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State v. Hancock

December 5, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM P. HANCOCK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2224.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2008

Before Judges Cuff, Fisher and Baxter.

In this appeal, we consider, among other things, (1) whether the prosecutor's comments during summation improperly infringed on defendant's Fifth Amendment right to remain silent, (2) whether the trial judge erroneously failed to pose questions during voir dire regarding the Fifth Amendment right to remain silent, and (3) whether the trial judge correctly handled the peculiar circumstances that arose when the jury returned its verdict. We reject defendant's arguments and affirm.

Defendant was indicted and charged with a single count of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). At the conclusion of a two-day trial, defendant was found guilty as charged; he was later sentenced to an eight-year prison term, with a four-year period of parole ineligibility.

Defendant appealed, presenting the following arguments in seeking reversal of the judgment of conviction:

I. THE STATE'S ARGUMENT THAT THE DEFENDANT IS GUILTY BECAUSE HE REMAINED SILENT VIOLATES THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION.

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESS HAD FIRSTHAND KNOWLEDGE OF THE FACTS (Not Raised Below).

III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION (Partially Raised Below).

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO ASK THE DEFENDANT'S PROPOSED VOIR DIRE QUESTIONS PERTAINING TO THE PRIVILEGE AGAINST SELF-INCRIMINATION, MAKING IT IMPOSSIBLE TO SELECT A FAIR AND IMPARTIAL JURY.

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE . . . TO REQUIRE THE JURY TO RE-DELIBERATE AFTER THE COURT HAD ANSWERED A JURY QUESTION.

VI. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL DETENTION OF THE DEFENDANT.

VII. THE SENTENCE IS EXCESSIVE

A. The Defendant Was Improperly Sentenced To An Extended Term.

B. The Trial Court Improperly Balanced The Aggravating And Mitigating Factors.

C. The Court Made Findings Of Fact To Enhance The Sentence.

We find insufficient merit in the arguments contained in Points II, III, VI and VII to warrant ...


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