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State v. Foster

June 6, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRELL FOSTER, A/K/A CALVIN FROST, DARNELL FROST AND DARUNELL FROST, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0847.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2007

Before Judges Winkelstein and Baxter.

Defendant Darrell Foster appeals from his conviction on a charge of possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10 (count one), and unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b) (count six). The State dismissed counts two through five approximately one month prior to trial. The court sentenced defendant to a four-year concurrent term of imprisonment on each count. Appropriate fines and penalties were imposed.

On appeal, defendant raises the following claims:

I. PROSECUTORIAL MISCONDUCT, DURING CROSS-EXAMINATION OF THE DEFENDANT, DEPRIVED HIM OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Partially Raised Below).

II. THE DEFENDANT'S AGGREGATE SENTENCE OF FOUR YEARS FOR POSSESSION OF COCAINE AND POSSESSION OF A HANDGUN IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We disagree with both of these arguments and affirm.

I.

On January 9, 2005, Detective Elias Garcia of the Newark Police Department was conducting undercover narcotics surveillance near 49-A Broad Street with two other detectives. While Garcia was waiting for backup units to arrive to transport an individual he had arrested for narcotics activity, he noticed another person, later identified as defendant, walk into the apartment complex. According to Garcia's testimony, as soon as the marked transport van arrived on the scene, defendant recognized the police presence and tossed a clear plastic bag to the ground and then started walking toward Broadway. Garcia retrieved the discarded bag, and after discovering that it contained fourteen "jugs" of suspected cocaine, he began to pursue defendant. After a brief foot chase, defendant was apprehended. Garcia searched him, and according to his testimony, discovered a loaded .22 caliber handgun in defendant's waistband. The substance in the bag was field-tested and found to be cocaine.

Defendant testified that he was in the vicinity of 49-A Broad Street walking across the courtyard of the apartment complex to visit a friend when he was arrested because he was unable to produce any identification. He testified that although police searched him both before he was placed in the police vehicle and after he arrived at the station house, the only item found in his possession was $67. He denied running away from any police officers, maintaining that he merely "walked away," and denied possessing either the fourteen "jugs" of cocaine or the firearm allegedly found in his waistband, asserting that the first time he saw the cocaine was in court, and the first time he saw the gun was at the police station.

On cross-examination, the prosecutor asked defendant if he had lied to police about his age. The ...


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