COMMITTED PLAIN ERROR IN ADMITTING THE TESTIMONY OF DETECTIVE MURRAY THAT HE HAD CONDUCTED A FIELD TEST UPON SUSPECTED COCAINE AND RECEIVED A POSITIVE RESULT. (Not Raised Below.)
V THE COURT ERRED IN ALLOWING THE PROSECUTOR TO ARGUE IN SUMMATION THAT THE JURY COULD DRAW AN INFERENCE AGAINST DEFENDANT DUE TO HIS FAILURE TO ...