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State v. McAllister

August 7, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL E. MCALLISTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-12-0778.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 12, 2008

Before Judges Cuff and Simonelli.

A grand jury indicted defendant Daniel E. McAllister for first degree maintaining or operating a premises, place or facility used for manufacturing a controlled dangerous substance (CDS) (marijuana), contrary to N.J.S.A. 2C:35-4 (count one), and first degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count two).

Defendant filed a motion to compel the State to disclose the identity of a confidential citizen informant who had provided information the police relied upon to obtain a search warrant for defendant's home, where 293 marijuana plants were found; and to compel the State to provide two audiotapes of the informant's calls to the police on October 8, 2002. Judge Paul Armstrong entered an order on February 19, 2004, denying the motion. On May 6, 2004, we denied defendant's motion for leave to appeal.

Defendant also filed a motion for a Franks*fn1 hearing and to bar admission of evidence obtained during the search. Judge Armstrong entered an order on May 24, 2004, denying the motion.

Defendant then pled guilty to both counts in the indictment. Judge Gasiorowski imposed concurrent ten-year terms of imprisonment with a three year, three month period of parole ineligibility. The judge also imposed the appropriate fine, assessment, fee, and penalty, and suspended defendant's driver's license for two years.

Defendant appeals from the February 19, 2004 and May 24, 2004 orders.*fn2 On appeal, defendant raises the following arguments:

POINT I

IN REVIEWING A LAW DIVISION DECISION OF MOTIONS TO SUPPRESS EVIDENCE AND TO DISCLOSE THE IDENTITY OF AN INFORMANT, THE APPELLATE DIVISION AFFORDS NO DEFERENCE TO LEGAL CONCLUSIONS MADE BY THE LAW DIVISION.

POINT II

NEW JERSEY RULE OF EVIDENCE 516 REQUIRED DISCLOSURE OF THE IDENTITY OF THE CITIZEN INFORMANT UTILIZED BY THE STATE.

A. The Telephone Calls Represent the Most Important Piece of Evidence In Support of the State's Application for the Search Warrant.

B. The Evidence Obtained By the "Citizen" Informant Was Probably Obtained As a Result of an Illegal Entry Into the Defendant's House.

C. The Trial Court's Decision Represents Plain and Reversible Error.

i. The Trial Court Erred By Treating As Relevant the Degree of the Informant's Involvement in the Underlying Alleged Criminal Act.

ii. The Trial Court Erred By Requiring An Impossible Burden of Proof Respecting the Defendant's Claim That the ...


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