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State v. Ortiz

Decided: January 17, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ESTEBAN ORTIZ, DEFENDANT-APPELLANT



Michels, Havey and Conley.

Michels

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Esteban Ortiz was convicted of (1) distribution of cocaine, a third degree crime, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Fourth Count); (2) distribution of cocaine while within 1,000 feet of school property, a third degree crime, in violation of N.J.S.A. 2C:35-7 (Fifth Count), and (3) conspiracy to distribute cocaine, a third degree crime, in violation of N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:5-2 (Sixth Count). The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for five years with a three year period of parole ineligibility, assessed a $1,000 Drug Enforcement and Demand Reduction (DEDR) penalty, a $50 laboratory fee and a $30 Violent Crimes Compensation Board (VCCB) penalty and suspended defendant's driver's license for six months for his conviction for distribution of cocaine while within 1,000 feet of school property under the Fifth Count. In addition, the trial court committed defendant to a concurrent term of seven years with a three-year period of parole ineligibility, assessed a $1,000 DEDR penalty, a $50 laboratory fee and a $30 VCCB penalty and suspended defendant's license for a consecutive period of six months for his conviction of distribution of cocaine under the Fourth Count. The trial court vacated defendant's conviction for conspiracy under the Sixth Count. Defendant appeals.

Defendant seeks a reversal of his convictions on the following grounds set forth in his brief:

I. THE ADMISSION OF OTHER CRIMES EVIDENCE UNDULY PREJUDICED THE DEFENDANT.

II. THE TRIAL COURT ERRED BY ADMITTING OTHER CRIMES EVIDENCE WITHOUT A SUFFICIENT FOUNDATION ESTABLISHING THAT THE DEFENDANT ACTUALLY COMMITTED THE OTHER CRIMES.

III. THE TRIAL COURT'S FAILURE TO PROVIDE THE JURORS WITH LIMITING INSTRUCTIONS PURSUANT TO EVIDENCE RULE 6 DENIED THE DEFENDANT THE RIGHT OF DUE PROCESS. (Not Raised Below).

IV. THE INCONSISTENT JURY VERDICT VIOLATED DEFENDANT'S 14TH AMENDMENT RIGHT OF DUE PROCESS OF LAW.

We have carefully considered these contentions and all arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment concerning some of these contentions is appropriate.

I.

Defendant contends that the admission of other crimes evidence unduly prejudiced him. Specifically he argues that evidence concerning alleged drug transactions by him and co-defendant, Angel Montijo, for which neither had been indicted, was improperly admitted. We disagree.

The admissibility of other crimes or civil wrongs is governed by Evid.R. 55 which provides:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his Disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including ...


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