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State v. Potter

July 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIC E. POTTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 04-12-3036.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 9, 2007

Before Judges Payne and Graves.

Defendant Eric E. Potter appeals from his conviction, following a jury trial in June 2005, for third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of heroin with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three). At sentencing, counts one and two were merged into count three, and, because defendant was a repeat drug offender, the court imposed an extended-term sentence of seven years with a three-year parole disqualifier for the school-zone conviction. This term was consecutive to another extended-term sentence of seven years with a three-year parole disqualifier, which we recently affirmed in an unpublished opinion. State v. Potter, No. A-4213-04 (App. Div. June 25, 2007).

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS[.]

POINT II

THE TRIAL COURT ERRED BY NOT ALLOWING THE DEFENDANT TO REPRESENT HIMSELF.

POINT III

THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE DEFENDANT WOULD BE ADMISSIBLE IF HE TESTIFIED[.]

POINT IV

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL[.]

POINT V

THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL[.]

POINT VI

THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

With respect to defendant's first point, we affirm the denial of defendant's motion to suppress substantially for the reasons articulated by the trial court. However, because we agree with defendant's second point----the trial court erred when it denied defendant's request to represent himself----we vacate defendant's judgment of conviction and remand for a new trial. Accordingly, ...


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