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State v. Dayton

July 1, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRELL DAYTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.

Approved for Publication July 1, 1996.

Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

The opinion of the court was delivered by

STERN, J.A.D.

Defendant was indicted on four counts of aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (counts one through four); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count six).

On the day of trial, defendant's attorney moved to withdraw as defense counsel on grounds that his "testimony might be necessary" in light of his meeting with two of the State's witnesses and the prosecutor's recent report that the witnesses' statement given in counsel's office "had been in some way pressured out of them" by the attorney. The prosecutor advised the court that while the witnesses, victims James Barr and Billy Dave Britton, were told by defense counsel that the weapon was a knife, both witnesses would testify that the weapon counsel "showed them in his office was not the weapon that the defendant used." The Judge denied the motion, reasoning that it was common that "you get witnesses that bounce back and forth between different sides," and that if they were reinterviewed there was a "good chance ... they'd give you another statement." Defense counsel then moved for sequestration of the State's witnesses, and the court ordered all witnesses sequestered. Trial was then commenced. Defendant's motion to "dismiss" (and for entry of judgment of acquittal) was granted as to counts three and four at the end of defendant's case. Those counts alleged aggravated assault on L.W. and A.A. Defendant was found guilty of counts five and six, the weapons violations, and on count one, the aggravated assault upon James Barr. The jury found defendant not guilty as to count two, aggravated assault upon Bill Britton.

After denial of defendant's motion for a new trial, defendant was sentenced to a presumptive seven year term with a mandatory three year parole disqualifier under the Graves Act on count five, and to concurrent terms on the other convictions. Defendant was assessed a $150.00 Violent Crimes Compensation Board penalty and $225.00 Safe Street penalty.

On this appeal defendant argues:

POINT I THE TRIAL COURT ERRED IN FAILING TO RELIEVE

DEFENDANT'S ATTORNEY AND FAILING TO GRANT A

CONTINUANCE OF THE TRIAL SO AS TO PERMIT

DEFENDANT TO OBTAIN NEW COUNSEL.

POINT II THE ATTORNEY FOR THE DEFENDANT PROVIDED

INEFFECTIVE ASSISTANCE SUFFICIENT TO CREATE

A REASONABLE PROBABILITY THAT HIS INEFFEC-

TIVENESS MATERIALLY CONTRIBUTED TO THE

DEFENDANT'S CONVICTION.

POINT III THE TRIAL COURT ERRED IN FAILING TO PERMIT

A WITNESS CALLED BY THE DEFENSE TO TESTIFY

ON THE BASIS THAT SHE VIOLATED AN ORDER OF

SEQUESTRATION THEREBY SEVERELY PREJUDICING

THE DEFENDANT.

We reverse defendant's conviction and remand ...


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