On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Michels and Kestin.
The opinion of the court was delivered by
Tried to a jury, defendant Kevin Lambert was convicted of (1) possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1) (Count 1); (2) possession with intent to distribute cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count 2); and (3) possession with intent to distribute cocaine within 1,000 feet of school property, a crime of the third degree, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (Count 3). The trial court merged defendant's convictions for possession of cocaine under Count 1 and for possession with intent to distribute cocaine under Count 2 into his conviction for possession of cocaine with intent to distribute cocaine within 1,000 feet of school property under Count 3 and committed defendant to the custody of the Commissioner of the Department of Corrections for three years with a three year period of parole ineligibility. In addition, the trial court assessed a $1,000 Drug Enforcement Demand Reduction penalty and a $50 laboratory fee and suspended defendant's New Jersey driver's license for six months. Defendant appeals.
Defendant seeks a reversal of his convictions and a remand for a new trial or, alternatively, a remand for resentencing on the following grounds set forth in his brief.
I. THE TRIAL COURT'S REFUSAL TO GRANT A MISTRIAL AND ITS EARLIER REFUSAL TO GRANT AN ADJOURNMENT TO ALLOW THE DEFENSE TO OBTAIN A PSYCHIATRIC EVALUATION OF THE DEFENDANT TO DETERMINE HIS COMPETENCY AND WHETHER THERE EXISTED A POTENTIAL DIMINISHED CAPACITY DEFENSE DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.
II. THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE ANONYMOUS TIP DID NOT PROVIDE PROBABLE CAUSE EITHER TO SEIZE THE DEFENDANT OR SEARCH THE HALLWAY AND THE DEFENDANT DID NOT RELINQUISH HIS PRIVACY INTEREST IN THE PLASTIC BAG WHICH HE ATTEMPTED TO HIDE.
A. The Anonymous Tip And Observation That Defendant Tossed Something Into The Hallway Did Not Provide Probable Cause Justifying The Defendant's Seizure And Removal From The Porch.
B. The Defendant Did Not Relinquish A Reasonable Expectation of Privacy When He Attempted To Hide The Plastic Bag From The Police.
C. The Plain View Exception Does Not Justify The Warrantless Search.
III. THE PROSECUTOR'S SUMMATION COMMENTS, DESIGNED TO ESTABLISH THAT POLICE TESTIMONY WAS CREDIBLE BECAUSE IT WAS PROVIDED BY POLICE OFFICERS, WHO WOULD NOT RISK THEIR CAREERS BY LYING, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, ...