On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1738-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
On January 31, 2006, a jury convicted defendant, George Alston, of third-degree possession of heroin (count one of Hudson County Indictment No. 04-10-1738); third-degree possession of heroin with intent to distribute (count two); third-degree possession of heroin with the intent to distribute within a school zone (count three); third-degree distribution of heroin (count five); and third-degree distribution of heroin within a school zone (count six). Prior to trial, counts four and seven were dismissed at the request of the prosecutor, and the jury was unable to reach a unanimous verdict on count eight, which charged defendant with resisting arrest. Count eight was subsequently dismissed on motion by the prosecutor.
On February 6, 2006, pursuant to a negotiated plea agreement, defendant pled guilty to third-degree possession of heroin with intent to distribute within a school zone (count three of Hudson County Indictment No. 05-03-0449), and third-degree aggravated assault (count nine). In return for the guilty pleas, the State agreed to request the dismissal of the remaining counts of the indictment, and to recommend an eight-year sentence with four years of parole ineligibility on count three and a four-year sentence on count nine. The State also agreed to recommend that these sentences would be concurrent with the sentence imposed on Indictment No. 04-10-1738.
At sentencing on April 13, 2006, counts one, two, three, and five of Indictment No. 04-10-1738 were merged into count six (third-degree distribution of heroin within a school zone). Because he was a repeat drug offender, defendant was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and the court imposed a ten-year prison sentence with five years of parole ineligibility on count six. On Indictment No. 05-03-0449, defendant was sentenced in accordance with the plea agreement to an eight-year concurrent term with a four-year period of parole ineligibility on count three, and a four-year concurrent term on count nine. Appropriate fees and penalties were also imposed.
On appeal, defendant makes the following arguments:
POINT I DEFENSE COUNSEL'S INEFFECTIVE AND INADEQUATE CROSS-EXAMINATION OF THE STATE'S KEY WITNESS ENABLED THE OFFICER TO GIVE HIGHLY PREJUDICIAL HEARSAY TESTIMONY, REINFORCED HIS DIRECT TESTIMONY, FAILED TO CHALLENGE THE ACCURACY OF THE OFFICER'S OBSERVATIONS, AND ENHANCED HIS CREDIBILITY AS AN EXPERT IN NARCOTICS ENFORCEMENT. ACCORDINGLY, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, WHICH DENIED HIM A FAIR TRIAL. U.S. CONST. AMEND. VI & XIV; N.J. CONST. (1947) ART. I, PAR. 10.
A. DEFENSE COUNSEL'S OPEN-ENDED QUESTIONS TO THE OFFICER ENABLED HIM TO GIVE HIGHLY PREJUDICIAL HEARSAY TESTIMONY THAT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHTS.
B. THE OFFICER'S TESTIMONY, EVEN IF RELEVANT, SHOULD HAVE BEEN EXCLUDED BECAUSE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.
C. THE OTHER DEFICIENCIES IN DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE OFFICER CONTRIBUTED TO UNDERMINING DEFENDANT'S RIGHT TO A FAIR TRIAL AND CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED DEFENDANT A FAIR TRIAL WHEN THE COURT FAILED TO, SUA SPONTE, INSTRUCT THE JURY TO DISREGARD THE OFFICER'S TESTIMONY ...