On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 98-11-573.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
After his motion to suppress was denied, defendant was convicted by jury of eight counts of an indictment charging him with conspiracy, and possessory and distribution violations of the controlled dangerous substances laws involving cocaine on four days in 1998. After merger of offenses, he was sentenced to an aggregate term of eleven years in the custody of the Commissioner of Corrections with three years to be served before parole eligibility.
On this appeal defendant argues:
POINT I DUE TO THE STATE'S UNCONSTITUTIONAL SEARCH AND SEIZURE, DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT II DUE TO DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION HAVING BEEN VIOLATED, HIS CONFESSION SHOULD HAVE BEEN DEEMED INADMISSIBLE.
POINT III DEFENDANT'S SENTENCE MUST BE VACATED. (PARTIALLY RAISED BELOW)
A. The Extended Term Must Be Vacated Because
The Prosecutor's Decision To Seek The Extended Terms Was An Arbitrary And Capricious Exercise Of Prosecutorial Discretion.
B. The Sentencing Court Erred By Recognizing Inappropriate Aggravating Factors. (Not Raised Below)
In his pro se supplementary brief defendant adds the following:
POINT I THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY THAT DRUG QUANTITY IS A NECESSARY ELEMENT TO THE UNDERLYING OFFENSE SET FORTH IN THE POSSESSION COUNTS OF THE INDICTMENT. (Not Raised Below.) U.S. CONST. AMENDS. V, VI, ...