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State v. Evans

February 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELLY M. EVANS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 02-04-00471-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2007

Before Judges Wefing, R. B. Coleman, and Lyons.

Tried to a jury, defendant was convicted of conspiracy, N.J.S.A. 2C:5-2; possession of cocaine, N.J.S.A. 2C:35-10(a)(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2); possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-5(a), 35-7; possession of cocaine with intent to distribute on or near a public park, N.J.S.A. 2C:35-5(a), 35-7.1; and resisting arrest, N.J.S.A. 2C:29-2(a)(2). The trial court sentenced defendant to an aggregate term of ten years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

The Anti-Crime Unit of the New Brunswick Police Department conducted a surveillance operation of the premises located at 94 Comstock Street. They eventually obtained a search warrant for those premises, which they determined to execute on Sunday, January 20, 2002. Lieutenant Paul Schuster, who was directing the operation, saw defendant Evans enter the premises and leave after approximately twenty minutes. Lt. Schuster was familiar with defendant, and he radioed instructions to officers in nearby backup units that defendant be stopped. When defendant saw police vehicles approaching, he began to run. Officers pursued him on foot; during the chase, he was seen to discard a plastic bag. He was eventually apprehended and placed under arrest. The officers retrieved the bag they had seen defendant discard; it contained fifty-five smaller bags of what was later determined to be rock cocaine weighing less than one-half ounce.

The officers then executed the search warrant for 94 Comstock Street, which they had originally believed to be a single-family residence. When they entered the building, they learned that it contained two dwelling units. The first floor was occupied by Benjamin Barnes and his family, the second by Terrell Williams. The police searched only the second-floor unit. When they entered, they observed a large poster-size picture of defendant on the wall. Terrell Williams, who was tried with defendant, was found in the apartment. A search of that apartment turned up additional quantities of rock cocaine, with a total weight of more than one ounce, together with cash, an electronic scale, a police scanner, boxes of plastic sandwich bags and an identification card with defendant's picture. They also recovered a fully-loaded handgun from underneath a chair in the living room.

On appeal, defendant raises the following arguments:

POINT I

THE COURT'S INSTRUCTION--THAT IN DECIDING THE POSSESSION ELEMENT IN COUNTS TWO, THREE, FOUR, AND FIVE, THE JURY COULD CONSIDER WHETHER DEFENDANT POSSESSED EITHER THE DRUGS FOUND IN THE HOUSE, OR THE DRUGS FOUND IN THE STREET--INVITED A NON-UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S STATE AND CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW. HENCE, HIS CONVICTIONS ON THOSE COUNTS MUST BE REVERSED AND REMANDED FOR A NEW TRIAL.

POINT II

THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR WARRANTS TO SEARCH EVANS AND 94 COMSTOCK STREET WAS INSUFFICIENT TO SUSTAIN A FINDING OF PROBABLE CAUSE.

POINT III

THE TRIAL COURT ERRONEOUSLY RULED THAT DEFENDANT WAS NOT ENTITLED TO A FRANKS EVIDENTIARY HEARING; HENCE, A REMAND FOR A ...


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