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State v. Avans

June 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ROHAN AVANS, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 97-11-1524.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 5, 2007

Before Judges Coburn and Axelrad.

Tried to a jury, defendant Rohan Avans was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one) and first-degree possession with intent to distribute cocaine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two). The court sentenced defendant to a four-year term on count one and a concurrent fifteen-year term on count two. The appropriate mandatory applicable fines and assessments were also imposed.

On appeal, defendant argues:

POINT I

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO APPEAR FOR TRIAL BY CONTINUING TRIAL WITHOUT HIM ON THE THIRD DAY (PLAIN ERROR).

A. A DEFENDANT HAS A FUNDAMENTAL CONSTITUTIONAL RIGHT TO BE PRESENT FOR EVERY STAGE OF TRIAL.

B. TRIAL CANNOT PROCEED WITHOUT THE DEFENDANT UNLESS HE HAS WAIVED HIS RIGHT TO APPEAR.

C. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO APPEAR BECAUSE IT PROCEEDED IN ABSENTIA WITHOUT EVER FINDING THAT DEFENDANT HAD EITHER EXPRESSLY OR IMPLIEDLY WAIVED HIS RIGHT, AND THE RECORD BELOW DIDN'T SUPPORT EITHER FINDING.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DETECTIVE DIXON TO TESTIFY AS THE STATE'S EXPERT WITNESS (PLAIN ERROR).

A. EXPERT TESTIMONY IS PERMISSIBLE IN AN INTENT TO DISTRIBUTE DRUGS CASE WHERE THE AVERAGE JUROR NEEDS HELP ...


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