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State v. Carter

May 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL CARTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-0722.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 2, 2008

Before Judges Payne and Messano.

Defendant Michael Carter appeals from the judgment of conviction and the sentence imposed after a jury convicted him of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and 2C:35-7, and third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). At sentencing, the trial judge merged all counts into the school zone conviction and sentenced defendant to five years imprisonment with a three-year parole disqualifier. The appropriate financial penalties and driver's license suspension were also imposed.

On appeal defendant raises the following issues for our consideration:

POINT I.

[THE] TESTIMONY OF A STATE'S WITNESS[,] WHO WAS NEVER QUALIFIED AS AN EXPERT AND WHO OFFERED HIS OPINION ON THE ULTIMATE ISSUE FOR THE JURY TO DECIDE, CONSTITUTED PLAIN ERROR. (Not Raised Below)

POINT II.

DEFENDANT'S PRO SE MOTION TO SUPPRESS THE SEIZURE OF EVIDENCE FROM [A CO-DEFENDANT] SHOULD HAVE BEEN HEARD AND DECIDED ON THE MERITS.*fn1

POINT III.

THE SENTENCE WAS EXCESSIVE.

We have considered these arguments in light of the trial record and applicable legal standards. We reverse and remand for a new trial.

I.

On the day of trial, but before jury selection commenced, defendant moved to suppress evidence that was seized from co-defendant Yolanda Scruggs.*fn2 Defense counsel, who was new to the case, advised the court that defendant wished to pursue the motion, but prior counsel "told him there was no basis for [it]." The judge denied the request, indicating only that the "application [was] being made . . . moments before the panel selection for th[e] trial and the indication being that prior counsel in their judgment reviewed the matter, [and] determined it not to be meritorious." A jury was then selected and the trial began.

The State's first witness was Detective Mike Sutton of the New Brunswick police department, an eleven-year veteran who had received training in narcotics investigations. On April 2, 2004, he was conducting surveillance at the intersection of Remsen Avenue and Seaman Street, a location he described as "a high drug trafficking area," with "open air drug sales," and "the scene of numerous arrests in the past." Sutton observed Scruggs, "a female known to [him]" walk into the area. When asked why she caught his ...


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