Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Myles

February 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DWAYNE MYLES, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1051.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2008

Before Judges A. A. Rodríguez, Payne and Waugh.

Defendant, Dwayne Myles, was convicted of the third-degree crimes of possession of cocaine, N.J.S.A. 2C:35-10a(1), possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and b(3), possession of cocaine with the intent to distribute it within 1,000 feet of a school, N.J.S.A. 2C:35-7, possession of heroin, N.J.S.A. 2C:35-10a(1), possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and b(3), distribution of cocaine, N.J.S.A. 2C:35-5a(1), and distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-7. Following merger, defendant was sentenced to five years of imprisonment with three years of parole ineligibility on the conviction for possession of cocaine with the intent to distribute it within 1,000 feet of a school, five years of imprisonment with two and one-half years of parole ineligibility on the conviction for possession of heroin with the intent to distribute it, and an extended term of eight years of imprisonment with four years of parole ineligibility on the conviction for distribution of cocaine within 1,000 feet of a school. All prison terms were to be served concurrently. Defendant has appealed from his conviction and sentence.

On appeal, defendant raises the following arguments:

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 PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS SOLELY ON THE BASIS OF JOINT POSSESSSION. (Not Raised Below)

A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT JOINT POSSESSION IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.

B. THE TRIAL COURT ERRED IN ITS INSTRUCTION ON THE LAW OF DISTRIBUTION AND INTENT TO DISTRIBUTE CDS BY FAILING TO MAKE IT CLEAR THAT A TRANSFER BETWEEN JOINT POSSESSORS IS NOT DISTRIBUTION.

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 BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS. (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 BY THE TRIAL COURT'S DECISION TO SUSTAIN A FIFTH AMENDMENT CLAIM BY A DEFENSE WITNESS WHO HAD PREVIOUSLY WAIVED HER FIFTH AMENDMENT RIGHTS.

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 TRIAL COURT'S FAILURE TO GRANT THE DEFENDANT'S REASONABLE REQUEST FOR AN ADJOURNMENT.

POINT V

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 VI

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 SANITIZE THE DEFENDANT'S PRIOR CONVICTIONS.

POINT VII

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 FAILURE OF THE TRIAL COURT TO PROHIBIT THE JURY FROM DRAWING ADVERSE INFERENCES FROM CRIMINAL DISPOSITION AND CHARACTER EVIDENCE. (Not Raised Below)

POINT VIII

THE SENTENCE WAS ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.