On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-12-1429.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 6, 2006
Before Judges Cuff, Lintner and Parrillo.
Following a jury trial, defendant Francis S. Walker was convicted of third degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count One); third degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); and third degree maintaining a fortified premises, contrary to N.J.S.A. 2C:35-4.1c (Count Three). Following merger of Count One into Count Two, defendant was sentenced to consecutive four-year terms of imprisonment on Counts Two and Three. The appropriate fees, fines, penalties, assessments and license revocation were also imposed.
On appeal, defendant raises the following arguments:
THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE MANNER IN WHICH LAW ENFORCEMENT EXECUTED THE SEARCH WARRANT WAS UNREASONABLE UNDER THE FEDERAL AND STATE CONSTITUTION[S].
N.J.S. 2C:35-4.1 IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. (Not raised below.)
THE TRIAL JUDGE'S INSTRUCTION TO THE JURY ON THE CHARGE OF FORTIFYING A STRUCTURE WAS LEGALLY DEFICIENT.
DETECTIVE FRANKLIN'S EXPERT OPINION THAT THE PREMISES WERE FORTIFIED, AND THAT DEFENDANT POSSESSED DRUGS FOR THE PURPOSE OF DISTRIBUTION WERE IMPROPERLY ADMITTED.
DEFENDANT'S SENTENCE VIOLATED THE STATUTORY DOUBLE JEOPARDY PROHIBITION CONTAINED IN N.J.S. 2C:1-8 AND WAS OTHERWISE EXCESSIVE.
A judge issued a warrant to search the second floor of 826 George Street in Plainfield. The warrant did not authorize a "no-knock" entry to the premises.
During the afternoon of October 2, 2001, police officers positioned themselves to execute the warrant. Sergeant Michael Richards conducted surveillance and relayed his observations via radio. From his surveillance location, Richards observed Kareem Tucker*fn1 standing on the deck of the apartment and communicating with someone inside through a hole where the doorknob is normally located. Moments later, Richards relayed that he observed an unidentified female speak into the hole in the door, pass money through the hole, and receive a small object in return. Once ...