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State v. Moore

May 6, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES T. MOORE, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. JEFFREY T. FELTON, DEFENDANT-APPELLANT. *FN1



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

Approved for Publication July 24, 1997.

Before Judges Pressler and Stern. 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.

Defendants Charles T. Moore and Jeffrey T. Felton were jointly tried and convicted of first degree possession with intent to distribute more than five ounces of cocaine, contrary to N.J.S.A. 2C:35-5a(1), -5b(1) (count one), and possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count two). The trial Judge merged count two into count one and sentenced both defendants to a term of fifteen years in the custody of the Commissioner of Corrections with a five year parole ineligibility term on the first count. Defendants' driver's licenses were suspended for eighteen months, and a $3,000 Drug Enforcement Demand Reduction penalty, a $75 Safe Neighborhood Service Fund assessment, a $50 Violent Crimes Compensation Board penalty, and a $50 forensic laboratory fee were imposed on each.

In his appeal Moore argues:

POINT I THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTIONS TO THE JURY, REQUIRING A REVERSAL OF DEFENDANT'S CONVICTION [Not Raised Below]

a. The trial court committed reversible error when it instructed the jury with respect to N.J.S.A. 2C:35-5 that the "State need not prove the Defendant's knowledge of the quantity of drugs . . . "

b. The trial court erred in failing to instruct the jury on "mere presence" as an essential part of the definition of "constructive" possession

c. The trial Judge committed reversible error in failing to instruct the jury sua sponte in accordance with State v. Hampton and State v. Kociolek

POINT II THE ADMISSION INTO EVIDENCE OF CO-DEFENDANT'S STATEMENT DURING PRE-TRIAL QUESTIONING THAT HE "WANTED AN ATTORNEY" WAS ERRONEOUS AND GROSSLY PREJUDICIAL TO DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL VERDICT

POINT III THE PROSECUTOR'S COMMENTS IN SUMMATION, VOUCHING FOR THE VERACITY OF THE STATE'S POLICE WITNESS, AND MAKING A "SAFE STREET" ARGUMENT TO THE JURY HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST VERDICT IN THIS CASE [Not Raised Below]

POINT IV THE TRIAL COURT'S FAILURE TO LIMIT THE SCOPE OF THE STATE'S EXPERT WITNESS IN THIS CASE, COUPLED WITH THE COURT'S INSTRUCTIONS ON THE JURY'S USE OF EXPERT TESTIMONY, HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST RESULT [Not Raised Below]

POINT V THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS

On this appeal defendant Felton argues:

POINT I THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTIONS TO THE JURY, REQUIRING A REVERSAL OF DEFENDANT'S CONVICTION [Not Raised Below]

a. The trial court committed reversible error when it instructed the jury with respect to N.J.S.A. 2C:35-5 that the "State need not prove the Defendant's knowledge of the quantity of the drugs . . . "

b. The trial court erred in failing to instruct the jury on "mere presence" as an essential part of the definition of "constructive" possession

POINT II THE ADMISSION INTO EVIDENCE OF DEFENDANT'S STATEMENT DURING PRE-TRIAL QUESTIONING THAT HE "WANTED AN ATTORNEY" WAS ERRONEOUS AND GROSSLY PREJUDICIAL TO DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL VERDICT

POINT III THE PROSECUTOR'S COMMENTS IN SUMMATION VOUCHING FOR THE VERACITY OF THE STATE'S POLICE WITNESS, AND MAKING A "SAFE STREET" ARGUMENT TO THE JURY HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST VERDICT IN THIS CASE

POINT IV THE TRIAL COURT'S FAILURE TO LIMIT THE SCOPE OF THE STATE'S EXPERT WITNESS IN THIS CASE, COUPLED WITH THE COURT'S INSTRUCTIONS ON THE JURY'S USE OF EXPERT TESTIMONY, HAD THE CLEAR CAPACITY TO PRODUCE AN UNJUST RESULT

POINT V THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS

POINT VI THE TRIAL COURT SHOULD EXERCISE THE DISCRETION ALLOWED BY RULE 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT AT ACQUITTAL AS THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION

We find no merit in the issue addressed to the motion to suppress the cocaine found in the trunk of the car in which defendants were riding. However, we reverse Felton's conviction because of constitutional error directed to his assertion of the right to counsel and remand for a new trial as to Felton. The merged count shall, of course, be unmerged for such purposes. We affirm Moore's conviction.

Felton was a passenger in a car being driven by Moore. The car bore North Carolina "dealer" license plates when stopped on the New Jersey Turnpike. Moore consented to a search of the car, and cocaine was discovered in the trunk between the spare tire and the tire's rim.

The trial proofs included evidence, as detailed in the State's briefs, which were substantially identical, as follows: *fn2

Trooper Bell testified that he learned on the date of the arrest that neither Felton nor Moore owned the Honda. Bell also described how he, Detective John McNally and Detective Jeff McCarthy questioned Felton while at headquarters. Defendant told the officers that he graduated from North Carolina Central College and that he was employed at a Jiffy Lube as a mechanic. He explained that he and Moore were childhood friends. Felton stated Moore and his niece were driving to New York to visit somebody. He rode along with them and visited his girlfriend while in the city. Felton stated that Trooper Bell stopped them on their return trip to North Carolina. When asked about the cocaine, Felton asked for an attorney and the interrogation ceased. Next, Trooper Bell and the two detectives questioned Moore. Despite having told Trooper Bell at the scene of the stop that he had borrowed the Honda from his former employer, Cherry Used Cars, Moore informed the officers that he had purchased the Honda at an automobile auction. [Citations omitted.]

The State's proofs also included evidence regarding the search and expert testimony concerning the cocaine and its impact on defendants' intent.

A Miranda hearing was held to determine the admissibility of statements made by the defendants after their arrest. The arresting officer, State Trooper David Bell, testified at the hearing, in relevant part:

Q Now, after they were given their warnings did, were they questioned?

A Yes, sir. They were.

Q And do you recall the questioning of Mr. Felton?

A Yes.

Q And you were present ...


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