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State v. Thomas

July 3, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER THOMAS A.K.A. ISAAC THOMAS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, 00-10-01901-I.

Before Judges Wefing, Lisa and Fuentes.

The opinion of the court was delivered by: Lisa, J.A.D.

As amended July 30, 2003.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER THOMAS A.K.A. ISAAC THOMAS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, 00-10-01901-I.

Peter Thomas, appellant pro se.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Susan B. Gyss, Assistant Prosecutor, on the brief).

Before Judges Wefing, Lisa and Fuentes.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 2, 2003

We consider in this appeal whether defendant, Peter Thomas, was wrongfully denied his right to represent himself in a criminal trial. We conclude he was; we vacate his conviction and remand for a new trial.

After a trial by jury, defendant was convicted of all five counts of the indictment, which charged him with various drug offenses arising out of a single incident. The judge merged the first four counts with count five, third-degree distribution of a controlled dangerous substance (CDS) within a school zone, N.J.S.A. 2C:35-7, on which the judge sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3a, to an extended term of seven years imprisonment with a three year parole disqualifier.

Defendant was represented by counsel in the trial court. About six weeks before trial, defendant filed a written motion to relieve his attorney and to be allowed to represent himself. After several hearings at which the judge addressed the issue with defendant, his attorney and the prosecutor, the judge denied the motion. On appeal, defendant moved before us for leave to conduct his appeal pro se. We remanded the matter to the trial court for the limited purpose of determining whether defendant's waiver of the right to counsel on appeal was knowing, voluntary and intelligent. State v. Coon, 314 N.J. Super. 426, 440 (App. Div.), certif. denied, 157 N.J. 543 (1998). A different judge conducted this hearing and concluded defendant satisfied the waiver standard. Accordingly, defendant has represented himself on appeal. He raises the following arguments.

POINT I

TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR WAIVER OF COUNSEL AND TO PROCEED PRO SE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION REQUIRING REVERSAL.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN DENYING DEFENDANT'S MOTION FOR INDEPENDENT FINGERPRINT EXAMINATION OF EVIDENCE.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR AND INFRINGED UPON DEFENDANT'S CONSTITUTIONAL RIGHTS BY DENYING DEFENDANT'S REQUEST TO HAVE ENVELOPE INDEPENDENTLY TESTED AFTER DEFENDANT RAISED QUESTION AS TO THE EXACT NATURE & COMPOSITION OF TRACE SUBSTANCE.

POINT IV

DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT BECAUSE PROBABLE CAUSE DID NOT EXIST PRIOR TO ...


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