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State v. Rose

December 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HYKEEM ROSE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0011.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2008

Before Judges Reisner and Alvarez.

Defendant, Hykeem Rose, appeals his convictions and sentence for various drug possession offenses. We affirm the convictions and affirm the sentence imposed on counts one through four of the indictment. We vacate and remand as to the sentence on counts eight through eleven.

Defendant was found guilty by a jury of third-degree unlawful possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5 (count two); third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count four); third-degree unlawful possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count eight); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count nine); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7 (count ten); and second-degree possession of cocaine with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.1 (count eleven).*fn1 He was acquitted on all other counts.

Defendant was sentenced on August 11, 2006, to a ten-year term of imprisonment with five years of parole ineligibility on count four, second-degree possession of heroin with intent to distribute within 500 feet of certain public property. Counts one, two, and three were properly merged by the sentencing judge into count four. Defendant was sentenced in the first-degree range to a mandatory extended term, N.J.S.A. 2C:43-6(f), of fifteen years with seven years of parole ineligibility on count ten, third-degree possession of cocaine with intent to distribute within 1000 feet of school property. Counts eight and nine were merged into count ten. The court sentenced defendant separately on count eleven, second-degree possession of cocaine with intent to distribute within 500 feet of certain public property, to ten years with five years of parole ineligibility. All sentences were to be served concurrently.

Defendant raises the following points in his brief:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT A HEARING TO DECIDE WHETHER A MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED

POINT III

THE COURT ERRED BY NOT ALLOWING THE DEFENDANT TO RETAIN ANOTHER ATTORNEY OR TO REPRESENT HIMSELF

POINT IV

THE TRIAL COURT ERRED BY NOT ENTERING A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE WHICH WAS ...


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