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State v. Montano

June 30, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EZEQUIEL MONTANO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-00164.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2008

Before Judges Winkelstein and Yannotti.

Defendant Ezequiel Montano was charged under Union County Indictment No. 03-02-00164 with possession of a controlled dangerous substance (CDS), specifically cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); and possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three). Andrea Slawinski also was charged in counts one and two.*fn1

While these charges were pending, defendant was charged under Union County Indictment No. 04-06-6691 with conspiracy to distribute or possess with intent to distribute heroin, in a quantity of five ounces or more, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count one); and conspiracy to distribute or possess with the intent to distribute cocaine in a quantity of five ounces or more, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(1) (count two).

On January 25, 26, and 27, 2005, defendant was tried to a jury on the charges in Indictment No. 03-02-00164, and found guilty on all counts. Thereafter, on February 28, 2005, defendant pled guilty to count two in Indictment No. 04-06-6691.

On April 29, 2005, the court sentenced defendant on the convictions arising from the two indictments.

With regard to the convictions under Indictment No. 03-02-00164, the judge merged the convictions on count one with the conviction on count two, and sentenced defendant on count two to a fifteen-year term of incarceration, with a 60-month period of parole ineligibility. The judge sentenced defendant to a four-year term of incarceration on count three, to run concurrently with the sentence on count two. Defendant's driving privileges were suspended for twenty-four months. The judge additionally imposed fees, penalties and assessments.

On Indictment No. 04-06-6691, the judge sentenced defendant to a seven-year custodial term, with a twenty-eight month period of parole ineligibility, to be served concurrently with the sentences imposed on Indictment No. 03-02-00164. The court also imposed fees, penalties and assessments. Defendant appeals from the convictions and sentences imposed under Indictment 03-02-00164.

Defendant raises the following issues for our consideration:

POINT I.

THE CO-DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE POLICE OFFICER'S ENTRY INTO THE HOME WITHOUT A SEARCH WARRANT CONSTITUTED AN ILLEGAL SEARCH AND SEIZURE PURSUANT TO THE NEW JERSEY CONSTITUTION.

POINT II.

THE MOTION COURT COMMITTED ERROR IN FINDING DETECTIVE SMITH'S TESTIMONY AT THE SUPPRESSION HEARING TO BE CREDIBLE, THEREBY VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT III.

DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not raised below).

POINT IV.

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTTION'S EXPERT WITNESS TO TESTIFY TO FACTS NOT CONSISTENT WITH INFORMATION IN HIS REPORT, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT V.

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO REVIEW DETECTIVE MOONEY'S PERSONNEL RECORD IN CAMERA.

POINT VI.

THE TRIAL COURT COMMITTED ERROR BY FAILING TO CHARGE THE MODEL JURY CHARGE ON IDENTIFICATION, THEREBY DENYING DEFENADNT HIS RIGHT TO A FAIR TRIAL AND ...


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