On appeal from Superior Court of New Jersey, Law Division, Union County, I-04-01-0014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Defendant, John Presiado, appeals from his conviction by a jury of fourth-degree possession of less than one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (Count One); fourth-degree possession of a switchblade knife without any explainable lawful purpose, N.J.S.A. 2C:39-3e (Count Three); fourth-degree possession of a knife under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (Count Four); and second-degree possession of a knife while in possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:39-4.1c (Count Five). Defendant was not charged in Count Two of the indictment, which pertained solely to his co-defendant, Jesse Landerway, who was not tried with defendant.
Defendant absented himself during the second day of his trial on August 18, 2004. A bench warrant was issued, and following defendant's apprehension on February 10, 2005, he was sentenced, on May 13, 2005, to one year in prison on the charge of possession of marijuana with the intent to distribute and, following merger of the fourth-degree weapons convictions into the second-degree conviction pursuant to N.J.S.A. 2C:39-4.1c, defendant was sentenced on the latter to an additional consecutive twelve-year extended term of incarceration, with a four-year parole bar. Defendant appeals, as well, from that sentence.
On appeal, defendant raises the following arguments:
THE FAIRNESS OF THE TRIAL WAS IRREPARABLY TAINTED BY THE OFFICERS' GRATUITOUS AND HIGHLY PREJUDICIAL TESTIMONY THAT THEY KNEW THE CO-DEFENDANT FROM PRIOR DRUG-RELATED CONTACTS. (Not Raised Below.)
THE COURT ERRED IN DENYING COUNSEL'S MOTION TO DISMISS THE FIFTH COUNT OF THE INDICTMENT, BECAUSE DEFENDANT HAD NOT BEEN IN POSSESSION OF A WEAPON WITHIN THE MEANING CONTEMPLATED BY THE STATUTE.
THE 12-YEAR EXTENDED TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE AND MUST ...