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State v. Berry

March 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON EDWARD BERRY, JR., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ZAKIYA T. AKINS, DEFENDANT-APPELLANT.*FN1



On appeal from the Superior Court of New Jersey, Law Division, Warren County, 04-12-0477-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 7, 2007

Before Judges Cuff, Winkelstein and Fuentes.

Following a jury trial, co-defendants Leon Berry and Zakiya Akins were convicted of third-degree money laundering, N.J.S.A. 2C:21-25a, and disorderly persons possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). The judge sentenced Akins to a two-year period of probation, with a concurrent fourteen-day term of incarceration, representing time served; and Berry to a five-year prison term, with a two-year period of parole ineligibility on the money laundering conviction, and to time served on the marijuana possession conviction. On appeal, each defendant raises the same three issues:

POINT ONE:

THE TESTIMONY OF THE STATE'S EXPERT WITNESS WAS IMPROPERLY ADMITTED BY THE TRIAL COURT

POINT TWO:

THE EXPERT WITNESS'S TESTIMONY IMPROPERLY EXCEEDED FACTS SET FORTH IN THE ORIGINAL HYPOTHETICAL POSED BY THE PROSECUTOR

POINT THREE:

THE WITHDRAWAL OF THE MOTION TO SUPPRESS BY DEFENDANT'S ATTORNEY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL

We affirm, but do so without prejudice to each defendant to raise an ineffective assistance of counsel argument in a post-conviction relief application.

The facts are derived from the trial evidence. On July 24, 2004, Pennsylvania State Police Corporal Brian Vennie was patrolling the Delaware River joint toll bridge on Interstate Route 80 between Monroe County, Pennsylvania, and Warren County, New Jersey. At approximately 8 p.m., he stopped a vehicle traveling seventy-five miles-per-hour in a fifty mile-per-hour zone. Though the officer's "zone of radar" was in Pennsylvania, the stop occurred in New Jersey. Berry was the driver and Akins, the owner of the vehicle, was the passenger.

After stopping the car, Vennie approached the driver's side and detected a strong odor emanating from the vehicle which, from his prior experience, he knew to be the smell of burnt marijuana. Upon initial contact with Berry, the officer noticed small ashes on Berry's shirt, near his chest; from the officer's experience, he believed the ashes were from a marijuana cigarette. Vennie also noticed, on the floor behind the driver's seat, a "baggie" of rubber bands of the type he believed were typically used to package marijuana. He did not observe any marijuana packaged in that cluster of rubber bands. The officer also saw a backpack on the backseat.

After speaking with Berry and asking him to move the vehicle to a safer location, the officer asked Berry and Akins for identification, which they each provided. While speaking with them, the officer observed a small amount of leafy green vegetable matter, which appeared to be marijuana residue, on the center console of the vehicle.

The officer issued Berry a traffic citation. He then directed Akins to the rear of the vehicle, where he spoke with her about the items he had seen inside her vehicle. At this point, he noticed that her eyes were yellowed, "glassy," and bloodshot, and that she smelled of marijuana. She told him she had been smoking marijuana in the car. Vennie then spoke with Berry, who also admitted to smoking marijuana in the vehicle.

The officer asked defendants if he could search the vehicle to see if they had any additional marijuana and they agreed to the search. Before Vennie began the search, two United States Park Service Rangers arrived.

Upon inspection of the interior of the car, Vennie noticed that the backpack that he had seen earlier had been moved from the rear seat to between the front seats. When he opened it he saw "wads" of money, wrapped in rubber bands and plastic bags. He then closed the backpack and stepped away from the vehicle, without searching under the seats, because once he saw the money, he ...


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