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State v. Kelley

Decided: March 1, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VERNON ALAN KELLEY, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. JESSE RAY ELLIS, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Union County, whose decision is reported at 246 N.J. Super. 72.

Skillman and Kestin. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendants were indicted for possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3), and second degree possession of marijuana, with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10). Defendants filed a motion to suppress, which the trial court denied for the reasons expressed in a written opinion reported at 246 N.J. Super. 72, 586 A.2d 876 (1990).

Ellis subsequently pled guilty pursuant to a plea bargain to possession of marijuana with the intent to distribute, and the trial court sentenced him to an eight year term of imprisonment. The court also suspended Ellis' driver's license for six months and imposed a $1,000 DEDR penalty, $50 lab fee and $30 VCCB penalty.

Kelley was found guilty by a jury of both charges. The court sentenced him to a seven year term of imprisonment for possession of marijuana with the intent to distribute and merged his conviction for possession of marijuana. The court also suspended Kelley's driver's license for twelve months and imposed a $2,000 DEDR penalty, $50 lab fee and $30 VCCB penalty.

Defendants have filed separate notices of appeal, which we now consolidate.

On his appeal, Kelley makes the following arguments:

I. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED ANY OF THE CHARGED OFFENSES.

II. THE STATE WAS IMPROPERLY ALLOWED TO IMPEACH DEFENDANT EXTRINSICALLY ON AN IRRELEVANT, COLLATERAL MATTER.

III. THE PROSECUTOR'S COMMENTS IN SUMMATION, IN WHICH HE BOLSTERED THE CREDIBILITY OF DETECTIVE BIENKOWSKI, AND COMMENTED AT LENGTH ON THE DEFENDANT'S RESPONSES TO THE STATE'S CROSS-EXAMINATION ON PURELY COLLATERAL MATTERS,

DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 9, 10. (Raised in part below).

IV. THE IMPOSITION OF THE PRESUMPTIVE SENTENCE ON A THIRTY YEAR OLD MAN WITH NO PRIOR CRIMINAL ...


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