On appeal from the Superior Court of New Jersey, Law Division - Criminal Part, Bergen County, Ind. No. 02-12-2827.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 11, 2007
Before Judges Axelrad and Sapp-Peterson.
Following denial of his motion to suppress, defendant Rahmann Reeds was convicted by a jury of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one), and second-degree possession of heroin, in a quantity of one-half ounce or more, but less than five ounces, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2) (count two), based on a search of an automobile he was operating.*fn1 On April 27, 2005, defendant's motion for a judgment of acquittal or new trial was denied. That same day, Judge John Conte granted the State's motion for a mandatory extended term as a repeat drug offender, N.J.S.A. 2C:43-6f. He merged count one and convictions of a motor vehicle summons arising out of the same incident with count two, and sentenced defendant on the latter to a fifteen-year custodial term with a six-year period of parole ineligibility made consecutive to the sentence he was serving. Appropriate mandatory monetary assessments and loss of driving privileges were imposed.
On appeal, defendant raises the following arguments through counsel:
POINT I THE TRIAL COURT REVERSIBLY ERRED IN DENYING REEDS' MOTION TO SUPPRESS THE SEIZED EVIDENCE BECAUSE (1) THAT STOP UNLAWFULLY WAS BASED UPON RACE AND (2) EVEN ASSUMING ARGUENDO THE LEGALITY OF THAT STOP, BECAUSE OF CONSTITUTIONAL IMPROPRIETIES IN PULLING PASSENGER MARK WHITLEY OUT OF THE CAR WITHOUT SUFFICIENT JUSTIFICATION AFTER THAT TRAFFIC VIOLATION STOP.
(U.S. Const. Amends IV, VI & XIV; N.J. Const. (1947) Art. I, Paras 7 & 10)
POINT II THE TRIAL COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL NEARY'S MOTION FOR A MISTRIAL BECAUSE (1) THE REQUIRED RANDOMNESS OF THE JURY PANEL WAS DESTROYED WHEN ONE PANEL OF POTENTIAL JURORS WAS RELEASED IN THE MIDDLE OF THE JURY SELECTION PROCESS AND A TOTALLY NEW PANEL WAS USED FOR THE COMPLETION OF THAT SELECTION PROCESS AND (2) BECAUSE THE PROSECUTION USED ITS PEREMPTORY CHALLENGES INAPPROPRIATELY TO DISCRIMINATE IN REMOVING BLACKS AND MORE PARTICULARLY BLACK WOMEN FROM THE JURY. (U.S. Const. Amend XIV; N.J. Const. (1947) Art. I, Paras. 5 9 and 10.)
POINT III THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE EVIDENCE REGARDING REEDS' OTHER BAD ACTS AND CRIMES SUCH AS POSSESSION OF MARIJUANA BLUNTS, AND PROVIDING A FALSE NAME TO AVOID ARREST AND PROSECUTION UNDER N.J.R.E. 404B. (U.S. Cont. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (NOT RAISED BELOW)
POINT IV THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUSTAIN DEFENSE COUNSEL'S OBJECTION THAT DETECTIVE SWAN, THE STATE'S EXPERT WITNESS, EXCEEDED THE BOUNDS OF LEGITIMATE TESTIMONY BASED UPON A HYPOTHETICAL QUESTION IN GOING BEYOND WHETHER THAT SCENARIO WAS CONSISTENT WITH DISTRIBUTION RATHER THAN PERSONAL USE TO AN OPINION THAT REEDS AND THE CO-DEFENDANTS ALL HAD CONSTRUCTIVE POSSESSION OF THE HEROIN WHICH WAS THE PRIMARY ISSUE WHICH THE JURY HAD TO DECIDE. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10)
POINT V REEDS' CONVICTIONS AND SENTENCE SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT IN EXCEEDING THE SCOPE OF LEGITIMATE COMMENT ON SUMMATION AND ARGUING WELL BEYOND THE SCOPE OF THE UNDERLYING RECORD IN HER SUMMATION. (U.S. Const. Amend. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (PARTIALLY RAISED BELOW)
POINT VI THE TRIAL COURT REVERSIBLY ERRED IN DENYING REEDS' MOTIONS FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT EACH OF THE ELEMENTS OF THE CRIMES CHARGED INCLUDING THAT REEDS WAS IN ACTUAL OR CONSTRUCTIVE POSSESSION OF THE HEROIN WHICH WAS FOUND BEHIND CO-DEFENDANT MARK WHITLEY'S LEGS AND UNDER HIS FEET ON THE FLOOR OF THE PASSENGER SIDE OF THE VEHICLE'S FRONT SEAT. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10)
POINT VII REEDS' FIFTEEN-YEAR PRISON TERM WITH SIX YEARS OF PAROLE INELIGIBILITY WAS ILLEGAL AND EXCESSIVE BECAUSE THE COURT INAPPROPRIATELY GRANTED THE PROSECUTOR'S MOTION FOR AN EXTENDED TERM AND BECAUSE THE COURT IMPROPERLY DETERMINED THE ...