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State v. McNeil

December 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN B. MCNEIL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 00-09-0709-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2008

Before Judges Winkelstein, Fuentes and Chambers.

On September 12, 2000, a Burlington County grand jury indicted defendant, Steven McNeil, charging him with third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7 (count one); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count four); and third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count five). Prior to trial, at the State's request, the judge dismissed counts two and four.

A jury convicted defendant of the remaining counts. The trial court merged the convictions on counts three and five into the conviction on the first count and imposed an extended eight-year prison term, with four years of parole ineligibility, to be served consecutively to a sentence defendant was serving for unrelated convictions.

On appeal, defendant raises the following points for our consideration:

POINT I

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 GIVE THE JURY A COMPLETE INSTRUCTION ON THE LAW OF CREDIBILITY, INCLUDING THE LAW OF PRIOR INCONSISTENT STATEMENTS.

(Not Raised Below)

POINT 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 WHEN THE STATE'S KEY WITNESS USURPED THE FUNCTION OF THE JURY BY RENDERING AN INADMISSIBLE CONCLUSION ON THE ULTIMATE ISSUE IN THE CASE.

(Not Raised Below)

POINT 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 WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL EXPERT OPINIONS THAT SHOULD HAVE BEEN EXCLUDED.

POINT 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 STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS.

(Not Raised Below)

POINT V

THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND 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.

(Not Raised ...


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