April 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARYL AUSTIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Ind. No. 05-06-0574.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Coburn and Chambers.
On January 14, 2005, in an area of Trenton known for illegal drug activity, defendant Daryl Austin signaled an unmarked police car with a gesture and call that the officers recognized as signals used by street level drug dealers to solicit customers. When the officers in uniform exited their vehicle, defendant, who had been walking toward their vehicle, dropped a plastic baggy, later determined to contain 8.06 grams of cocaine.
Defendant was found guilty by a jury of third degree possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10(a)(1) (count one), third degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two), and third degree possession of a controlled dangerous substance with intent to distribute on or near school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count three).
At sentencing, counts one and two were merged into count three and defendant was sentenced to an extended term of seven years with a three and one-half year period of parole ineligibility. Defendant now appeals.
Defendant raises the following issues on appeal:
POINT I IT WAS ERROR NOT TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT AFTER AN UNLAWFUL INVESTIGATORY STOP WITHOUT REASONABLE SUSPICION A CRIME HAD BEEN COMMITTED.
POINT II IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR DISCOVERY OF DOCUMENTS AND INFORMATION SOUGHT IN ORDER TO ASSESS THE CREDIBILITY OF THE PROSECUTION'S WITNESSES.
POINT III IT WAS ERROR TO ADMIT THE CONTROLLED DANGEROUS SUBSTANCE INTO EVIDENCE.
POINT IV IT WAS ERROR TO ALLOW UNNECESSARY EXPERT TESTIMONY AND IN ANY EVENT HIS TESTIMONY SHOULD HAVE BEEN STRIKEN AFTER RELATING HIS OPINION TO DEFENDANT'S CONDUCT AT TWO SEPARATE TIMES DURING HIS TESTIMONY.
POINT V IT WAS ERROR NOT TO ADMIT THE OFFICERS' PATROL LOG INTO EVIDENCE.
POINT VI SEVERAL ELEMENTS OF THE COURT'S INSTRUCTIONS AND CHARGE TO THE JURY WERE IMPROPER OR INADEQUATE.
A. Two References by Expert to "Defendant".
B. Instruction to Disregard Defense Summation Regarding Witness Bias or Interest in the Outcome of the Case.
C. Instruction Not to Consider Lack of Witnesses to Corroborate Officer DiNatale's Testimony.
POINT VII DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO SUBPOENA OFFICERS PETERSON AND WATKINS IN REGARD TO THE ROLE THEY PLAYED IN THE CHAIN OF CUSTODY AND TO TEST THEIR CORROBORATION OF OFFICER'S TESTIMONY. (NOT RAISED BELOW)
POINT VIII DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO DEMAND AN EVIDENTIARY HEARING REGARDING THE CHAIN OF CUSTODY OF THE CDS. (NOT RAISED BELOW)
POINT IX DEFENDANT'S SENTENCE WAS EXCESSIVE.
We do not address the ineffective assistance of counsel issues since, in this case, those arguments are more appropriately addressed in a post-conviction relief application. See State v. Preciose, 129 N.J. 451, 460-61 (1992). With respect to the balance of the issues, after a thorough review of the record, we find that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).
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